Federal Vaccination Mandate Paves Pathway to High Court

By Dave Emanuel

As COVID-19 infections continue, some officials and bureaucrats have proposed a federal vaccine mandate as the only means of stopping the spread of the virus. Can they succeed?

While the data show that vaccination does not prevent infection, it does significantly reduce transmission rates. Vaccination will keep more people out of the hospital and the morgue: It has been statistically demonstrated to save lives and reduce the misery of COVID infection.

Vaccinations were not created to stop the transmission of a disease. Nor can they. Their purpose is to prevent a person from suffering from a disease, and they do so by providing the immune system with the firepower necessary to stop the effects of infection. In other words, the immune system doesn’t fight an infection until it exists. COVID-19 transmission from vaccinated people is therefore no surprise.

Also of no surprise is that the unvaccinated make up the overwhelming majority of people hospitalized with COVID-19. The Centers for Disease Control and Prevention released a study of data from 13 jurisdictions covering April 4 to July 17, 2021, showing that over 90% of COVID-19 cases, hospitalizations and deaths were among the unvaccinated.

Cases Hospitalizations Deaths
Not fully vaccinated Fully vaccinated Not fully vaccinated Fully vaccinated Not fully vaccinated Fully vaccinated
Totals 569,142
(92%)
46,312
(8%)
34,972
(92%)
2,976
(8%)
6,132
(91%)
616
(9%)

Source: Centers for Disease Control and Prevention

A vaccination rate of 80-95% of the population is needed to achieve “herd immunity:”  when so many people are vaccinated that the disease du jour has no alternative but to wither and die. Herd immunity is the condition that defeated smallpox in the early 1900s.

Smallpox also led to the 1905 U.S. Supreme Court’s 7-2 ruling in 1902 that confirmed a government’s power to mandate vaccination. Justice John Marshall Harlan wrote in the majority opinion in Jacobson v. Massachusetts:

There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

Jacobson is the case most frequently cited to validate proposals for a federal mandate for COVID vaccinations. The Supreme Court unanimously reaffirmed the Jacobson decision in the 1922 case of Zucht v. King. “Jacobson v. Massachusetts had settled that it is within the police power of a state to provide for compulsory vaccination,” wrote Justice Louis Brandeis. (In a separate, later opinion, Brandeis also wrote that “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.”)

While these rulings upheld the legality of vaccine mandates, there is a caveat: In both Jacobson and Zucht, the justices’ opinions specifically noted the right of state or local governments – not the federal executive branch and a group of bureaucrats – to enforce a vaccination mandate.

That may seem a moot point. Nevertheless, there is a significant difference between a state or municipal government passing a law, and a president ordering enforcement of an executive decision by a group of unelected bureaucrats.

Such a precedent is a giant step on the road to despotism. And it is arguably unconstitutional. If the president – as opposed to a legislative body – can implement a nationwide vaccination mandate, what’s next?  A presidential mandate that anyone infected with a disease must be quarantined in a federal facility? Incarceration for the unvaccinated unless they agree to “take the shot”?

The prudence of vaccination has been statistically proven. The question is whether an executive mandate is a constitutionally legal method of achieving herd immunity. The controversial proposal has once again stirred up “anti-vaxxers.” An executive order will prove to be effective only at paving a pathway to the Supreme Court.

The outcome is not promising for a president. The high court has never sanctioned a federal executive vaccine mandate, and it has supported court action when regulations are deemed arbitrary and oppressive. As Justice Harlan concluded in Jacobson v. Massachusetts:

The police power of a State, whether exercised by the legislature, or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.


This commentary by Dave Emanuel, Mayor pro tem of the Snellville City Council, was written for the Georgia Public Policy Foundation. Established in 1991, the Foundation is a trusted, independent resource for voters and elected officials. The Foundation provides actionable solutions to real-life problems by bringing people together. Nothing written here is to be construed as necessarily reflecting the views of the Georgia Public Policy Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.

© Georgia Public Policy Foundation (October 8, 2021). Permission to reprint in whole or in part is hereby granted, provided the author and his affiliations are cited.