As students return to school, hundreds of colleges and universities are requiring those returning to campus to get coronavirus vaccines. Recently, a federal appeals court declined to grant an injunction against Indiana University’s vaccine mandate after it was challenged in a lawsuit by students who say it violates their constitutional rights. On this week’s episode, we discuss the Indiana case as well as the constitutionality of vaccination mandates issued or being considered by different institutions including schools; discuss whether states or the federal government may also have the power to issue vaccine mandates; and explain how Supreme Court cases, including those from over a century ago, might impact this question. Wendy K. Mariner, professor at the Boston University Schools of Public Health, Law, and Medicine, and Josh Blackman, constitutional law professor at the South Texas College of Law Houston, join host Jeffrey Rosen.
FULL PODCAST
This episode was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Amy Lu, Olivia Gross, and Lana Ulrich.
PARTICIPANTS
Josh Blackman is a constitutional law professor at the South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the President of the Harlan Institute. He has blogged on vaccination mandates at the Volokh Conspiracy and is the author of the forthcoming article “The Irrepressible Myth of Jacobson v. Massachusetts.”
Wendy K. Mariner is Professor Emerita, Health Law, Ethics & Human Rights at Boston University School of Public Health and holds professorships in the School of Law and the School of Medicine. She is the co-author of numerous works on public health and constitutional rights including Jacobson v Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Jacobson v. Massachusetts (1905)
- Cruzan by Cruzan v. Director, Missouri Department of Health (1990)
- Washington v. Glucksberg (1997)
- Josh Blackman, "Jacobson v. Massachusetts did not uphold the state's power to mandate vaccinations."
- Wendy K. Mariner et al, "Jacobson v. Massachusetts: It’s Not Your Great-Great-Grandfather’s Public Health Law"
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
[00:00:00] Jeffrey Rosen: I'm Jeffrey Rosen, President and CEO of the National Constitution Center. And welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan, nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. It's back to school time and more than 500 institutions have started requiring coronavirus vaccines. Indiana University's vaccine mandate was recently upheld by a federal appeals court. And just a few days ago, a law professor sued George Mason University for requiring unvaccinated faculty and staff to wear masks and undergo frequent testing. On today's episode, we will explore the question, "Are vaccine mandates constitutional?" I'm joined by two of America's leading experts on this question and on the US Supreme Court case that is at the heart of the legal arguments, which is called Jacobson versus Massachusetts. Josh Blackman is a Constitutional Law Professor at the South Texas College of Law Houston, an Adjunct Scholar at the Cato Institute and President of the Harlan Institute.
He's blogged on vaccine mandates and the Volokh Conspiracy, and is the author of the forthcoming article, The Irrepressible Myth of Jacobson. Josh, it is wonderful to have you back on the show.
[00:01:21] Josh Blackman: Good to be back, Jeff.
[00:01:24] Jeffrey Rosen: And Wendy. K. Mariner is the Edward R. Utley Emeritus Professor of Health Law at Boston University School of Public Health and holds professorships in the school of law and the school of medicine. She is the co author of many works on public health and constitutional rights, including Jacobson versus Massachusetts: It's Not Your Great-Great-Grandfather's Public Health Law. Wendy, thank you so much for joining.
[00:01:48] Wendy K. Mariner: Delighted to be here.
[00:01:50] Jeffrey Rosen: Let us begin with the challenge to Indiana University's vaccination mandate. The case is called Klaassen v Trustees of Indiana University. The university required all faculty, students, and staff to have a COVID vaccine and be fully vaccinated or have an approved exemption before returning to campus. And the mandate was upheld by a district court and by the Seventh Circuit. Wendy, tell us about the core holding of the courts below namely that vaccination mandates are consistent with the Supreme court case Jacobson versus Massachusetts.
