The Courts WILL UPHOLD Cornpop's Mandate And Minority Resistance WILL BE Crushed

LATimes |  As Biden said in introducing his program Thursday, COVID vaccination “is not about freedom or personal choice. it’s about protecting yourself and those around you — the people you work with, the people you care about, the people you love.”

That said, there are still some questions and issues about the program that deserve answers. Here are some of the most important points.

The court

The Supreme Court has endorsed vaccination mandates for more than 105 years. The court first weighed in on mandates in 1905, with a 7-2 decision in Jacobson vs. Massachusetts, upholding a fine imposed by the city of Cambridge, Mass., on a resident who refused to get inoculated against smallpox.

“Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” Justice John Marshall Harlan wrote for the majority.

Harlan saw no problem with constraining “liberty” in the name of public welfare: “In every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

The Jacobson decision has been the linchpin of vaccine requirements coast to coast and at almost all levels of American society. As Lawrence Gostin of Georgetown University Law School observed late last year, “All states require childhood vaccines as a condition of school entry.” Adult mandates may be rare, but “at least 16 states require influenza or hepatitis B vaccinations for postsecondary education.”

It’s true that Jacobson has sometimes been exploited to support noxious public policies — Oliver Wendell Holmes cited it as precedent, for instance, in Buck vs. Bell, the 1927 opinion in which he upheld Virginia’s forced sterilization law with the notorious comment, “Three generations of imbeciles are enough.”

It’s also true that the court’s approach to questions of individual rights has evolved over the last century, generally in the direction of narrowing government’s ability to restrict them. But constitutional scholars tend to find that the pandemic is sufficiently dangerous to warrant the constraints Harlan endorsed.

“A law that authorizes mandatory vaccination during an epidemic of a lethal disease ... would undoubtedly be found constitutional,” Wendy Mariner of Boston University wrote in 2005. “However, the vaccine would have to be approved by the FDA as safe and effective, and the law would have to require exceptions for those who have contraindications to the vaccine.” Those conditions would appear to be met by the Biden program.

Federal powers

Biden is relying on the power of federal funding and federal workplace laws. The government’s power to set conditions on its funding are largely unquestioned.

In mentioning an earlier order he issued requiring vaccinations of all nursing home workers who treat Medicare and Medicaid patients, he stated, “I have that federal authority.” The administration’s position is that the same authority extends to firms holding federal contracts and employees of the federal government, as well as 300,000 workers in federally funded Head Start preschool programs.