Two weeks ago, the U.S. Supreme Court struck down the eviction moratorium imposed by the Centers for Disease Control and Prevention (CDC) as an anti-COVID measure. The reasoning of the court’s opinion, however, would support the CDC if it imposed a vaccine mandate. So also would settled law regarding the states’ authority over public health.
There are many vaccine mandates already in force in America.
Members of the armed forces are subject to mandated COVID vaccinations. Americans over a certain age were, as infants, inoculated against small pox – we have life scars on our arms to prove it.
Every state requires vaccinations against diphtheria, tetanus, “Hib” influenza, measles, mumps, rubella, chicken pox, polio and pertussis for children to attend childcare, pre-K, kindergarten and elementary schools. Since attendance at elementary school is a government mandate on the entire population (home schooling is a limited exception), these vaccine requirements for attending school are effectively compulsory vaccine mandates.
Similarly, every immigrant to the United States must be vaccinated against 14 communicable diseases, including measles, mumps, rubella, and “seasonal influenza.” Immigrants crossing America’s border to seek asylum have been released, pending their hearings, into the general U.S. population without vaccinations, threatening U.S. citizens and legal residents with the spread of many diseases including COVID.
It is anomalous that some politicians who have criticized the Biden administration over this immigration policy also oppose a COVID vaccine mandate. Whether they are asylum-seekers or legal residents, unvaccinated individuals will spread infectious disease is a legitimate risk that mandatory vaccinations can control for.
States have the authority to order vaccine mandates under their police powers, a category of authority reserved to the states under the 10th Amendment.
In 1905, the U.S. Supreme Court upheld Massachusetts’ smallpox vaccination requirement for all residents of towns whose health authority had prescribed it. That ruling is still valid. Unlike the states, the federal government does not possess general “police powers,” to provide for the health, welfare, and safety of its citizens.
Rather, the federal government must find its authority under a specific grant in the U.S. Constitution. Since the New Deal, federal courts have found that power in the constitutional clause allowing the federal government to regulate interstate commerce. In the case of COVID, there is a particularly strong argument that interstate travel can undermine any single state’s decision to require vaccines, so that a federal solution is required.
Indeed, that was the rationale behind the 1944 law that the CDC relied upon for its eviction moratorium: “The Surgeon General [now the CDC] . . . is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States . . . or from one State . . . into any other State.”
The statute permits “inspection,” “sanitation,” and “such other measures, as in his judgment may be necessary.” That should cover a vaccination mandate. The court majority ruled that did not reach an eviction moratorium, however. The CDC had argued evicted tenants were likely to travel to other states, spreading COVID. In rejecting that claim, the court noted that since vaccinations had increased, evicted people were now less likely to spread COVID even if they traveled interstate. That conclusion, however, proves the legal point that a federal vaccine mandate would be constitutional.
The court held that interstate commerce was affected by vaccinations. Congress uses analogous authority to supervise food safety, regulating interstate commerce by preventing unwholesome food from crossing state lines.Hence, either the states under their police power, or the CDC under existing federal law, could impose a COVID vaccine mandate. Exemptions could be provided for those with proven antibodies from having recovered from COVID, or for religious objections, without eviscerating the overall effectiveness of such a mandate.
America has an adequate supply of vaccines. What appears to be lacking is the political will, not the constitutional authority, to mandate their use.
Tom Campbell is a professor of law and a professor of economics at Chapman University. He teaches a course in separation of powers under the U.S. Constitution and authored a constitutional law text, “Separation of Powers in Practice.” He was a member of Congress for five terms and served on the Judiciary Committee.
