What exactly is a vaccine mandate?

Jacobson v. Massachusetts, Buck v. Bell, and NFIB v. Sebelius


Before the current pandemic, I had never read the Massachusetts Supreme Judicial Court's opinion in Commonwealth v. Jacobson. That case observed, "[i]f a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of the penalty of $5." I was struck by that sentence.

I had long assumed that Jacobson upheld the state's power to forcibly vaccinate someone. For example, states routinely force people into quarantines. Why couldn't states take the antecedent step of inoculating people, even against their wishes, to avoid the need to quarantine? In Buck v. Bell, Justice Holmes analogized the forcible sterilization of Carrie Buck to the forcible vaccination of Henning Jacobson. But my assumption was wrong. And I suspect I am not alone. Most lawyers never actually read Jacobson, let alone the lower court opinion. The case does not appear in any casebook I have reviewed. And, I doubt most judges who have cited Jacobson in the past 6 months have bothered to read both opinions. Rather, I suspect most lawyers and judges are familiar with Buck v. Bell, and rely on Holmes's characterization.

This assumption gives rise to an important question: What exactly is a vaccine mandate?In the concept of a vaccination, there are two approaches to understand a "mandate." The first approach reflects the law at issue in Jacobson. Those who refuse to be vaccinated must pay a nominal fine. Five dollars is roughly $150 in present-day value. I think it was significant there was no jail time associated with this offense. Throwing people in jail for refusing to be vaccinated would have presented a harder case. The second approach reflects a different type of law: people who refuse to be vaccinated will be forcibly vaccinated by the state. That is, the state would forcibly restrain someone and inject them with the vaccine. That law, I suspect, would have been declared unconstitutional by the Lochner Court. (Lochner and Jacobson were decided two months apart.)

In Buck v. Bell, Justice Holmes had to rely on the second conception of the mandate to uphold Virginia's sterilization act. Carrie Buck was not given the option to pay a nominal fine in exchange for keeping her reproductive functions. Nor was Buck given the option to serve a jail sentence for refusing to submit to the surgery. She had one option: submit to the procedure. Holmes needed some precedent to support this outcome. And he looked to Jacobson. Holmes concluded that "the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes." But Jacobson did not actually sustain "compulsory vaccination."

I'm not sure that any state has ever relied on the second approach to achieve "compulsory vaccination." Unvaccinated students may be denied access to public education. But the state will not jab unvaccinated students in the arm with a syringe at the schoolhouse gates. Indeed, laws that are routinely called mandates are not actually mandates. If a person on a bicycle refuses to wear a helmet, the government will issue a citation, not force the person to wear a helmet. If a person refuses to wear a seat belt, the police will ticket, not click it. A person who skips jury duty may be served with a bench warrant, but he will not be dragged into the jury box. Our society abjures actual requirements for people to take specific actions. The state has the power to compel people to take certain actions through two primary sticks: fines and/or incarceration. And the Due Process Clause of the Fourteenth Amendment does not prevent the government from imposing such punishments–even though people are being deprived of their "property" (money) or "liberty" (freedom to leave prison).

Now back to COVID. Some states may wish to enact laws that resemble the law at issue in Jacobson: people who refuse to take a COVID-19 vaccine will have to pay a nominal fine. Let's put aside state RFRAs or the Free Exercise Clause for a moment. Under Jacobson, this sort of mandate would not run afoul of the Due Process Clause of the Fourteenth Amendment.

What if other states wish to get more aggressive? Perhaps a state wants to enact a true compulsory vaccination regime. Maybe the state wishes to go door-to-door, and inject people with the vaccine. And those people who forcibly resist the vaccine will be restrained, strapped to a gurney, and injection. (I imagine China would enforce such a regime). Would Jacobson support such a regime of compulsory vaccination? No. Here, the government would have to rely on Buck v. Bell. That is the leading precedent that allows the government to perform medical procedures to advance the public good. Good luck citing Buck v. Bell in court.