[00:02:32] Wendy K. Mariner: Well, the plaintiff's raised students raised a a kind of argument that Jacobson might've raised, which was that the mandate violated their 14th Amendment, "Rights of personal autonomy and bodily integrity and the right to reject medical treatment." Both the district court and as you pointed out, the Seventh Circuit rejected that claim on several grounds. The district court judge said, "Well, there was certainly no coercion here. The students were not being forced to get vaccinated. They could find a new school or get a job elsewhere for the staff." Seventh Circuit agreed saying that while the plaintiff's claim that Jacobson used a rational basis standard, of course, didn't that was before the Supreme Court developed the tiers of scrutiny. But the Seventh Circuit Judge Easterbrook interestingly pointed out that universities require students to read and write things they would prefer not to.
And that that's not a First Amendment violation and he noted, and I quote, "It's hard to see a greater problem with medical conditions that help all students remain safe while learning. I think they emphasize that there was no constitutional right to attend a particular institution and that vaccination is simply a condition of entry onto the campus. They have... Universities have eligibility standards, and this is one."
[00:03:46] Jeffrey Rosen: Thank you so much for that. Josh, as Wendy points out there were holdings by the district court, which said that the vaccine mandate is a neutral rule of general applicability. And by the Seventh Circuit where Judge Easterbrook wrote that the case is easier than Jacobson, Massachusetts for two reasons, Jacobson had no exception for adults. The Indiana University has exceptions for those who believe vaccinations are incompatible with their religious beliefs. And second, this is not a requirement for every adult member of the public, only those who attend the University of Indiana. People who don't want to be vaccinated can go elsewhere. What else can you tell us descriptively about what the district court and the appellate court held about Indiana's vaccination mandate?
[00:04:48] Josh Blackman: Well, let's take a step back a little bit further to go to 1905. Constitutional law was in a very different place in 1905. The entire modern edifice of due process and equal protection and tiers of scrutiny simply did not exist. Cambridge, Massachusetts enacted a policy that said, ""f you fail to vaccinated, you have to pay a $5 penalty." That was a criminal offense. There's no actual requirement to get vaccinated. If you pay the $5 penalty, you could go on spreading small pox in your community be at this $5 penalty. At the time, many states had upheld school vaccination requirements. And if you want to attend a public school, you had to be vaccinated. But at the time it was fairly novel for there to be a community wide requirement. There'll be decisions from North Carolina and Georgia upholding this. Jacobson became the test case, so to speak to the Supreme Court and in a decision that's put seven to two by Justice Harlan, the judge that both you and I admire deeply the court upheld the Cambridge policy.
And this was very much a decision in the early 20th Century. The court said, "Unless there is a clear and palpable violation of the constitution the, the, the courts will not get in the way." I think we should be very careful not to put too much weight onto Jacobson. This is a case that has not aged well, and it's inconsiste... It consisted a lot of precedent. The Supreme Court also recognizes in Calvary Chapel Roman Catholic Diocese, that this is not a case you want to put a lot of weight on. But for Indiana, you don't need to, right? Even before Jacobson courts across the country upheld vaccine requirements as a condition of school, right? "You're attending a school, it's a privilege. It's not a right." I think Wendy said that quite correctly and the school can have various requirements. So I don't think you need any sort of complicated issues.
It's also worth noting the Indiana policy had exemptions for disability and for religious exercise. I think there were nine plaintiffs, eight of the met religious exercise exemption. So there's only one person who sought to sue who didn't meet either exemption. And he unfortunately did not prevail. He asked to perhaps go somewhere else to get the shot. But I don't think Jacobson is necessary for the Indiana case as sort of just cited as background material, but it's, it's the state conditions for attending a school.
[00:07:00] Jeffrey Rosen: Yeah. Thank you so much for that. Well, Wendy, Josh has put squarely on the table, the Jacobson case, which both of you have written about and in your article, It's Not Your Great-Great-Grandfather's Public Health Law, you argue that invoking Jacobson, a law that authorizes mandatory vaccination during an epidemic of a lethal disease with refusal punishable by a monetary penalty, like the one in Jacobson would be found constitutional. A law that authorizes mandatory vaccination to prevent dangerous contagious diseases in the absent of an epidemic like a school immunization requirement upheld in 1922 by Justice Brandeis of all people also would probably be upheld under certain conditions. But you say that the legitimacy of compulsory vaccination programs depends on the scientific factors and constitutional limits. Tell us more about those important arguments that you make in your article about Jacobson.
