Legal experts are weighing in on whether President Joe Biden's vaccine mandate will hold up in court.
Some say the federal government does have the right to mandate vaccines, while others argue the president doesn't have the authority to issue such a requirement.
Former Harvard Law School professor Alan Dershowitz, who recently wrote the book “The Case for Vaccine Mandates," argues vaccinated people have the right "not to be subject to contagion from unvaccinated people.” He noted that some vaccinated people are not able to access hospitals, due to a surge in COVID-19 cases, mostly in unvaccinated people. That includes an Alabama man who recently died of a "cardiac event" after trying to enter dozens of hospitals across three states.
Notably, at least one Texas hospital may suffer as a result of vaccine mandates, rather than the lack of them. Jerry Jasper, CEO at Brownfield Regional Medical Center, said some of his staff have not received the shot, and losing workers probably would force him to shut down, reports KCBD 11.
But Dershowitz says vaccinated people have a right to be protected from COVID-19 exposure.
“You may have a constitutional right not to be vaccinated, but I have a constitutional right not to have you expose me to an illness, even though I’m vaccinated," Dershowitz said. "And maybe I won’t die and maybe I won’t be hospitalized, but I still have the right not to catch COVID from you if you aren’t vaccinated.”
Compared with vaccinated people, unvaccinated people are five times more likely to get infected, 10 times more likely to be hospitalized, and 11 times more likely to die of COVID-19, according to recent research from the Centers for Disease Control and Prevention.
Dershowitz says there are three main issues at play when considering the legality of vaccine mandates.
First, does the federal government have the right to mandate vaccines, as opposed to a state government? Dershowitz says the answer is “clearly yes,” noting that the Constitution’s Supremacy Clause allows the federal government to prevail over a state government for interstate issues.
“COVID does not recognize boundaries,” Dershowitz said.
Second, he says a vaccine mandate could pass constitutional muster “if it’s done properly.” He noted a 1905 case, Jacobson v. Massachusetts, where the Supreme Court upheld a requirement that people be vaccinated against smallpox or face a $5 fine (approximately $155 today, when adjusting for inflation).
But there’s more to the Jacobson case than that, argues author and lawyer Kent Heckenlively, who responds to Dershowitz's argument in his book, "The Case Against Vaccine Mandates." First, he says the case doesn't give the federal government the power to mandate vaccination. He also notes that the plaintiff in the suit was not at risk of losing his job for refusing the vaccine.
“Even in 1905 they did not attempt to do what Biden is doing right now,” Heckenlively said. “If you are citing Jacobson v. Massachusetts for this proposition that the government has the power to do something like that — the case said absolutely nothing like that.”
Heckenlively also notes, smallpox is more dangerous than COVID-19. Before it was eradicated, smallpox carried a 30% death rate. COVID-19 carries a 1.6% case-fatality rate in the U.S, according to Johns Hopkins University. In addition, smallpox killed a half billion people in the last 100 years of its existence, according to a 2009 book published by D.A. Henderson: “Smallpox: The Death of a Disease: The Inside Story of Eradicating a Worldwide Killer.” That averages out to about 5 million deaths a year, compared with 4.6 million total COVID-19 deaths since the pandemic began.
Dershowitz concedes there’s a third issue where court challenges may succeed — namely, on the question of whether President Biden can issue a broad vaccine mandate on his own authority.
“That will be where the challenge lies, and nobody knows for sure what the answer to that question will be,” Dershowitz said.
Dershowitz said a mandate issued via the legislative branch, rather than the executive branch, would stand on much sturdier constitutional ground.
“It still will be much better if Congress were to pass that mandate after full debate and discussion, and then let the president sign the law,” he said. “I would urge the president to get Congress to pass this. That would eliminate the most serious constitutional challenge.”
Another argument against vaccine mandates is based on the Constitution’s Equal Protection clause — that the government can’t require some people to be vaccinated and not others. People who work at businesses with fewer than 100 employees, for example, would be exempt from the mandate, while people at businesses with 100 or more employees would be required to get the shot.
Dershowitz said even if the mandate applied to everyone, it wouldn’t address opponents' key objection that no one should be required to be vaccinated.
Liberty Justice Center President and Co-founder Patrick Hughes counters Biden's vaccine mandate from a different angle, saying the Occupational Safety and Health Administration's Emergency Temporary Standards code does not apply to vaccine mandates. OSHA is allowed to enact a rule if “workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful or to new hazards.”
Hughes compares Biden's vaccine mandate announcement — specifically, that OSHA will develop a new rule to mandate vaccines — with the extension of the CDC’s pandemic eviction moratorium, which was struck down by the Supreme Court last month.
“The Biden administration, as it relates to these businesses with over 100 employees, is trying desperately to fit this square peg into that round hole,” Hughes said. “That is not what the statute was intended to protect or intended to cover. It's not intended to cover a virus. It’s not intended to allow for vaccine mandates.”
Hughes says his organization is prepared to represent businesses that might choose to sue over the vaccine mandate. He said the last time the emergency standards provision was invoked was in 1983, to protect workers from asbestos.
“The whole purpose of these sort of emergency standards is to make sure that employees — people who work in a business — are safe from sort of a toxic environment,” Hughes said.