I think it is a tougher question whether the state can hold a person in prison indefinitely until they agree to receive a vaccine. Indeed, Buck v. Bell held that sterilization was a lesser intrusion on freedom than permanent incarceration. (Every year I ask my students whether which punishment was worse–they divide in unexpected ways.) Granted, the COVID-19 pandemic will (hopefully) draw to a close sooner rather than later. So I do not think indefinite detention would be an option. But imagine there is another virus for which herd immunity requires 100% inoculation rate, annually. Could the state simply imprison those who refuse to be vaccinated indefinitely?

At this point, I'm some of you are screaming what about OBAMACARE!? So far, I have only discussed state mandates. A very different analysis pertains to a federal mandate. Section 5000A(a) of the Affordable Care Act imposed a requirement to maintain insurance. And Section 5000B(b) imposed a penalty on those who fail to maintain insurance. The Obama Administration argued that there was not a mandate. Rather, these two provisions worked together to offer people a choice: purchase insurance of pay a tax-penalty. Indeed, the law that the Obama Administration described resembled the statute in Jacobson. (I made this point yesterday). If the Obama Administration's reading of Section 5000A as a whole is correct, then that provision was constitutional in 2010.

Now I think NFIB rejected that reading. I won't rehash that argument here. But let's assume I am right for a moment. If I'm right that NFIB imposed an actual requirement to purchase insurance, then we have moved beyond the ambit of Jacobson. Certainly, we are not anywhere near close to a Buck v. Bell style mandate. But if Section 5000A "commands individuals to purchase insurance," people no longer have a choice.

Recall that there were Due Process Clause challenges to the ACA's mandate. And those challenges were uniformly rejected. Why? Because a purchase mandate to buy insurance simply required people to part with some amount of money. That deprivation of property, by itself, was not enough to trigger a violation of the Fourteenth Amendment. Indeed, a mandate to purchase broccoli would likewise be valid under the Fourteenth Amendment. A mandate to eat broccoli would be very different, and would likely run afoul of the Due Process Clause.

But the question in NFIB did not concern the Due Process Clause. The question presented considered whether Congress had the powers to impose a purchase mandate under its Commerce and Necessary and Proper Powers. Part III.A of NFIB found that Congress lacked such a power.

Today, could Congress give people a "choice": get vaccinated against COVID-19 or pay a nominal penalty? I think such a federal law would be valid under the Due Process Clause, in light of Jacobson. But Congress would not have the power to enact this law under its Commerce and Necessary and Proper Clause authorities.

At this point, some astute reader may ask about California v. Texas: Josh, how can the post-2017 ACA impose a mandate if the penalty is $0? Part III-A of NFIB considered Section 5000A(a) standing by itself. The plaintiffs never challenged Section 5000(b) as unconstitutional. And, the Court's analysis in Part III-A did not consider the penalty; it focuses entirely on the mandate in Section 5000A(a). That analysis applies in the same fashion to the pre-2017 ACA as it does to the post-2017 ACA. The astute reader may now asks a different question: Josh, how can anyone be injured by the penalty-less mandate? In my view, the injury in fact from NFIB was premised on the mandate, standing by itself. And, that injury in fact in 2020 is more severe than the injury faced in 2012. The dialogue continues: Josh, how can the Court issue a remedy to enjoin the enforcement of a penalty-less mandate. That question concerns the other two prongs of the standing inquiry: redressability and traceability. The Cato amicus brief carefully separated these prongs, which are, regrettably, often merged. First, we discussed injury in fact. Later, we considered redressability and traceability in the context of severability–what Steve Sachs called the "bank shot" theory of standing. I think the injury in fact argument is on solid ground. But I freely concede that the latter two elements are much tougher.

I've given the issue of mandates some thought. The ideas in this post have been floating in my head for some time. I'm grateful to have the opportunity to expound on them here. But, above all else, the Supreme Court needs to clear up the relevance of Jacobson. It may be one of the most misunderstood cases in the modern era.

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  1. What about Muh body muh choice. If we’re so worried about collateral damage we’d crack down on abortion which has a near 100% chance of a fatality.

    1. Ignoring your question begging, consider how the right to privacy operates differently on abortion versus a pandemic.

      Ending a pregnancy isn’t contagious.

      1. I’m a carrier for pregnancy. I can only infect others.

        1. “I’m a carrier for pregnancy. I can only infect others.”

          You win the internet today.