[00:07:52] Wendy K. Mariner: Well, it's not simply the constitutional doctrine that governs, constitutional doctrine has to be applied in the context of the disease. And so what you find is if you... Are vaccine mandates constitutional, you ask law professors and they say, "It depends." Some are, and some may not be, it depends on really scientific factors. The, you know, the, the justification for requiring vaccination depends on several things. One is the prevalence of a contagious disease. A second is how easily it's transmitted, for example, through the air or by something that you touch as smallpox was the severity of disease symptoms that arise if someone is infected no cure, if there's no treatment available to provide it. And obviously the availability of an effective vaccine that can prevent transmission or serious disease.
And in that case, in this case, the coronavirus meets all these conditions. At the time, Jacobson was decided vaccine development was in its infancy, of course. And there were some concerns and the [laughs] FDA wasn't even established until 1938. So we ha... We had a long way from the situation scientifically and medically in 1905 from today. We have a lot more tools to protect people and prevent the transmission of illness.
[00:09:28] Jeffrey Rosen: Thank you so much for that. Josh, do you agree with Wendy's argument that the constitutionality of various vaccine requirements turns on contextual factors, including the effectiveness of the vaccine and, and health tests, and then tell us about your forthcoming article, The Irrepressible Myth of Jacobson, which is so buzzy that it may have been read at the Supreme Court where Justice Gorsuch invoked similar arguments in his recent piece about religious exemptions.
[00:09:59] Josh Blackman: Sure. I'll be frank, I don't think Jacobson stands on very strong legs. And with respect to Wendy, I think it's an old decision. Just to give you a sense Jeff, Jacobson was decided two months before Lochner was decided. This was decided by basically the same core as Lochner. Of course Lochner split five to four, this was seven to two, but constitutional law was in a very different place in 19, teens. It was just a very different world. In the modern sense, substantive due process, the due process clause protection rights is read differently. We ask, "Is there a fundamental right? Are there rights that are deeply rooted in tradition and history? Is there a violation of dignity?" To Justice Kennedy's favorite word?
There are lots of tests simply are not there in Jacobson. I think the outcome's probably the same, I think under modern decisions like Washington v. Glucksberg and Cruzan and others, a substantive due process claim would probably fail. But let me just give you one caveat. I think the penalty has to be low. If this was a regime that re... That maybe Wendy has thoughts that, that resulted in endless incarceration. I imagine you were put in jail until you submitted to a shot. I think that will be harder to justify. I mean, maybe Wendy has thoughts the fact that you only had a $5 penalty, I think a significant. There's another case I mentioned, I think it was in North Carolina Supreme Court decision from the late 1800s where person who basically kept in jail for 30 days until they got their shot would be extended indefinitely. That I think will be tougher to justify. In other words, you're putting a person who's not vaccinated in a closed environment where they can spread COVID to the prisons not that's a good idea either, right?
So I think there are actually some, some serious issues of how the mandate's enforced. I think you should also consider people who have natural immunity. This is the issue that is raised in the Virginia Case. People who might plausibly claim to have natural immunity may have better protections than what gets, you know, the Chinese vaccine, the Sinopharm, right?
So th-there are some preps plays in the joints over how those enforced, right? All laws must be rational if the policy lacks rationality and even courts might be skeptical of it. I hope it doesn't get to it. I hope no jurisdiction acts a vaccine mandate because it'll just be held up in court forever. But I don't think that Jacobson holds, I do think there's a bit of a myth surrounding the case that, that just will not seem to seem to fade.
[00:12:12] Jeffrey Rosen: Thank you so much for that. Wendy do you agree with Josh that although Jacobsen might allow for low level fines, it would not allow for coerced vaccinations. And then Josh introduces this Virginia Case where Professor Todd Zwicky has said that he already had COVID he has antibodies against it and therefore the George Mason Policy requiring unvaccinated faculty and staff members to wear masks and physically distance themselves is coercive and can't be considered anything other than an unlawful mandate. There's no compelling interest in overriding his personal autonomy rights and it's poorly calibrated to protect public health. What do you think of the contextual claims that Professors Zwicky raises in the Virginia Case?
