The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Government Employer Likely May Require COVID Vaccination, Even of Employees Who Have Already Had COVID


From Norris v. Stanley, decided Friday by Judge Paul Maloney (W.D. Mich.):

[T]here is no fundamental right to decline a vaccination…. Plaintiff attempted to distinguish her case from Jacobson v. Massachusetts (1905) but was unsuccessful. She argues that her case is different because Jacobson never considered natural immunity, and because the policy in Jacobson was subject to bicameralism and presentment to the Massachusetts legislature, while the MSU policy was not.

First, the asserted factual differences between Jacobson and Plaintiff's case are not relevant. 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. See, e.g., Klaassen v. Trs. of Ind. Univ. (7th Cir. 2021) ("Plaintiffs assert that the rational-basis standard used in Jacobson does not offer enough protection for their interests and that courts should not be as deferential to the decisions of public bodies as Jacobson was, but a court of appeals must apply the law established by the Supreme Court."); Roman Catholic Diocese of Brooklyn v. Cuomo (2020) (Gorsuch, J., concurring) (stating that Jacobson essentially applied a rational basis standard); Harris v. Univ. of Mass., Lowell (D. Mass. Aug. 27, 2021) (applying rational basis to the university's "generally applicable public health measure[]"). This Court must apply the law from the Supreme Court: Jacobson essentially applied rational basis review and found that the vaccine mandate was rational in "protect[ing] the public health and public safety." The Court cannot ignore this binding precedent.

Given that rational basis applies to this case, the burden is on Plaintiff to show that the MSU vaccine mandate is not rationally related to a legitimate government interest. Plaintiff provided evidence in the form of testimony and declarations from an expert witness who stated that naturally acquired immunity is just as effective as vaccine immunity . She thus argued that it was irrational for MSU to not carve out an exemption in its vaccine mandate for individuals like herself who have naturally acquired immunity from a previous COVID infection.

On the other hand, Defendants presented competing evidence from their own expert witness that refuted the effectiveness of naturally acquired immunity. The Court heard the battle of the experts, and they essentially presented that there is ongoing scientific debate about the effectiveness of naturally acquired immunity versus vaccine immunity. In creating its vaccine policy, Defendants relied on guidance from the CDC, FDA, MDHHS, and other federal and state agencies that have extensively studied the COVID-19 vaccine.

Put plainly, even if there is vigorous ongoing discussion about the effectiveness of natural immunity, it is rational for MSU to rely on present federal and state guidance in creating its vaccine mandate. {See, e.g., New CDC Study: Vaccination Offers Higher Protection Than Previous COVID-19 Infection, CDC (Aug. 6, 2021, 1:00 PM). The Court also notes the letter from U.S. Senator Roger Marshall of Kansas, himself an M.D., and co-signed by fellow Doctors Caucus members of the House and Senate, urging the CDC to recognize COVID-19 natural immunity in future guidance policies. The letter references studies identifying the efficacy of natural immunity.} Thus, Plaintiff has failed to show that the MSU vaccine mandate does not meet rational basis. She is unlikely to succeed on the merits of her claim.

{Plaintiff makes two alternative arguments for why she is likely to succeed on the merits. First, she argues that MSU did not have the power to implement its vaccine mandate in the first place because it is exercising police power in doing so, and the Michigan legislature has never delegated such power to MSU. This argument is completely without merit because the Michigan Constitution gives MSU's "governing board[] authority over 'the absolute management of the University.'" Mich. Const. art. 8 § 5. MSU certainly has the power to implement its vaccine policy because the Board of Trustees has the broad power to govern the university.

Second, Plaintiff argues that the MSU vaccine policy is preempted under the federal Emergency Use Authorization ("EUA") statute. See 21 U.S.C. § 360bbb-3. She argues that the vaccine mandate "actually conflicts" with the EUA, and it is thus preempted. The basis of Plaintiff's argument is that the EUA requires medical providers to obtain informed consent from individuals receiving an EUA vaccination and to provide those individuals the option to accept or refuse administration of that vaccine. MSU's policy does not preclude Plaintiff from receiving informed consent, nor does it prevent her from accepting or refusing administration of the vaccine. Rather, the vaccine is a condition of employment, which Plaintiff does not have a constitutionally protected interest in. There is no preemption issue here.}