      2. Ending a pregnancy isn’t contagious.

        No, but an abortion does involve the actions of one (or more) human beings causing the death of another human being.

        1. Only if you beg the question.

      3. An abortion is fatal with near-certainty. Being contagious is not. This isn’t hard.

    2. I guess the argument should be that states can impose a vaccination mandate unless it creates an undue burden then?

  2. I very much enjoyed reading your longer review of the Jacobson precedent.

    Now, in the case of school vaccine mandates – the state (and federal government?) is requiring all students to get an education up to a certain age. They are then requiring all students in any (public or private) communal school system to be vaccinated (say against the flu). So, your only choice if you don’t want to be vaccinated and you don’t want to violate the law … is to home school your kids.

    Is it reasonable for the state to put parents in the position of being required to home school their kids?

    1. Home school or pay to send them to a private school. Seems analogous to me.

      The fact is the fine in Jacobson was not “nominal’ but somewhat problematic, back in the day $5 was a considerable sum to many. Today many poor people would have trouble paying a $150 fine out of pocket, especially if they had more than one person to pay for (like their children) and if sent to jail might lose their jobs.

      1. Private schools are required to abide by state vaccination requirements as well in many cases.

        1. What about private tutors?

    2. No one is requiring anyone to home school a kid, it is a choice, you either take the reasonable steps to prevent the spread of the virus, or your kids don’t go to school. No one has a right to infect others.

      1. Way to miss the point, Molly. If the government cannot legally compel behavior X on its own but can compel education and makes all school-based education conditional on X behavior, then the government is logically compelling either X or homeschooling.

        Your claim that “no one has a right to infect others” is a simplistic soundbite with no legal or scientific basis. I have no “right” to kill you with a car. You, however, have no right to arbitrarily forbid everyone else from using cars merely because there is a theoretical possibility of fatal accidents.

        1. And yet no one has objected to a driving licence mandate for several decades now.

          1. False analogy. There is no mandate to get a drivers license. There are a great many people even in the car-centric US who get along just fine without one.

    3. AtR…I’ll answer that. You asked: Is it reasonable for the state to put parents in the position of being required to home school their kids? Answer: Yes

      Why? The parent has an ‘opt-out- option. They can choose not to send their child to a public school. It is entirely their choice.

      Now, whether the tax dollars of their child should follow them to a private school of their choice is a separate question. I personally would allow this.

  3. What if, instead of mandating vaccination and punishing people for refusing to get vaccinated, a state government, or the Federal government, were to enact a ban on un-vaccinated people from going to public places or businesses? So you don’t get punished for refusing the vaccine, but you do get punished for refusing the vaccine and going to a public place where you would increase other people’s risk of exposure. Could the ban include the streets of cities and towns, so you could refuse the vaccine without being punished, but only if you stay in your own home?

    1. It seems to me a ban on entering businesses for the unvaccinated does not conflict with NFIB‘s rule that mandates cannot be imposed on those who aren’t already engaging in economic activity.

      1. I apologize for being slow, but I can’t quite figure out what you mean by that sentence; there are so many negatives in it!

        “It seems to me that…” (All clear so far)

        “… a ban on entering businesses for the unvaccinated …” (Yes, I understand that phrase, it’s what I was asking about)

        “…does not conflict with NFIB‘s rule that mandates cannot be imposed on those who aren’t already engaging in economic activity.” (This is the puzzling part of your answer. I count four negatives in it (“not”, “conflict with”, “cannot be imposed”, and “… aren’t already engaging in …”) and it’s not entirely clear how the negatives are meant to interact with each other.)

        Could you please clarify? I appreciate your response, but right now I cannot figure out what it means. If I had to guess, I’d bet you mean that my proposal — everyone must choose one of three options: (1) get vaccinated, or (2) stay away from businesses and do your business by mail or online or by phone, or (3) get punished by the government — would stand, at least as far as NFIB v. Sibelius is concerned. Am I reading you correctly?


        1. NFIB held that a constitutionally valid regulation of commerce presupposes the existence of commercial activity to be regulated. A mandate to carry health insurance was held to be unconstitutional because it regulated people who were not engaging in commercial activity. In contrast, people who enter a business are engaging in commercial activity. Therefore, a mandate on this subset of people is not precluded by NFIB,.