[00:12:59] Wendy K. Mariner: Well, let me take your first question first and deal with the question of natural immunity second. You might be surprised that I agree with Josh that perhaps that it is that the Jacobson case is not what many people assume it to be, and that particularly people in public health often assume that it provides justification for almost any kind of law governing that has a goal ultimately of governing public health or improving public health. It is a really a case of first impression. It was really perhaps the first case before the United States Supreme Court that actually dealt with mandatory restrictions on an individual's personal liberty for public health purposes. There have been cases about police power. That was really where we really jurisdictional disputes between the federal and state governments and a few cases involving regulation of businesses, imposing health and safety regulations in places like mining.
But this was really an issue of individual regulating an individual. And I do think that it has been bandied about usually in a string site without much attention to the context. And it may be, I think what Cass Sunstein has called, "A narrow and shallow case," that it applied to a narrow set of circumstances, and it didn't have a, of doctrinal underpinnings that could be applied elsewhere. It's just too general, like almost any case of first impression. That said, I think it does raise questions that are timeless about the scope of state power and the scope of individual liberty. The hard question in these cases that we talk about in class a lot is, "So what would your enforcement mechanism be?"
It, Jacobson must have been a very easy case actually since no one was forced to get vaccinated. And there certainly is an enormous amount of reluctance, both in that, in the population and in the judiciary to forcibly impose medical conditions and, and, you know, shots and drugs on people with some exceptions in psychiatric institutions and often with... Well, I'll leave that for another day [laughs].
[00:15:21] Jeffrey Rosen: Josh, so we're talking about a bunch of different constitutional cases, and maybe you can desegregate them for our listeners and tell us what you think about them. You've said that the Jacobson case, which said that this Massachusetts could fine the individual for not being vaccinated no longer it would be at the center of the Supreme Court's considerations. And instead invoked cases like the Cruzan case, which said the people do have a right to refuse unwanted medical treatment and the Glucksberg case, which said that in deciding whether or not there is a right to die, the court will carefully look at history and tradition in evaluating whether there should be new substantive due process rights. Those are rights protected by the Liberty Clause that protects substantive liberties. So, so given all that, how do you think the current Supreme Court would, and should analyze the constitutional claims about various vaccination requirements?
[00:16:17] Josh Blackman: Well, again, I think we have to be very careful to distinguish different categories. If we're talking about the privilege of attending a school I think there's going to be more deference because people aren't required to attend a particular school. Tenured employees may have a different situation because they have a right to teach and they're being penalized for something that was not in their employment contract may actually be a greater claim for professor than for a student. Professors, you know, we're kind of stuck at our universities, but if there's actually a jurisdiction that mandates vaccines, I think those are very vulnerable that you have to get it. You know, they'll strap you to a gurney and put a needle in your arm. And there's also sort of a middle area. Look at New York City Mayor de Blasio has instituted a new policy. Unvaccinated people cannot go to restaurants, theaters, gyms, or any other public places.
This is severe. Historically we've said people have a right to travel, that is people don't need paper so to speak, to go from point A to point B and now they very well may. There's long been a policy of quarantining those who are sick and restricting people, for example, come on a boat or otherwise, but now a person can't walk across the street to a restaurant if he's fully masked and un-vaccinated there will probably be constitutional litigation over this policy as well. I, I am skeptical the Mayor of Boston actually compared the sort of policies to, to slave traffickers. I get to show your papers, move from point A to point B. There's a dark history here. So I, I think this policy might be vulnerable.
[00:17:41] Jeffrey Rosen: Wendy Josh raises the possibility of restrictions on travel at the end of July. President Biden reportedly considered requiring all civilian federal employees to be vaccinated or be forced to submit to regular testing, social distancing, and restrictions on most travel. And Josh also mentioned some restrictions in New York as, as you look at the range of vaccine requirements that states and the federal government are considering. Are there any that you think might come close to the constitutional line?
