The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Friday, a federal judge rejected a challenge to Michigan State's vaccine mandate. (Eugene blogged about the case here). The Court accepts the mythicized account of Jacobson. The Court finds that Jacobson "essentially applied rational basis review," and that Supreme Court precedent is "binding." To support that conclusion, the Court does not cite any Supreme Court cases. Not even Jacobson itself! He couldn't, because the word "rational" appears nowhere in the district court decision. Instead, the court cites Judge Easterbrook's decision in Klaassen v. Trustees of Indiana University, Justice Gorsuch's concurrence in Roman Catholic Diocese of Brooklyn v. Cuomo, and Harris v. University of Massachusetts Lowell.
Let me be very clear here: there is no "binding" Supreme Court precedent holding that vaccine mandates are reviewed with rational basis review. The Michigan court was correct that lower courts have read Jacobson in this fashion:
Over the last year and a half, courts have looked to Jacobson to infer that a rational basis standard applies to generally applicable vaccine mandates; the facts of the case are obviously not going to be identical to every COVID vaccine case that has been or is currently being litigated.
But this rule is not present in Jacobson itself. Indeed, the judge seems to recognize this shortfall, when he wrote that "Jacobson essentially applied rational basis review and found that the vaccine mandate was rational." They key hedge word is "essentially." There cannot be "binding" precedent that "essentially" reaches a conclusion.
I would encourage any judge or litigant that plans to cite Jacobson to read my article. You will avoid making avoidable mistakes.