The Covid-19 pandemic has prompted intense debate over public-health mandates, most recently sparked by President Joe Biden’s call for vaccine measures that could cover millions of Americans.
Often mentioned is a U.S. Supreme Court case triggered by another era’s vaccine mandate: 1905’s Jacobson v. Massachusetts.
The decision provided robust state and local power to vaccinate, but doesn’t control the federal power that challengers to Biden’s action might contest in court.
1. What’s Jacobson About?
Attempting to fight smallpox in the early 20th century, Cambridge, Mass., officials passed regulations, under state law, requiring vaccination.
Henning Jacobson refused to comply. He was tried, convicted, and ordered to pay a $5 fine.
2. State Power to Vaccinate
The Supreme Court rejected Jacobson’s challenge, citing the state’s “police power”—that is, “power which the State did not surrender when becoming a member of the Union under the Constitution.”
Under that power, the high court said in Jacobson, a state can “enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of public health.”
3. What’s Jacobson Mean for a Federal Mandate?
Perhaps not much at all, either for or against a federal Covid-19 vaccination mandate.
Georgetown Law professor Lawrence Gostin, who directs the O’Neill Institute for National and Global Health Law and has written about Jacobson, said the case isn’t relevant because it deals with state, not federal, power.
“While states have near plenary power to protect the public’s health, the federal government’s powers are limited,” Gostin said, adding that Biden “is acting fully lawfully pursuant to those powers.”
Gostin said the president “is using his executive power to order vaccinations for the federal workforce. He is using his spending power through Medicaid and Medicare to ensure vaccine mandates in health care settings. And he is using the Occupational Health and Safety Act to mandate vaccinations in all businesses of 100 or more employees. All of these are comfortably within the president’s power.”