[00:18:16] Wendy K. Mariner: Well, I think we have to look at what the alternatives are. We are, we have been and continue to be in a very severe epidemic and pandemic around the world. The United States has had 630,000 deaths from COVID. That's dramatic, that's remarkable. What are our options? Our options are basically to try and prevent transmission anyway that's, that is feasible and fair. And our options are essentially vaccination, social distancing, masking, ma-mask wearing, or quarantine. You want to go back to the ancient use of quarantine, which has never been terribly successful except on an island which may be the only alternative to restrict the ability of a person to interact with the public and perhaps get infected and put others at risk. We really do have a problem with with options, if we can't use the best option that we have, which is vaccination.
[00:19:22] Jeffrey Rosen: Josh would a federal vaccine mandate of any kind be unconstitutional and which constitutional provisions might it violate?
[00:19:30] Josh Blackman: So far, we've been talking about state mandates and states have something called the police power, which is this sort of broad brooding omnipresence in the sky. So to speak that they can do a lot of things, sorry, I couldn't help it. I'm on the podcast with Jeffers and I have to make a Holmes reference. The federal government does not have a general police power. They have a what's called enumerated powers, only those powers given. If Congress wants to do something, they have to find a specific grant and article on the constitution. Perhaps they might look to the International Foreign Commerce Clause and the Necessary and Proper Clause. I think they'll be looking in vain. We know from the Obamacare case that mandates are unconventional. They're not many federal mandates to buy a product. There are no mandates I'm aware of to make regular people get a shot in their arm by virtue of simply existing.
Even though it would prevent the spread of disease from state A to state B, I am not confident this sort of mandate would survive constitutional review. I think it will be very vulnerable. But let's be frank, you, we don't have that statute, right? If President Biden wants to actually enact this policy, you would have to rely in general CDC authority to restrict pandemics. And I don't think these, the, the statute exists could stretch quite that far. This is actually the same law that supports the eviction moratorium, which a majority of the court thinks is on, is illegal. So I think a federal vaccine mandate is a non-starter. Biden said he had asked DOJ for an opinion on one, then he quickly walked that back. So I think we're, we're not going to see it.
[00:20:59] Jeffrey Rosen: Wendy, do you agree that a federal vaccine mandate would be a non-starter constitutionally and under existing statutory authority? And then tell us about the statutory authority that does currently exist. On July 26, the office of legal counsel issued an opinion saying that COVID vaccination emergency use authorization status under the Federal Food, Drug, and Cosmetic Act doesn't prevent public and private entities from imposing vaccine requirements. The legitimacy of that opinion is an issue in the Virginia Case. To what degree does the Emergency Use Authorization act provide authority for public and private entities to impose vaccination requirements?
[00:21:41] Wendy K. Mariner: Well, the, the Emergency Authorization does not impose any requirements as to use. It simply authorizes its sale and distribution. So I don't think that, that's terribly but that would not be a basis for requiring anyone to take the vaccine. It simply authorizes its, its, its distribution and it simply does so by authorizing production at the same time that the studies are being carried out. So it's a faster method, it's a faster route to getting the vaccine out once it is established as safe and effective, which it has been under that category. The constitutionality of a federal requirement for vaccination, I think would depend greatly on who it imposed on. Certainly the commerce power could authorize some kind of a condition with respect to businesses that could pose a risk of transmission. I think that would be possible.
Posing on individuals I think is on slightly shakier ground, although in the Comstock decision there, there, there was a citation that in cases of epidemics, perhaps we could impose that kind of obligation on, on an individual. So I think it's, I think it's an open question. I do think that we do have a tradition of lodging these kinds of requirements at the state level, that does make a mess of things however, as we see today with varying kinds of requirements and resistance or acceptance in different legislatures, in different governor- governor's offices in different states.
[00:23:13] Jeffrey Rosen: Josh, there are other constitutional complaints at issue in the Virginia Case involving George Mason University, including unconstitutional conditions. Tell us about those and what you think about those arguments.
