Constitutionality of Vaccination Mandate

by Dick Hall-Sizemore

There has been much opposition expressed on this blog regarding UVa, and, by extension, other higher education institutions, requiring students and staff to be vaccinated against COVID as a requirement for attending class in the fall.  The policy has been said to be, among other things, unconstitutional.

Not surprisingly, a judge has spoken. Today, a federal district judge ruled in favor of Indiana University in a suit brought challenging that university’s vaccination mandate. The court said, “The Fourteenth Amendment permits Indiana University to pursue a reasonable and due process of vaccination in the legitimate interest of public health for its students, faculty and staff.”

Of course, this is only one judge and it is not unusual for judges in different parts of the country to rule differently on similar points of law. Also, a district court’s ruling is generally applicable only in that district, but the case is likely to have some precedential value elsewhere.

The challengers have vowed to take the case to the U.S. Supreme Court.

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27 responses to “Constitutionality of Vaccination Mandate”

  1. LarrytheG Avatar

    It’s a good point and one might think that given the core issue that there would be dozens , hundreds of such lawsuits perhaps including some State AGs… maybe there are….

    And maybe something ripe for SCOTUS to carve out something but that would be “activist” thinking…

    the plain language seems to say that rights CAN be taken – as long as DUE PROCESS is followed….

  2. Publius Avatar

    In a 101 page opinion, it is sometimes hard to know what is wheat and what is chaff.
    An injunction is an extraordinary remedy – a high hurdle – so the Constitutional issue was not reached – here is one excerpt –
    They ask the court to enter a preliminary injunction—an extraordinary remedy that requires a strong showing that they will likely succeed on the merits of their claims, that they will sustain irreparable harm, and that the balance of harms and the public interest favor such a remedy.
    The case that limits the Judge is from 1905. It is hard to square the abortion and other lines of cases with that case and judges have hinted that the reach of that decision will be cut back or overturned.
    In sum, the law today recognizes Jacobson as a precursor to rational basis review. This is consistent with statements of many justices who continue to acknowledge Jacobsonas good law, albeit with constitutional restraint.74 Government action that infringes on the liberty interest here, as in Jacobson, is subject to rational basis review. See Sweeney, 767 F.3d at 668
    And this is how the Court concludes – Even assuming in certain respects irreparable harm and an inadequate remedy at law, the students here haven’t established a likelihood of success on the merits of their Fourteenth Amendment due process claim, or that the balance of harms or the public’s interest favors the extraordinary remedy of a preliminary injunction, before a trial on the merits. The court thus DENIES their preliminary injunction motion [ECF 7].

    This was a Trump appointee and he paid attention to precedent and the judicial standards required for the injunction.
    When these cases make it to the Supreme Court, they will be found unconstitutional.

    This was not a decision on the merits. It was a denial for an injunction.

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      It is indeed true that this was a decision on the request for a preliminary injunction, not on the merits. Given the time frame, that is the only thing that it could have been decided on. A decision on the merits could not have been made until a more extensive hearing and any such decision would not have been reached until long after the semester began.

      As you point out, there are three tests a litigant requesting a preliminary injunction must meet:

      1. strong showing that he will likely succeed on the merits

      2. will suffer irreparable harm without injunction

      3. public interest favors granting injunction

      Likely success on merits–after considering all the evidence presented, the judge found that the students would not likely win on the merits. He did admit that “not every stone has been unturned by the parties,” but, at this point, he found it unlikely that the students would win. In fact, he said that the “students have a low likelihood of success.”

      Irreparable harm–The judge had this to say about possible harms and the choices available to the students:

      “This university policy isn’t forced vaccination. The students have options—taking the vaccine, applying for a religious exemption, applying for a medical exemption, applying for a medical deferral, taking a semester

      off, or attending another university. This policy applies for the fall 2021 semester only. Students may make their choice after being advised of the risks and

      benefits of the vaccines, thereby giving informed consent. The court recognizes that for certain students this may prove a difficult choice, but a choice nonetheless. The choice isn’t so coercive as to constitute irreparable constitutional harm. Although it proves a

      condition to attend this fall, it is reasonable under the Constitution.”

      Balance of harms and public interest–“Enabling this state university to work through these problems reasonably fosters public health and safety in

      areas of scientific uncertainty.” In summary, “the balance of harms and the public interest favor Indiana University and the determination that it has reasonably determined the best course of action for the health of its academic community this upcoming fall semester.”

      Regarding the argument, often raised on this blog, that the vaccines have not been finally approved, but EUA and “experimental”, the court gave short shrift to that idea:

      Not all EUAs are created equally. Because of the widespread use of a COVID-19 vaccine, the FDA
      informed manufacturers that it expected the same level of endpoint efficacy data as required for full
      approval, enough safety data to justify by clear and compelling evidence the vaccine’s safety, and confirmation of the technical procedures and verification steps necessary to support full approval.27 In short, and as described in more detail below in this
      opinion’s analysis, the FDA promulgated guidance that enhanced the basis on which any COVID-19 vaccine would meet EUA approval. In setting these more stringent standards, the FDA invited EUA applications only for vaccines positioned well to receive full approval.”

