The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, President Biden slipped some significant news. He asked DOJ (presumably OLC) whether the federal government can impose a federal vaccine mandate.
"I asked the Justice Department to determine whether they're able to do that legally, and they can. Local communities can do that, local businesses can do that," the president said. "It's still a question whether the federal government can mandate the whole country. I don't know that."
I have four immediate reactions.
First, is there sufficient statutory authority to impose such a mandate? Of course Congress could enact a new statute. But Congress doesn't actually legislate anymore. It's more likely that the President relies on some extant authority. To impose the eviction moratorium, the CDC relied on fairly generalized statutes that concern quarantines and the like. And many courts have held this authority was inadequate. I doubt there is any statute that could justify a true, nationwide vaccine mandate. And if OLC tries to repurpose some old authority, DOJ will face a major major question problem. No mouse-hole can fit an elephantine-sized vaccine mandate.
Second, Jacobson v. Massachusetts (whatever it means) does not fully resolve the issue. That case concerned the state's general police power. The federal government lacks a generalized police power. Rather, it has enumerated powers. What enumerated power would give the executive branch the ability to forcibly jab millions of Americans with a needle–perhaps in the absence of clear statutory authority? There is caselaw about a federal draft, though that authority is closely tied to the federal war power. You know, I thought we were done arguing about mandates with California v. Texas. Alas, we are stuck in a loop.
Third, DOJ should be careful how it defines a "mandate." In Jacobson, there was no forcible mandate to be vaccinated. People could instead choose to pay a $5 fine or get jabbed. (Roughly $150 in present-day value). If the Biden OLC tries to depart from this "choice" construction, and impose a straight-up mandate–punishable by criminal sanction–they will have difficulty relying on Jacobson. I hope to say much more about Jacobson soon. My article, The Irrepressible Myth of Jacobson v. Massachusetts should hit law review submission boxes shortly. (I previewed it here).
Fourth, from a policy perspective, this idea strikes me as counter-productive. The worst way to encourage people to get a shot is to mandate it. People will resist and engage in civil disobedience. I think there is a good reason why most nations around the world have not imposed forcible mandates.
Now if OLC never publishes this opinion, we can presume the answer is "No, you cannot impose a nationwide vaccine mandate." I'm grateful Biden slipped here.