Does v. Mills & Maine’s Vaccine Mandate – In Times of War, The Laws Fall Silent.
Posted by Edmund R. Folsom
October 31, 2021
I will spill few words here on the U.S. Supreme Court’s recent denial of a petition for injunctive relief from Governor Mills’ vaccine mandate for healthcare workers. The plaintiffs challenged the mandate’s constitutionality because it lacks a religious exemption. Keep in mind that, in the exercise of the Court’s constitutionally required deference to the political branches, regarding what is a threat to the public wellbeing and what measures may constitutionally be deployed to combat such a treat, the Court has a less than stellar record.
As Justice Gorsuch said in his dissent from the court’s denial of injunctive relief in Does v. Mills, “If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.”
The pro-mandate crowd are fond of telling us that the constitutionality of all COVID-19 vaccine mandates was settled by the 1905 U.S. Supreme Court case, Jacobson v. Massachusetts, 197 U.S. 11. In Jacobson, the Court upheld a mandate that pertained to the smallpox vaccine. The Court’s logic ran something like this: (1) the states retain a general police power under our constitutional scheme; (2) the police power extends to reasonable regulations, established by the legislature, that protect public health and safety; (3) the state may also vest local entities with the authority to safeguard public health and safety, and federal authorities may not interfere with such measures unless the measures contravene a constitutional provision; (4) the state has discretion over the means by which it protects public health and safety; (5) Jacobson was prosecuted and fined for violating an ordinance of the City of Cambridge, under authority of a state statute that expressly addressed the mandatory vaccination measures (which carried a $5.00 fine for a violation); and (6) “[I]t cannot be adjudged that the present regulation of the Board of Health was not necessary in order to protect the public health and secure the public safety,” nor could the Court identify a constitutional violation.
Maine’s vaccine mandate might contravene the constitutional rights of the Does v. Mills plaintiffs because it contains no religious exemption. But no injunction will block enforcement of the mandate while the issue is litigated. The plaintiffs will bow to Caesar and violate their religious beliefs, or they will lose their jobs.
Now you see from my synopsis of Jacobson, above, that the Supreme Court sees its role in reviewing state public health measures as limited by the constitution. The Court has no authority to merely substitute its judgement for that of state authorities in matters that are within the state’s police power. I hear a lot of people saying that various COVID-19 vaccine mandates are “unconstitutional.” Maybe they are, and maybe they aren’t. But even if they are, do not delude yourselves into thinking the Supreme Court will uphold peoples’ constitutional rights against vaccine mandates within any meaningful time frame.
You see from Jacobson that the police power of the various states gives them authority to deal with matters of both health and safety. Twenty-two years after Jacobson, the Supreme Court decided Buck v. Bell, 274 U.S. 200 (1927), the Court’s infamous “Three generations of imbeciles are enough” case. In Buck, the Supreme Court determined that Virginia’s mandatory sterilization law for “imbeciles” was an appropriate exercise of Virginia’s police power. The Court cited its Jacobson decision and drew a parallel between forced sterilization and mandatory vaccination policies. The Buck Court found that “imbeciles” present a threat to the public wellbeing, that their forced sterilization advances the greater good, that the means used to accomplish sterilization were reasonable, and that Virginia’s forced sterilization scheme did not contravene the constitutional rights of the sterilized.
Bask in the Court’s eloquent summing-up of its conclusion:
“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11. Three generations of imbeciles are enough.”
Did Virginia’s forced sterilization law not, in fact, contravene the rights of the sterilized?
The Court’s deference to the political branches in matters of public health and safety was later put on display in Korematsu v. U.S., 323 U.S. 214 (1944). Federalism was not a limiting principle in Korematsu as it was in Jacobson, but the federal judicial branch’s authority over the federal executive branch was. In Korematsu, President Franklin Delano Roosevelt issued an executive order for the rounding-up and forced relocation of people of Japanese ancestry who lived near military areas and surrounding communities. Mr. Korematsu refused to go along with his relocation to an internment camp. He was prosecuted for violating FDR’s military order. The Supreme Court found that nothing in the scheme violated Korematsu’s constitutional rights, in light of “[p]ressing public necessity.”
See how it works? A public threat is identified, a political entity imposes measures to address the threat, the Supreme court affords the political entity great deference, and the constitutional rights of any individual who is deemed to embody the threat don’t mean jack.
This time, the identified threat to the public is COVID-19, and in the governmental action in question is Governor Mills’ COVID-19 mandate for health care workers – people who are about to lose their jobs, people who would claim a religious exemption if there was one. How much confidence do you have that the U.S. Supreme Court will get it right this time?
Here, I offer an observation of the late Supreme Court Justice Antonin Scalia. Back in 2014, Scalia was addressing a group of law students when he warned that internment camps will come to America again, a la Korematsu. He told the students, “Well of course Korematsu was wrong. And I think we have repudiated it in a later case. But you are kidding yourself if you think the same thing will not happen again.” And then he quoted a Latin expression that translates: “In times of war, the laws fall silent.”
This time the “war” is the COVID-19 pandemic, and the laws that purportedly protect the individual against Caesar’s overreach have largely fallen silent.
Disclaimer: Need I say it? The above is not legal advice and is not to be taken as legal advice. It is for informational purposes only.