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The Federal Vaccine Mandate is Unconstitutional. Period.

October 25, 2021

Many people are objecting to the mandate to get vaccinated and there are a number of lawsuits working through the courts. For the most part, people are arguing for an exemption. The core question should be “Does the Federal Government have the legal authority to issue a vaccine mandate?” In a word, no.

State Vaccine Mandates Can be Permissible

The foundational and still-controlling legal authority is Jacobson v. Mass, 197 U.S. 11 (1905). In that case, the U.S. Supreme Court let stand a vaccine mandate issued by a town. The Court reasoned that the town’s legal authority flowed from the State’s general police powers. Massachusetts law empowered local boards of health to mandate vaccines for when a contagious disease has an outbreak. During a Small Pox outbreak, the Cambridge board of health mandated that all adults who were fit candidates had to be vaccinated or pay a $5 fine. The Supreme Court found that the concern about an outbreak of a deadly and contagious disease justified this use of the state’s police powers.

The Court acknowledged the states’ inherent police power regarding public health and discussed why Massachusetts’ mandatory vaccination law was reasonable. It found the small pox vaccine “strongly tends to prevent the transmission or spread of this disease…” but conceded not everyone believed the vaccine prevented the disease, however it was generally held to have the “decided tendency to prevent the spread of this fearful disease and to render it less dangerous to those who contract it.” Jacobson at 34 (quoting Matter of Viemeister v. White, 88 A.D. 44, 84 N.Y.S. 712 (N.Y. App Div. 1903)[1].

The Tenth Amendment, though often ignored or neglected, explicitly excludes powers to the federal government that are not granted to it in the Constitution (or implied by the powers that are granted), the effect is that the federal government does not have general “police powers”. The legal phrase describing the federal government is that it has “limited and enumerated powers.”

The Tenth Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Taken together, the Tenth Amendment and Jacobson leave no doubt that the ability to create vaccine mandates belongs to the states. The Federal Government has NO authority to issue vaccine mandates. A state’s mandates will be upheld as long as it isn’t enacted or enforced in an unreasonable, arbitrary or oppressive manner (see Jacobson, at 39,40), so the Supreme Court’s refusal to stop the Maine mandate is not surprising.

The Supremacy Clause Does Not Rescue Biden’s Mandate

The Supremacy Clause makes it crystal clear that in areas where the feds have Constitutional authority, federal law overrides any state or local law to the contrary. Think of it as the inverse of the Tenth Amendment. For a federal law (or regulation or executive order) to be “supreme”, it must first be Constitutionally permissible. A federal vaccine mandate[2] is void ab initio!

Did Biden Issue a Vaccine Mandate?

Biden knows he doesn’t have the legal authority to issue a direct vaccine mandate, so his mandate is masquerading as a work rule to hide it behind the Interstate Commerce Clause. Nevertheless, by creating a coercive choice between destitution and submission, there is no way to see his actions as anything other than an attempt to appropriate state powers that are denied to him. If “a rose by any other name would smell as sweet[3],” then this is a mandate. This mandate-disguised-as-a-work-rule is such a cynical attempt to “work around” the federal government’s lack of authority to issue a mandate any federal judge should see through it.

Jacobson is old, bit it is still the law

Jacobson age implies very strong stare decisis (think a snowball rolling down a hill). Any change would re-write the relationship between the states and the federal government, and essentially repeal the 10th Amendment. Truly, if the federal government can use the Interstate Commerce clause to decide what medicine you have to take if you want to be able to work, there is nothing to stop it from preventing you from being employable if you eat French fries, or drink alcohol, or have unprotected sex, or have too many kids, etc.

It’s Not About the Vaccine, It’s about the Unconstitutional Order

Biden is aware[4] the power to issue vaccine mandates rests with the states. There is no COVID exception to the Constitution. At the time the Constitution was drafted, the Founders were well acquainted with plagues and outbreaks of various disease. Such occurrences were a fact of life for them, and yet they refused to create special “plague” or pandemic powers for the federal government. Since Biden is actively attempting to over-reach the limits on his power, and subvert the explicit authority of the states, he has become an active threat to the Constitution.

Biden’s actions violate the Tenth Amendment. Every federal employee (and every lawyer) swears an oath to protect the Constitution. Our obligation is to oppose the mandate and all efforts by this administration to appropriate powers that belong to the states and to coerce the people. The Constitution can’t protect itself.

[1] It makes one wonder, given the vaccine’s poor performance in that it doesn’t prevent people from catching the or spreading the disease, and its ability to mitigate the severity of the disease is questionable, would the Jacobson court have found a state COVID-19 vaccine mandate permissible. [2] Conceivably, a vaccine mandate as part of a national defense situation would likely be permissible, but, unless President Biden is going to declare the pandemic to have been an act of biological warfare, which would endanger his family’s revenue stream, that won’t happen for COVID-19 [3] Romeo and Juliet, Act 2 Scene 2, Wm. Shakespeare. [4] To the extent that he is aware of anything.


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