Uh… oops. I guess I wasn’t paying close enough attention. I didn’t realize those cases involved state laws.
So, is the Tenth Amendment a strong argument that the Federal government can’t mandate vaccinations?
Unknown. As I mentioned above, both Jacobson and Buck rely heavily on the idea that the states retain broad power to adopt and enforce public health regulations. The discussion of the relationship between state and federal power in Jacobson would have been, if cited in 2018, rejected by many (including most SDMB posters).
The constitutional understanding of individual rights as well as the scope of federal power has developed significantly in the last hundred years. I think that most people who are rotely citing Jacobson as support for a vaccine mandate haven’t read it and don’t understand it. Buck, which relies on Jacobson and holds that a state has the power to compel medical procedures in the interest of public health (as opposed to simply impose a small fine on the non-compliant), has routinely been named one of the worst Supreme Court decisions ever (although, I think it’s still good law).
I think that a state vaccine mandate would be an interesting constitutional question – setting historic state authority over public health matters, including pandemics, against questions of individual rights (and racial disparities). A lot of these issues came up with the Ebola quarantine cases five or so years ago (the state generally prevailed).
But, I think that the argument that the federal government can’t do it is pretty strong – you’d really have to argue that the commerce clause reaches an individual vaccine mandate and I think that’s a difficult case under Lopez, Morrison, and Sebelius. That said, I think that the federal government would likely be free to functionally require vaccines by doing so in the areas that its pretty free to regulate – the military, federal employees, OSHA, FAA, etc. Or, I could be wrong.
Although in the case of Buck v Bell, the procedure was forceible sterlization in the name of eugenics, rather than vaccination. IANAL but the case and the ideas around it are so repugnant that I’d think lawyers would find it hard to use to bolster a case for compulsory vaccination.
The form a mandatory vaccination law takes will likely play a big part in the determination of its constitutionality. It is exceedingly rare (I could not find a current example) of a municipality or state requiring every member of the public to become vaccinated. More often, the mandatory vaccination requirements are much more specifically tailored.
For example, the federal government has made rules for mandatory vaccinations for federal workers and contractors. The Dep’t of Veteran affairs also requires its front line workers in its facilities to be vaccinated. And the military seems to be moving in the same direction.
On the State level, many colleges have mandatory vaccination requirements for students and staff. Some state and local governments require them for their workers too. Recently, New York even moved to require proof of vacinnation for indoor dining.
Finally, many private businesses, especially hospitals, are mandating vaccinations to work for them.
Most of these measures include opt outs and exemptions (such as testing negative on a weekly basis instead of a vaccine), which will lessen the “mandatori-ness”, which further complicate the issue.
Many of these regulations will wind their way through court systems in the next few years. But, so far, we have a couple of cases the offer some more specific guidance than Jacobsen.
One of the biggest ones so far is Klassen v. Indiana University. The federal judge hearing the case ruled that the mandatory requirement is constitutional. The case was appealed to the 7th Circuit, where it was upheld, and, just last week, the Supreme Court declined to hear the appeal.
There is a lot of stuff to unpack in the case (101 pages of stuff), but the gist of the ruling was: “Recognizing the significant liberty interest the students retain to refuse unwanted medical treatment, the Fourteenth Amendment permits Indiana University to pursue a reasonable and due process of vaccination in the legitimate interest of public health for its students, faculty, and staff. Today, on this preliminary record, the university has done so for its campus communities. That leaves the students with multiple choices, not just forced vaccination.”
The mandate does have exceptions, but does put additional requirements on those who do refuse to be vaccinated (as an aside, I can’t be the only one who thinks one of the plaintiff’s claims that he can’t wear a goddamn mask because of religious beliefs was utter horse hockey).
I’ll note that the court does discuss Jacobsen and Buck v. Bell, as well as a New York Covid case, and notes that the power of the State to protect the health of its citizens need only pass the rational basis test for Constitutionality.
I’m sure we will see more and more of these cases making their way through the Court system. Of interest will be NY’s current mandate for teachers and workers in its school system, because it may not have an opt out/other alternative, which could effect the rational basis test. But I really doubt we will see laws allowing for criminal charges for not getting the vaccine, of which the OP was most concerned.
This isn’t exactly what the government (New York) did to Typhoid Mary, but IIRC they did “quarantine” her, I.e. confine her (Since there was AFAIK no vaccine).
The only restraint I see is that the need and degree of action need to be reasonable in face of the likely danger.