          1. People who *purchase* something from a business are engaged in commercial activity. People who merely enter a business are not. Maybe they’re the clerk’s mom and bringing him lunch – not a commercial activity.

            1. Bringing your kid a lunch could affect the interstate market for lunches, so could def be regulated per Wickard v Filburn.

          2. Ah! Thank you very much.

  4. Hey, Josh read my comment in his previous post and decided to run with my analysis in this new post. He even uses, almost verbatim, my example of physical forcing a syringe in a person.

    I’m am influencer!! I can’t wait to be cited in a judicial opinion. Don’t worry Josh, you can put this out there as your own analysis and discovery.

    In a little bit I’ll respond with what you’re still missing in this analysis. You can then write a new post as if it’s your idea. At some point, you might even have enough for a law review article

  5. What kind of moron believes that a vaccine mandate, especially one involving actual force is even remotely appropriate for this situation?

    Maybe I just have a bad taste left over from my experience with the government rushing through an anthrax vaccine program but the threat posed by covid is not the same as a soldier under threat of an anthrax exposure.

    Make the vaccines available, prioritize those most vulnerable and likely to benefit from the vaccine but it has to be voluntary.

    1. “What kind of moron believes that a vaccine mandate…..”

      Politicians. Statists. Nannies. Karens. Busybodies. But I repeat myself.

    2. What kind of moron believes that a vaccine mandate, especially one involving actual force is even remotely appropriate for this situation?

      The kind of moron who understands externalities.

      But if you prefer massive fines over actual force, that’s fine with me.

  6. I am not worried about the government forcing me to get vaccinated.
    They’ll get us by making employment or employment contracts to be conditional on being vaccinated.
    Or students attending school, college or university.

    QANTAS of Australia will not allow passengers to board their aircraft unless they produce proof of vaccination when it is readily available for all public. Just read that news yesterday.

    1. Proof of vaccination? Good luck with that. Another opportunity for the phoney ID industry.

      1. Hey! Be careful not to step on anybody’s toes!

    2. Unlikely since there are not government imposed vaccine requirements for employment for other viruses. But private businesses can choose not to have an un-vaccinated person as a customer.

      1. Better be careful Molly, because your reasoning can be extended in very creative ways. You won’t like them.

  7. The majority of people who get infected have no or little symptoms, true even of 80 year olds.

    If young, why should I inject a vaccine with an unknown track record, that alters my DNA, and may have immediate side effects, to prevent a virus infection weaker than a cold? Kids get everything, 6 colds a year. They do not get this one.

    1. I don’t know why I bother, but: “Because asymptomatic carriers can still infect others, and kill them.”

      1. Technically, the evidence suggests that asymptomatic carriers do not infect others. Presymptomatic carriers are a problem, but even they, by and large, do not infect anyone else.

        The real issue is presymptomatic carriers who have “superspreader” capability and are in their infectious period.

        So … for the fear of this very small fraction of people, we have closed down the entire economy. It’s like closing all the streets in NY because there are violent gangsters walking around.

        1. AtR – “The real issue is presymptomatic carriers who have “superspreader” capability and are in their infectious period.”

          It is estimated that 80+% of the covid infections are from less than 20% of the infected. Consistent with the superspreader concept.

        2. It is not a conspiracy theory. It is a fifth grade math and denominator problem. I can put horrible pictures of crash victims on the front page and get all driving banned. What would be missing is the denominator. The denominator is that a billion miles would have been driven for each of those horrible crashes.

          This corona violation of the Anecdotal Fallacy is the biggest mistake in human history. It took out $4 trillion from the world GDP. That impoverishment will kill millions by Deaths of Despair and 130 million people by starvation. Mao, Stalin do not come close to these Democrat Governors, mostly lawyers, in mass murder. The medical hierarchy skipped class when they covered denominators in fifth grade. Lawyer math stops at the fourth grade, of course.

      2. I don’t know why I bother but good drivers can still kill others while driving so ban all cars makes as much sense as the nonsense you are pushing. You demand the worst outcome be the presumed starting certainty and go from there. Fuck off with your cowardly nonsense.