      Finally, in your comment, you concentrate on the Jacobson precedent and give the judge a lot of credit for using that test. I cannot get excited about a district court judge following precedent and using tests that have been handed down by appellate courts. That is their job and what they are supposed to do.

      1. Matt Adams Avatar
        Matt Adams

        You were being disingenuous (again). You implied this was ruled based upon Constitutionality “Constitutionality of Vaccination Mandate“,that is not the case as pointed out by the poster.

        Jacobson has been misapplied since it’s decision in 1905, it was used as justification in 20’s in Buck v Bell a Virginia case as grounds for forced sterilization of “feeble minded” people.

        What keeps getting repeated is that whenever the Government deems it necessary to remove personal liberty in the name of a “crisis”.

        1. Dick Hall-Sizemore Avatar
          Dick Hall-Sizemore

          The court ruled that the students would be unlikely to win in their challenge of the constitutionality of the vaccination requirement. That certainly falls under the heading of “constitutionality of vaccination mandate”. The title, by itself, implies neither yes or no on constitutionality. I cannot control what you infer.

      2. Publius Avatar

        Ultimately, you cannot square this with abortion, striking down sodomy laws, gay marriage, and now transgender “rights.” By the individual liberties standards, then the VA vaccination statute is unconstitutional in that it is too restrictive. (Think of all the abortion cases on “access.”) By only allowing religious and medical exemptions, they are discriminating against the libertines and the religious. The libertines – my body my choice. And the religious because they may not have a religious reason against vaccines, they are vaccinated, but they have a problem with THIS VACCINE, but it would be wrong for them under their religion to lie about it.
        And you know why nobody has cared since 1986? Because most people choose to get vaccinated. But, as Matt points out, Jacobson led to Buck v Bell. This is a huge mark of shame. Like rounding up the Japanese…but at least there we had a real war!

        1. Dick Hall-Sizemore Avatar
          Dick Hall-Sizemore

          I am not trying to square it with abortion and I fail to see the relationship between vaccination and sodomy laws, gay marriage, and transgender rights.

          1. Matt Adams Avatar
            Matt Adams

            Jacobson was used as root to the State controlling personal liberties of individuals. It’s jurisprudence gave way for laws respecting sodomy, interracial marriage, gay marriage and transgender rights.

            Of them which were ultimately found to be Unconstitutional, but reality says they should’ve never been able to be passed to begin with.

  3. Nancy Naive Avatar
    Nancy Naive

    “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

    There it is in B&W; cannot abridge immunities…

    Shhhh, they’re Republicans. These are the same guys who believed that Pence could overturn an election.

  4. Ronnie Chappell Avatar
    Ronnie Chappell

    Well said. If Pizza Hut can require a valid driver’s license for pizza delivery drivers, Sentara can and should require a valid vaccination certificate for health care workers as a condition of employment.

    1. Matt Adams Avatar
      Matt Adams

      There is no correlation between those two items.

      1. WayneS Avatar

        Yes, but can Sentara require a valid liability waiver from the patient as a condition of a pizza delivery guy dropping off a large meat-lovers in the cardiac care unit?

        1. Matt Adams Avatar
          Matt Adams

          Yeah, I think an AMA might cover a meat-lovers.

          I’m appalled that people don’t realize that if they can mandate an non-FDA approved vaccine, the Government can mandate literally anything.

          Informed consent will no longer exist, we will be at the mercy of the Government.

          Edit: Also, the repeated conflation that because people don’t believe in mandates that they are somehow anti that item.

          1. Publius Avatar

            By Jove, I think he’s got it!

      2. Ronnie Chappell Avatar
        Ronnie Chappell

        Disagree. Employers have broad latitude to establish conditions of employment and to enforce them. For example, rules against visible piercings or tattoos or the wearing of religious or political pins or jewelry on the job. Other examples, dress codes or rules requiring the wearing of uniforms. Employees have the freedom to comply or to seek employment elsewhere.

        1. Matt Adams Avatar
          Matt Adams

          “For example, rules against visible piercings or tattoos or the wearing of religious or political pins or jewelry on the job”

          Again there is no correlation between that and vaccination.

        2. Matt Adams Avatar
          Matt Adams

          “For example, rules against visible piercings or tattoos or the wearing of religious or political pins or jewelry on the job”

          Again there is no correlation between that and vaccination.

      3. Ronnie Chappell Avatar
        Ronnie Chappell

        Disagree. Employers have broad latitude to establish conditions of employment and to enforce them. For example, rules against visible piercings or tattoos or the wearing of religious or political pins or jewelry on the job. Other examples, dress codes or rules requiring the wearing of uniforms. Employees have the freedom to comply or to seek employment elsewhere.