[00:23:25] Josh Blackman: Sure. And I should note that I attended George Mason about a decade ago and I know Todd Zwicky very well, although I haven't actually talked to him about this case. There's a doctrine in constitutional law called unconstitutional conditions. And the idea is you should not have to surrender a constitutional right to get some sort of government benefit. You know, for example, if you want to live in public housing, could you waive your Fourth Amendment rights? That is they could drug test you any time, they could search apartment for contraband, right? If I live in public housing. And the general rule is that's not a good idea, that, that the government can't make you surrender your constitutional rights as a condition of some public benefit. And Zwicky argues that he has a constitutional right to avoid these sort of vaccines, given his immunity, his natural immunity, and in light of these facts, the government can't force him to give up those rights as a condition of his public employment.
It's a very unique argument and I don't think I've seen it in this exact context before because he's a public employee. He's tenured, which is a effectively a binding contract, which we all have as professors. And he's saying that as a condition of employment, he's being asked to surrender his constitutional rights. That professors have the rights of bridge all the time. You know, I can't go up from the classroom and start, you know, projecting child pornography on the board, right? I can't go for my classroom libeling people, right? Those are not protected activities. It's a tougher call if there's something that is protected by the constitution and then my employer says, "You cannot do that." in terms of my speaking and publishing I suppose a countervailing argument is that there might be students in, in Zwicky's class who are hesitant to enter the building if they know he's not vaccinated.
And also Zwicky said, he doesn't think he can teach effectively with a mask on which impedes the ability to perhaps for him spread. I, I don't know how this case will shake out. You know, it, it's, it's a fairly fast moving issue and who knows by the time this goes to summary judgment the Delta pandemic is subsided and, you know, we-we've sort of moved on. It's also possible Zwicky's immunity drops at some point in and the case gets mooted out, so to speak. So I don't know how this one shakes out. I think it's, it's, it's a heavy lift, but I do think he does raise fair points about the rationality of a policy that sort of a one size fits all. You know, one argument he raises the single Johnson&Johnson shot might be less effective than say two shots of Pfizer, right? If all vaccines are treated equally.
You may have a foreign student has a Chinese vaccine, which is not very effective at all. And that'd be... The Chinese vaccine might be less effective than natural immunity. So this sort of one size fits all policy, is not actually consistent with science as people like Wendy actually know, they know science, I don't know science, but there might be some difficulties, but is it for the courts or the elected branches to make those calls?
[00:26:09] Jeffrey Rosen: Wendy, what do you think about the argument about unconstitutional conditions in the Virginia Case, and then walk us through how you imagine constitutional litigation about the vaccines playing out over the next couple months, including issues involving religious exemptions. In Indiana there was an exemption for those who believe that vaccinations are incompatible with their religious beliefs. This Supreme court is sensitive to claims of religious exemptions. Do you imagine that any of those claims might be successful for vaccine requirements that don't have religious exemptions?
[00:26:42] Wendy K. Mariner: Well, first to the to the claim about natural immunity. That's, that's a very interesting question because it is, it is a question for science and not necessarily one that can be decided by the by the judiciary and the basis of knowledge of constitutional law. It's not at all clear to me that natural immunity is established permanently once one has had COVID. In fact, there's a lot of question about that and about fading immunity. So it's, it's a question. I think that it would be very hard to base a win on the claim that one need not be when need not be vaccinated because one has already had COVID.
Secondly, the idea that all vaccines are equal, may not last. This is a fast moving pandemic, and there are places in which the Chinese version of the vaccine is not accepted as adequate for entry into a university or a business. So it, again, depends on the reality on the ground. So how, how would, how would that matter? Well, you can, I mean, one of the, one of the problems that we have, I think in this country is that most of the statutory bases for emergency action have been written for short-term emergencies like hurricanes or floods or explosions and things like that. Often giving, giving a governor a 30 day period for you know, for exercising emergency authority.