        1. The Democrat governors violated the Anecdotal Fallacy, not me. There are 30000 deaths a month in nursing homes. Those should be deducted from the COVID total. Most of the other deaths were from undertreated cancer and heart disease, caused by the shutdown of elective care. Elective, means scheduled, not optional. That leaves very death from COVID. The flu is worse. The attribution to COVID was to defraud Medicare.

        2. I don’t know why I bother but bad drivers are still kept off the road by driving licence mandates. So Fuck Off with your ridiculous 5th grade incel ultra-libertarianism.

          1. “I don’t know why I bother but bad drivers are still kept off the road by driving licence mandates.”

            LOL. Yeah. Licenses actually stop bad drivers from being on the road. Right.

    2. None of the vaccines alter your DNA.

      1. Too bad, I was hoping for invisibility or laser vision.

      2. When we say, mRNA vaccine, the m part, the messenger part, where is carrying its message to? Please review your comments before posting.

        1. The m part of “messenger RNA” indicates that it is a message to the ribosomes, which are components of cells that transcribe RNA to the proteins they encode for. After a modest time the vaccine’s mRNA, like the mRNA the cell normally produces from its own DNA, will be destroyed by the cells. Cells break down mRNA, whether provided by the cell’s nucleus or by Moderna, because otherwise cells would forever produce any protein they ever produced once, which would not be a very good idea.

          The mRNA vaccines instruct the cells to produce CV19 spikes, which are a protein. The spikes leak out of the cells and then provoke an immune response by the immune system. That immune response will inactivate future CV19 spikes that come on invading virus particles, therefore preventing that virus from infecting the vaccinated individual.

          The mRNA is not back-copied to the cell’s DNA. It only persists for a modest amount of time [a few minutes, I think] and then it’s gone.


    3. that alters my DNA

      Regurgitating stupidity like that is not an effective way to make your case.

      1. Please review your comments before posting. When we say, mRNA vaccine, the m part, the messenger part, where is carrying its message to?

        1. Ribosomes, David. It goes DNA->RNA->Ribosomes->proteins.

          This is not CRISPR.

          1. SARC. Isn’t COVID RNA wrapped in a lipoprotein case? Does it not take over the human cell DNA to reproduce itself, and mutate rapidly, compared to non-RNA viruses? This is not a harmless virus component to be recognized by the immune system. The vaccine messes with our DNA. What reviewed publication makes you feel safe about this untested technology?

            1. No, RNA doesn’t change DNA. It doesn’t touch DNA. DNA is transcribed into RNA, but itself does not change.

              I’m not an expert, but from what I’ve read it encodes a particular bit of a COVID antigen protein (and some kinda sheath, you’re right).

              The mechanism of action is it’s taken up into the cell, where it migrates to the ribosome which uses the RNA’s base sequence code to stick a bunch of amino acids together into proteins. In this case, the antigen that the body will react against.

              Not even the whole virus. I hear they concentrated on the infamous spike protein that is part of why COVID is so badass.
              I think you’re talking about CRISP which is derived from a bacterium that has an antiviral defense mechanism which recognizes foreign DNA (via a guide RNA sequence) and uses a nuclease protean to remove it.

            2. The reviewed publication is my college bio textbook.

  8. Martinned’s comment “I don’t know why I bother, but: “Because asymptomatic carriers can still infect others, and kill them”

    While theoretically true, the risk of transmission from an asymptomatic person is very low – vs a pre symptomatic person or symptomatic person.

    1. In addition to being utterly clueless in general, Martinned is a prime example of one of those IFLS types who has next to no understanding of science at all.

    2. I seriously don’t get the importance of the distinction here between “asymptomatic” and “presymptomatic.”

      Say you have a positive test, but show no symptoms. How do you know which category you are in? Aren’t you asymptomatic until you get symptoms, at which point you learn that you were presymptomatic all along?

      Or say you just have no symptoms. No test. How do you know if you are asymptomatic, presymptomatic, or uninfected?

      1. Hush. Only pro-liberty science is allowed in the comments section!

      2. Bernard11 comment – “I seriously don’t get the importance of the distinction here between “asymptomatic” and “presymptomatic.

