New Precedents in Unprecedented Times: Exploring the Federal Vaccine Mandate

By Rachel Bina

Rachel Bina is a freshman in the Huntsman Program studying Business and International Studies with a focus on Russia. She is interested in global affairs, foreign languages, international law, as well as experimenting with international cuisines in her free time.

As we have heard time and time again since the COVID-19 pandemic began, we are living in unprecedented times. These unprecedented times have resulted in unprecedented measures like various state and federal mandates, which have, in turn, led to new legal challenges and precedents. In the United States, the Biden administration’s push for vaccinations has led them to mandate vaccinations for federal workers. In addition to this, they announced on November 4, that January 4, 2022, will be the deadline for companies with 100 or more employees to mandate coronavirus vaccinations for their employees [1].

Under this new mandate, companies must either require vaccinations for their employees or test them weekly for the coronavirus. This does not come without opposition, however. Numerous attorney generals from 11 states – Missouri, Arizona, Nebraska, Montana, Arkansas, Iowa, North and South Dakota, Alaska, New Hampshire, and Wyoming – have filed a lawsuit in an attempt to block the new vaccine mandate [2]. These states argue that compulsory vaccinations are regulated by the police powers of the states, and as a result, the federal government does not have the constitutional authority to enact this mandate. 

While this is the first federal mandate that affects private companies and citizens rather than just government employees, there have been numerous other mandates that make coronavirus vaccinations mandatory. These mandates have faced challenges, but they have largely been upheld. Maine, New York City, and Indiana University have all required vaccinations, and the Supreme court has rejected all challenges to these mandates. In New York City, teachers brought a class action lawsuit against the vaccination mandate for public school employees, claiming that it violates the Fourteenth Amendment rights to due process and equal protection. The case was denied by the 2nd Circuit Court of Appeals, and Supreme Court Justice Sonia Sotomayor denied the challenge as well [3]. A similar situation played out when Justice Amy Coney Barrett denied an attempt to block Indiana University’s vaccine mandate. The Supreme Court also rejected, in a 6–3 decision, an emergency appeal to block Maine’s vaccine mandate [4]. 

Historically, the Supreme Court has upheld the states’ powers to order vaccinations during epidemics, or when there is the threat of one. With the Biden administration’s federal mandate, whether or not the Court will allow for the federal government to do the same is yet to be seen. In the landmark 1905 Jacobson v. Massachusetts case, the Court “firmly established judicial deference to state health initiatives in times of epidemic as long as the measures were reasonable and proportional to the threat” [5]. 

If the Supreme Court allows the Biden administration’s federal vaccine mandate to stand, this will create a new precedent. The federal government will have more influence over public safety and welfare, which has traditionally fallen under the states’ “police power” under the Tenth Amendment. With the creation of new precedents, there is always the danger that the expansion of government powers will lead to the encroachment of freedoms during times of crisis and that these encroachments will continue into times of peace as well. 
Take for example, post 9/11, Congress passed the USA Patriot Act. This act sought to expand investigatory tools of law enforcement agencies in order to combat terrorism. However, there were numerous abuses that resulted from this act. This act was used to justify the seizure of financial records, communications, and other personal documents by the FBI without notifying the owners of this information, among other abuses [6].
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These situations are not perfectly analogous. These crises are clearly of different nature, and the nature of the laws in question are certainly different as well. However, the question remains – is the scope of the federal vaccine mandate narrow enough, and does it occur in a specific enough situation to ensure that this does not have negative ramifications down the line? However, these questions, while important, may go unanswered if this mandate is blocked by the courts. 

1. Rainey, Rebecca. “Federal Court Blocks Biden Administration’s Vaccination Mandate.” POLITICO. Accessed November 6, 2021. https://www.politico.com/news/2021/11/06/biden-vaccine-order-blocked-federal-court-519908.
2. IBID.
3. “Legal Precedents for Epidemic Response.” Accessed November 6, 2021. https://www.rpc.senate.gov/policy-papers/legal-precedents-for-epidemic-response.
4. Hirsch, Lauren. “U.S. Sets Jan. 4 Vaccination Deadline for Big Private Employers.” The New York Times, November 4, 2021, sec. Business. https://www.nytimes.com/2021/11/04/business/biden-vaccine-mandate-osha.html.
5. Hurley, Lawrence. “U.S. Supreme Court Rejects Religious Challenge to Maine Vaccine Mandate.” Reuters, November 1, 2021, sec. United States. https://www.reuters.com/world/us/us-supreme-court-rejects-religious-challenge-maine-vaccine-mandate-2021-10-29/.
6. Abramson, Larry. “The Patriot Act: Alleged Abuses of the Law.” NPR, July 20, 2005. https://www.npr.org/templates/story/story.php?storyId=4756403.

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.