We really haven't confronted how to deal with a longstanding pandemic for over 100 years. And we're in a much better scientific and constitutional position for that. So it means that we really have very, very little in the way of adequate precedent that fit what's going on now. We have a, a pandemic that has waxed and waned and is waxing again. And we may have a need for re-vaccination of people who have been vaccinated in order to keep to keep the population safe. So th-th-the questions that are confronting us are really quite, I think, new in many respects and relying on the idea that either one individual can refuse, because he thinks he has natural immunity or another individual can refuse because he just doesn't like, it tends to turn the whole purpose of society on its head. We need to be able to take action that indeed protects the whole population as long as we don't ultimately harm the individuals that we're trying to protect.
[00:29:24] Jeffrey Rosen: Josh, tell us your view about the future of religious exemptions and COVID. You wrote a post about Jacobson and Massachusetts based on your Harvard Journal of Law and Public Policy article, the essential Free Exercise Clause. You subsequently blogged that Justice Gorsuch's reading of Jacobson seemed to track your posts when, when, when he found religious exemptions in the Roman Catholic Diocese of Brooklyn case. So unpack for our listeners, what that debate was about, and then tell us whether you imagine any claims about religious exemptions being successful moving forward.
[00:30:04] Josh Blackman: Well, who's Jacobson? He was a Swedish minister who lived in Cambridge at the turn of the century. He had actually been vaccinated earlier in his youth and he had an adverse reaction to it. And also Jacobson's son had a vaccination, apparently who had an adverse reaction as well. There's basically Wendy correct me. I think he basically got a, a version of cowpox, which was a variant of smallpox, and that's how it was done. It was basically a different disease that could, could inflict harm to people, perhaps in the aggregate it was worthwhile. During the COVID-19 pandemic governors across the country, cited Jacobson in the various challenges to house of worship restrictions. And a lot of people simply assumed that this was a religious case, he was a minister after all. I've gone back, I read the trial record, I read the appellate record or the Supreme Court record, there was no reference whatsoever to the religion clauses. With good reason, they weren't incorporated yet.
The Free Exercise Clause had no bearing on the case. It was based entirely on the Due Process Clause of the 14th Amendment, as well as the Massachusetts State Constitution. He also had some Takings Clause issues that were rejected out of hand, but it was almost all based in the 14th Amendment. During the COVID pandemic, lots of judges had a, "Aha, we have this case Jacobson, which says that religious claims have to be subjugate to public health." Wrong, wrong, wrong, wrong, wrong, it had nothing to do with religion. And it was woefully consistent with modern Free Exercise Clause jurisprudence.
Chief Justice Roberts cited Jacobson in South Bay, a very prominent case upholding California's lockdown measures. And then a few months later, we get to Roman Catholic Diocese and Robert sort of tiptoes away sort of back to saying, "Well, I didn't really mean Jacobson had much to do with it." And then Gorsuch had an opinion that was very consistent with what I wrote. And he said, "This is not a case effecting Free Exercise Clause." So even if you have Cruzan and case like Glucksberg substantive due process, those cases might be weak. But if we exercise clause case is much harder to prevail. Judges cited Jacobson of a case involving the 2nd Amendment, right? You had states say to shut down all gun stores that prevent spread of COVID and it said, "Oh, Jacobson," but that's not a case about an enumerated right. Governors cited it for abortion. They said, "We need to stop all forms of certain types of abortions because we have to save surgical supplies," you know, the modern abortion jurisprudence postdates Jacobson by, you know, eight decades or so.
So these are, these are very contemporary issues of the large body of case law and judges sort of just reached to Jacobson as panacea saying, "Yes, we defer, we defer." I blame John Roberts in large parts for a lot of things, but I blame him for this. His, his, his citation of Jacobson was, was repeated 100s of times in the country. So look there, we have a lot of case law, the Supreme Court will have to address it at some point. I think a lot of judges just sort of, "What'd you say when you string cite?" They sort of cited Jacobson as string cite and just called it a day. And I think was, was not a good exercise in jurisprudence.
[00:33:01] Jeffrey Rosen: Wendy, can you imagine any challenges to vaccine requirements o-of any kind on, on religion grounds being successful moving forward and looking forward to the next couple of months are there any other vaccine challenges that you imagine being successful under the constitution?
