Expect State and Federal Employee Vaccine Mandates to Stand

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Walmart pharmacist Carmine Pascarella administers a Moderna coronavirus vaccine to Jeff Stone inside a Walmart department store in West Haven, Conn., February 17, 2021. (Mike Segar/Reuters)

Our Brittany Bernstein reports on the beginning of what is sure to become a trend as the more infectious Delta variant of COVID-19 spreads: state and federal mandates requiring public employees to get vaccinated. It is inevitable that these mandates will be challenged in court.

Expect them to be upheld. To understand why, consider a decision I wrote about last week — a federal district court’s sustaining of Indiana University’s vaccination mandate for students.

Judge Damon Leichty, a Trump appointee, reasoned that the university, which is public, is thereby an arm of the state. This is significant because it puts the university, vis-à-vis its students, in a position analogous to a public agency (whether federal or state) vis-à-vis its employees. If Judge Leichty is correct that the university has the discretion to impose a vaccine mandate, notwithstanding the students’ recognized interests in bodily integrity and medical privacy, it follows that government agencies would have it as well.

Here’s how I summarized Leichty’s reasoning:

In finding that the university had a wide berth to require vaccinations, Judge Leichty relied heavily on the Supreme Court’s 1905 decision in Jacobson v. Massachusetts, which upheld a smallpox-vaccine mandate (under which those who refused to comply were fined $5 — about $140 in today’s dollars), finding that states have a critical interest in protecting the public from potentially deadly infectious diseases. . . . In the ensuing decades, Jacobson has been relied on several times by higher courts, including the Supreme Court, to justify vaccine requirements and other public-health mandates.

Leichty conceded that a number of prominent jurists, including Supreme Court Justices Samuel Alito and Neil Gorsuch, have suggested that too much weight has been given to Jacobson and cautioned that it should not be considered the last word on state power to infringe on individual rights. As if to prove this very point, the Supreme Court late last year ruled, in Roman Catholic Diocese of Brooklyn v. Cuomo, that New York’s severe coronavirus restrictions on attendance at religious services violated the First Amendment’s free-exercise clause. The state had rationalized its restrictions as necessary to combat the spread of COVID-19.

Nevertheless, Judge Leichty distinguished Cuomo from Jacobson because, as the Court explained in the former, free exercise is unquestionably a fundamental right, and therefore New York had a higher burden (which it failed to meet) to justify restrictions and, importantly, to refrain from discriminating against religious institutions by imposing burdens more onerous than it imposes on commercial and other activities.

In deciding Cuomo, the Court did not overrule Jacobson. Leichty thus reasoned that the two precedents can coexist because they apply to different situations, implicating different rights. Given that Jacobson is still the law with respect to the narrow situation it addresses — namely, a vaccination requirement to halt the spread of an infectious disease (albeit one considerably more deadly than COVID-19) — Leichty, as a lower-court judge, was bound to follow it.

This is persuasive. One needn’t be a fan of mandates to grasp that lower-court judges are required to apply Supreme Court precedents, regardless of whether they agree with those precedents. Significantly, Leichty observed that the university’s mandate included exemptions for students who objected based on religious or medical reasons. If the vaccine mandates for state and federal employees include similar exemptions, they should be sustained by the courts. If they don’t, the government agencies would be inviting the more exacting scrutiny of the Supreme Court’s Cuomo ruling, and all bets are off.

Unless the Supreme Court reconsiders Jacobson, vaccine mandates are going to be upheld. I wouldn’t hold my breath on such a reconsideration. Our history with crises is that the Court gives the political branches, especially the executive, wide latitude to deal with them while the crisis is happening. When the pendulum swings in favor of individual rights, that tends to happen when the crisis is over — setting norms for future crises.

To be clear, I am not arguing against vaccine mandates. I have doubts about them so long as the government has given the vaccines only emergency authorization, but I am predisposed to accept the discretion of elected governments and private employers to require them (with appropriate exemptions). My point here is to assess what the courts are likely to do, irrespective of whether I agree or disagree.