        You have been pretty consistent being unable to understand simple concepts

    3. risk of transmission from an asymptomatic person is very low

      Fortunately we don’t have to multiply a low risk per person by a large number of people. O, wait…

  9. This is all quite silly.

    The only relevant constitutional limit on state government police powers here would be substantive due process. What does substantive due process require? It requires sufficient justification? How sufficient? We don’t know, because Jacobson and Buck were decided before levels of scrutiny were created. But what we do know is that in both Jacobson and Buck, large majorities of the Court deferred to state determinations on issues of medicine and public health. In Buck, they did so even to the point of authorizing a permanent procedure that was a substantial abridgment of the petitioner’s rights.

    And importantly, these cases were decided during an era when the Supreme Court was quite willing to impose SDP limits on state legislation, whether economic (Lochner) or non-economic (Pierce).

    Prof. Blackman is just reaching way way out here. There’s no reason to read any sort of artificial limit into Jacobson, especially given the sterilization mandate upheld in Buck. The state government can stick the needle into your arm, and it can do it whether or not there’s a jail sentence or fine attached to it. All the state needs is a sufficiently deadly disease that requires a vaccine. That’s the law. The Constitution simply does not enact Mr. Josh Blackman’s Social Statics.

    As for the federal government? Yeah, NFIB v. Sibelius means the Commerce Clause can’t be used as a hook for it. But the tax power is fine- so all the government would need to do is create a tax penalty sufficient to get people to vaccinate.

    1. Dilan, you are effectively arguing that all those supposed inalienable rights are actually alienable … you just need to convince enough people that there is a “good enough reason” ™. Every despot in history has had one of those.

      1. I am arguing that Supreme Court precedent holds that as long as a disease is sufficiently deadly, you don’t have a right to refuse vaccination.

        Now, I don’t really give a crap about originalism or textualism, but the Constitution says nothing about a right to refuse vaccination either. If you think that makes us “despotic”, well, OK, maybe it does. It wouldn’t be the first thing.

        1. Read the article, Dilan. Supreme Court precedent says no such thing – unless you rely on Buck which nobody with sense wants to.

          1. The article is Blackman straining against the precedent and attempting to distinguish it.

            Whether he succeeds or not us an opinion. But don’t confuse his advocacy for analysis.

            1. A key problem is that Josh wants “compulsory” to mean “by physical force,” when that is not what the term means in this context (or in a dictionary). To further complicate the issue, he wants to force the term “mandate” into the analysis, without actually giving that term a meaning. Even more glaring is the fact that he is missing a key distinction between Jacobson and Bell, and the connection that Holmes was likely making between the two.

              Part of me wants to just give him the answer, but then he’ll write a third post using what I say. Of course, he’ll add a concluding paragraph stating the idea was always floating around in his head.

              1. And as Noscitur pointed out in the previous post, he’s taking a particular statue as setting out the Constitutional limits.

                I think it’s pretty nutty, but stranger things have gotten the nod from SCOTUS.

                Commenters like Rossami taking it as analysis are at best mistaken.

  10. The smallest scintilla of governmental interest will always beat the biggest individual right. That is the ruling by the Supreme Court.

  11. They can’t forcibly vaccinate people who prefer to carry disease (or people who prefer their children to carry disease) but they can deny benefits to the unvaccinated.
    How does this relate to the fact that it is apparently not a Constitutional violation to require drug tests for high-school athletes?

  12. The situation is similar to Gonzalez v. Roman Catholic Archbishop. If you read the case, involving a contract in which the Catholic Church accepted an endowed chaplaincy with the nearest male relative to the donor to be appointed as chaplain, the opinion construed the contract and determined that the church got to add new qualifications for the priesthood whichrendered the claimant ineligible as a matter of contract law, because the parties agreed to it. It said nothing about civil courts being forbidden from determining who gets to be a priest by the constitution. Yet this is the proposition Gonzalez has been routinely cited for.

    Like Gonzalez, the popular meaning of Jacobson is probably too well established to go back to what it actually said. After all, even if the issue wasn’t before the Supreme Court, Jacobson never said the courts couldn’t forcibly vaccinate someone. And sterilization became well entrenched in constitututional law. After Toe, there were sterilization cases that held that sterilization and abortion were both means to keep defectives from becoming public charges and “a burden on the state.”


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