[00:33:17] Wendy K. Mariner: Well, yes. I, I think that is entirely possible what the Supreme Court has done even in the shadow docket, but certainly in the Tannin case and the Cuomo case and in South Bay cases has been to elevate the, the idea of religious free exercise above all other, it seems constitutional protections. And I find that a little disturbing only because the Supreme Court refuses to decide what counts as a religious belief, which is understandable, but that leaves the court in the position of essentially acquiescing to an individual's perception of religion that can indeed undermine, you know, regulations that help the entire public.
I'm thinking of what the implication of these cases precedent are for all kinds of health and safety regulations from inspections to you know, to protections for workers, all of these kinds of things. These cases have, have essentially shifted the standard of review for religious exceptions to probably all kinds of regulation. And that I think is a far more far more concern than might be a simple exception to a vaccine mandate.
[00:34:38] Jeffrey Rosen: Thank you very much for that. Josh, as you look forward over the next couple of months, this is a fast moving situation, of course, but what, if any challenges to vaccine requirements, do you imagine being successful and, and which constitutional legal provisions do you think they'd be based on?
[00:34:53] Josh Blackman: I think the only institutions that will have constitutional challenges are public universities. And I think they're probably going to lose, I think the Eastbrook opinion's probably right. If private employers impose vaccine mandates, they'll have to deal with the Americans with Disabilities Act. And the, if it's a state with, the refer of Religious Restoration Act, maybe issues there, but I think those claims are going to probably fall away as well. The federal government that's imposing a the vaccine mandate may be trickier, maybe some organized labor cases, unions may oppose it, which has nothing to do with the constitution. But again, I think as a condition of employment, it's harder, right?
The, the policy may, may be a problem. So I, I don't think we'll see any sort of one size fits all challenge. I think the most likely case will get actually concerns the eviction moratorium, which will perhaps scale back the CDCs power. And once that power is scaled back, the idea of a national vaccine mandate's not gonna take off. We may see litigation over the New York City travel passport issue. That one is curious 'cause right to travel has never been clearly defined. I think that actually may have some legs.
[00:35:59] Jeffrey Rosen: Thank you very much for that. Well it's time for closing arguments in this illuminating discussion. If any of those cases, Josh mentioned materialize, we will podcast on those, but let us close by returning to the Indiana case. Wendy tell We The People listeners whether you believe that the lower courts were correct to hold it Indiana's requirement that all students, faculty and staff have a COVID vaccine and are fully vaccinated violates the constitution or not.
[00:36:29] Wendy K. Mariner: I, I think it does not. I, I'm not convinced that the, the decision was terribly well-reasoned, but I think the result was correct. And I think that the Seventh Circuit should uphold it perhaps with better writing.
[00:36:44] Jeffrey Rosen: Thank you for that. And Josh, same question to you as you have the last word in this, in this good conversation. Should courts uphold the Indiana vaccine mandate or not, and why?
[00:36:56] Josh Blackman: I think the ulti... The Indiana law passes must have had religious exemptions, had disability exemptions. And I think given those exemptions, it's hard to challenge under modern doctrine.
[00:37:08] Jeffrey Rosen: Thank you so much Wendy Mariner and Josh Blackman for a civil illuminating and collegial discussion about the hotly contested question of vaccine mandates and the constitution. Wendy, Josh, thank you so much for joining me.
[00:37:24] Josh Blackman: Thanks Jeff.
[00:37:25] Wendy K. Mariner: Thank you.
[00:37:31] Jeffrey Rosen: Today's show was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Amy Lu, Olivia Gross and Lana Ulrich. Please rate, review and subscribe to We the People on Apple Podcasts and recommend the show to friends, colleagues, or anyone anywhere who is eager for a weekly dose of constitutional education and debate. And always remember, dear We the People friends that the National Constitution Center is a private nonprofit. We rely on the passion, the generosity and the dedication to lifelong learning from people from across the country who are inspired by our nonpartisan mission of constitutional education and debate. You can support the mission by becoming a member at constitutioncenter.org/membership, or give a donation of any amount to support our work, including this podcast at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
