Different Pokes for Different Folks: The Importance of Ensuring Mandatory Vaccinations Remain a State Police Power Even in the Midst of a Pandemic

Abstract

In an effort to combat the COVID-19 pandemic, the federal government sought to issue an emergency temporary standard through its federal agency, OSHA, as a way to mandate employers with 100+ employees to create policy that will mandate those employees to become vaccinated or submit to weekly testing and wearing face masks. However, Jacobson v. Massachusetts has long established that mandatory vaccinations of Americans is a police power that belongs to the states, not the federal government. How should one feel when it is the government, whether federal or state, giving direction as to what should be injected in their body?

The issue that this article addresses is whether there is ever a time the federal government has a right to usurp the authority of the states’ police power. Also, this article demonstrates that while the federal authorities have no power to force vaccinations, the states do, and that the autonomy that citizens hold over their bodies is not absolute when it involves the general health, welfare, and safety of others. These issues are addressed by the recent opinions of the U.S. Fifth and Sixth Circuit Courts of Appeals in National Federation of Independent Business v. Department of Labor, OSHA, by the Supreme Court of the United States, and by case law that governs the police powers that states have in requiring vaccinations.

Keywords: COVID-19, Coronavirus, federalism, police powers, vaccine, vaccinations, mandatory vaccinations, usurpation of state police power, absolute autonomy, public health, safety and general welfare, OSHA, emergency temporary standard, ETS, compulsory vaccination, Jacobson v. Massachusetts, In re: MCP No.

JEL Classification: J00, J01, J08, J21, J23, J70, J80, J83, K00, K10, K19, K30, K31, K32, K39