Constitution Day: Vaccine Mandates and the Constitution

Prof. Michael Eric Herz

According to Public Law 108-447, div. J, § 111(b), 18 Stat. 2809, 3344-45 (Dec. 8, 2004), “Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution.”

Yeshiva University has faithfully carried out this obligation every year, though this year, the commemoration was held a bit later, on Oct. 12, because of the holidays during the month of September. Prof. Michael Eric Herz, Arthur Kaplan Professor of Law at the Benjamin N. Cardozo School of Law, gave a lively and in-depth presentation on the topic of vaccine mandates and the Constitution of the United States.

Prof. Herz brings an impressive résumé to bear on the question. He came to Cardozo Law School as staff attorney at the Environmental Defense Fund after previously serving as clerk for both Associate Justice Byron R. White of the U.S. Supreme Court and for Chief Judge Levin H. Campbell of the U.S. Court of Appeals for the First Circuit. He was Cardozo’s Vice Dean from 2006 to 2009 and served as Senior Associate Dean from 1996 to 2000.  For many years, he directed Cardozo’s Floersheimer Center for Constitutional Democracy, and he has also been co-director of the Israeli Supreme Court Project.

He began with a little history about why Constitution Day is on Sept. 17, noting that that day was the last day of the Constitutional Convention in Independence Hall in Philadelphia, where those in attendance signed off on the final draft of the document before sending it to the states for ratification. (The draft became what we know as the Constitution in 1788, when New Hampshire became the ninth state to ratify it.)

Regarding the issue of vaccine mandates and the Constitution, Prof. Herz described the current situation as one, in his words, that is “highly fraught” and generates “a lot of fury”: “Some people feel that any requirement that folks get a COVID vaccine is appalling government overreach and flatly unconstitutional and represents everything wrong with American government today.”

But as to both the legality and constitutionality of the federal government imposing a vaccine mandate, Prof. Herz is of the opinion that “it does fall under the government’s jurisdiction because it is within the scope of the commerce power as it is generally understood [in Article 1, Section 8, Clause 3]. There are really significant harms to interstate commerce from the pandemic. A measure like the vaccine mandate that’s instituted to bring the pandemic under control will protect and facilitate interstate commerce.”

In addition, while some may argue that public health policy should be done by the states and not the federal government, the reality is that that there is a great deal of federal influence, if not outright control, over public health, such as the guidance and guidelines issued by the Centers for Disease Control and Prevention (CDC).

As for state governments issuing vaccine mandates, Prof. Herz noted that “the states clearly have the police power to institute mandates, and there is no serious argument about their ability to do that.” They can also refuse to institute mandates or do something between. As an example of this diversity, “about half the states have a mandate of some sort,” he observed, “but no state has an across-the-board vaccine mandate that applies to all businesses or individuals.” Twenty states prohibit governmental vaccine mandates, and three (Montana, North Dakota, Texas) prohibit private employers to require employees to be vaccinated.

But while the legal foundations may exist for vaccine mandates along with the support of the Constitution, the arguments about this topic are not solely arguments about legalities. They are also about principles many Americans believe are bedrock and inalienable, such as individual liberty (including bodily autonomy and the right to refuse medical treatment) and religious freedom.

However, according to Prof. Herz, there are no constitutional arguments in favor of the idea that these principles always supersede the power of governments to govern.

In terms of the first principle, a Supreme Court ruling in 1905, Jacobson v. Massachusetts, still governs the debate about public health and individual liberty, a ruling that came down during an outbreak of smallpox in Boston. The Court said that a vaccine mandate in such a dire public health situation was, according to Prof. Herz, a reasonable intrusion.

Of course, implementing such a policy requires a balancing act, and such actions are inevitably going to be “mushy and unclear,” but that didn’t invalidate the obligation of the government to protect the health of all the citizens under its jurisdiction.

As for the second principle, while “courts never examine the legitimacy of religious views—the Supreme Court has said that if it’s a sincerely held religious belief, we have to respect it,” the fact that a law has a restrictive effect on a religious practice doesn’t mean that it violates religion’s First Amendment protection. In the case of vaccine mandates, if the mandates are not directed against any one religion or religious belief but apply equally to all people, even if they burden a certain group in a certain way—“that is, if the mandates are adopted for completely sound, neutral, public health reasons”—then they will pass legal muster.

As Prof. Herz pointed, there is a whole different realm of debate concerning vaccine mandates and private organizations (like companies) when it comes to things like the CDC’s eviction moratorium and OSHA’s pending emergency rule that would require private employers to have their employees vaccinated.

But when it comes to vaccine mandates and the public sphere, there is a solid legal, historical and constitutional basis for declaring them, though as Prof. Herz noted throughout his presentation, not without vigorous confrontations by many about tyranny, a federal power grab, and an insult to individual liberty and free enterprise. “The stakes,” he noted, “seem very high to these people.”