  5. Publius Avatar

    People – let’s try sanity again!
    Prior to 1986 in VA there was no vaccine mandate for colleges. Somehow, we all survived. Statues and buildings were a danger…everywhere! Why, the Law School took $3 mil and named the building Withers Hall. How I survived those last 5 months – whew!
    Since 1986, the VA statute allowed medical and religious exemptions for FDA approved, long accepted vaccines. And other than the 35 years of paper and time keeping (Not sure of the benefit), NO ONE CARED.
    Because for the most part, people widely accepted the vaccines. A small number could not – medical – or would not – religious.
    Maybe 1-5%. Ask anybody who ran a school and they will go…Oh, yeah, we did have some.
    None of the exempt for 35 years had to agree to be a second class citizen. For APPROVED vaccines.
    Now, we have an UNAPPROVED vaccine. There are plenty of valid reasons to be hesitant of it. We have a weird coalition of disgruntled – not just those crazy Bible-thumpers – people from all sorts of perspectives – diversity! – have valid reasons not to want it. First, the young are not at risk. Second, those who have had Covid. Third, people who wish to wait for approval and make a decision then.
    Fourth, people who don’t trust the experts. And guess what, the greater the push to require it, the greater the reluctance.
    Under current Supreme Court jurisprudence from a line of cases that started in 1948 (can’t remember the name of that one) to Griswold to Roe to striking down sodomy, allowing gay marriage and now the trans/LGBT litigation, you can’t square even the VA statute with these cases, but nobody paid attention because those vaccines are so widely accepted. There might be a hint there for those who care to think…

    Try persuasion. Try being honest. Quit dis-respecting people who disagree with you and try to understand that there is a possibility, just maybe, they could be correct. In fact, I bet they are better qualified to make decisions about their own healthcare than you are. Crazy, right?

    1. Matt Adams Avatar
      Matt Adams

      People don’t seem to be aware of the genesis of a lot of horrible Unconstitutional laws, that removed the freedoms of any number of people.

      Jacobson has been the fall back whenever a “crisis” has occurred for our Government to trample personal liberties.

  6. I have deleted a thread that had degenerated into name calling that I will not tolerate. Everyone be on notice: I will delete any future comment in which one participant calls another a “liar.” Disqus will flag any comment in which that word appears, and it will require my personal approval.

    By all means, expose inaccuracies, errors, and misinterpretations. Feel free to gleefully eviscerate the arguments of others. That’s jolly good fun.

    But assume the good will of those you disagree with. If commenters cannot refrain from personal insults, I will ban them from the blog.

    1. Publius Avatar

      This issue brings out emotions!
      And rightfully so – suppose you have a kid already in the school, who has had Covid and shook it off. And now, get vaxed or be a second class citizen? With an unapproved vaccine that the kid doesn’t need? And being treated like this was NOT what you signed up for when you selected that school?
      Add to it the “experts” haven’t exactly covered themselves with glory, and the Administrations hide behind “we are relying on the experts’ advice,” and won’t allow any input!
      And finally, the Three Card Monte – cases! Delta variant! People are dying! This variant could be worse! The vax on top of natural immunity COULD be better. Blah, blah blah – and meanwhile, still never addressed:
      1. EUA vaxes have a federal right to accept or refuse
      2. VA statute does not mention Covid
      3. All health systems explicitly say that informed consent is required for medical treatment. This is a codification with roots back to Hippocrates, to the Nuremberg Code where explicit, willing, non-coerced consent is required for “experiments,” which EUA vaxes technically are, to a 1973 American Hospital Assn Patient Bill of Rights, to the policies at EVERY hospital
      4. The VDH Code of Ethics says it will comply with all laws and policies
      5. Jim Ryan clerked for the Supreme Court. Every lawyer on every BOV KNOWS that they are violating individual rights. Every doctor knows this mandate is highly questionable as to willing, informed, consent – the kids are being blackmailed into “agreeing.”
      This is a huge black mark on all involved. This will be abhorred like Buck v Bell one day.

      1. Nancy Naive Avatar
        Nancy Naive

        It also brings out hypocrisy…
        Watch what they do.

        1. Publius Avatar

          Uh…Nancy – who exactly is the hypocrite?
          Fox HR has issued some policy and employees don’t have the right to disagree?
          And it seems the policy is “encourage,” etc. And , why of course, only for good and noble purposes.
          I watch what Leftists do – you deceive and deflect and engage in whataboutisms…

          Just so you know, the EEO guidance says no “EEO law” forbids vax mandates. While I think even that is wrong, and I know it will shock you, the EEOC can be wrong – think of Obama’s “Dear Colleague” letter suspending due process for boys who engage in drunk sex which the girl regrets a month or year later – how many lives were ruined for that one? But, of course no EEO law forbids vax mandates because EEO has no authority over drugs!
          You know who does? The FDA. You know what the FDA’s law says about EUA vaccines – “accept or refuse.” How about our “leaders” FOLLOW THE LAW?

    2. Nancy Naive Avatar
      Nancy Naive

      Can’t imagine anyone here being so crass.

  7. Nancy Naive Avatar
    Nancy Naive

    “Promote the general welfare”
    Plus, mandated vaccines predates the nation.

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