Amber Phillips of the Washington Post, writing for its political column The Fix, which bills itself as being wonkish and insidery, exhibits a complete lack of understanding of the Jacobson v. Massachusetts case of 1905 and proceeds to suggest, wrongly, that because of this precedent, Republican governors have no hope of resisting President Biden’s proposed federal vaccine mandate.
“What legal ground do Republican governors have to push back on vaccine mandates? Not much, based on a century of Supreme Court precedent” runs the headline of Phillips’s misleading piece. The main case she cites is Jacobson.
Jacobson was a state case, not a federal one. Phillips (or CNN’s Chris Cillizza, who used to write The Fix and retweeted Phillips’s mistaken analysis) might have guessed that from the v. Massachusetts part of the case’s name. It established that state governments can require vaccinations (in this case through municipalities). The reason it came before the Supreme Court was to decide whether Massachusetts vaccine mandates were in violation of the 14th Amendment. (Another case, from 1944, which is mentioned in passing by Phillips, considered a religion-based objection to vaccines and also came down on the pro-vaccine mandate side, but that was also a state matter: Prince v. Massachusetts.)
Several governors have announced opposition to Biden’s vaccine mandate. They obviously will not argue that states are forbidden to mandate vaccines. The issue is whether the federal government has the enumerated power to force businesses of more than 100 employees to mandate vaccination (or do weekly testing). Phillips suggests she does not understand the distinction between state and federal power when she writes that the Supreme Court “decided that jurisdictions do have the right to require people to get vaccinated.” Does she consider the entire country a federal “jurisdiction”?
States have many powers that the federal government does not have. Jacobson is irrelevant to deciding whether the federal government has the power to force businesses to mandate vaccination. It’s possible that deference to OSHA’s interpretation of the law, or an unwillingness to revisit the interstate commerce clause questions, will be found to justify Biden’s vaccine mandate, but those are not the issues raised by the Jacobson case. The Washington Post’s legal analysts ought to understand that.
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