Are Vaccine Mandates or Proof of Vaccination Status Constitutional?

To understand the laws in our country is no simple task. There is a reason why it takes lawyers about six to seven years worth of schooling to become a lawyer. Just like a medical student will not learn of every single technique, ailment, or treatment; lawyers don’t come out of law school knowing every single law on the books either. As a matter of fact most laws are written in massive bills that can be hundreds of pages long with so many provisions and jargon packed in that it’s hard to tell what the actual topic of the law or bill is actually about.

So when people ask “Are these vaccine mandates constitutional?” or “Can my state or even the federal government make me show proof of vaccination?” the answers aren’t nearly as simple as the questions seem.

With concerns of censorship over so-called misinformation and fake news it can be equally as hard to find someone to break down the information accurately and with the least amount of bias.

This article was written when Florida stated they would ban all vaccine passports and even fine companies or institutions that made them a requirement. This got those who support and those who oppose it wondering if it was legal or not. People in the state argue about the merits of forced injections on an otherwise healthy populace, or whether government of any kind has the right to make a medical decision for their citizens.

Like the first paragraph points out, we must first know what the law in question actually says. So often we hear a headline of a story and it won’t be at all what we expected. The same is true for bills. We hear the title or we hear what others have to say about it and we assume we know what’s in the bill, statute, mandate, or order.

In the case of Florida, here is the actual statute.

Basically, it states that Florida businesses, government entities, and educational institutions “may not require proof  operating in this state, may not require patrons or customers to provide any documentation certifying COVID-19 vaccination or postinfection recovery to gain access to, entry upon, or service from the business operations in this state. This subsection does not otherwise restrict businesses from instituting screening protocols consistent with authoritative or controlling government issued guidance to protect public health.”

Florida told these three groups that they may require screenings, in other words, proof of negative tests for COVID-19, but that they can’t demand proof of vaccination. Doing so will cost a $5,000 fine per person impacted by those who disobey the statutes.

Is that constitutional or not? The federal government is already in the process of suing the state of Florida according to the article.

Here is what a business attorney from Nevada had to say: “Therese Shanks is an attorney at Fennemore, working in the Business Litigation practice group in Reno. She possesses extensive appellate experience and has successfully handled numerous appeals before the Nevada Supreme Court, Nevada Court of Appeals, the Ninth Circuit Court of Appeals and the United States Supreme Court.”

First she said we had to ask the following four questions about the four different types of mandates being ordered.

1. Can a state constitutionally issue a vaccine mandate? Yes.
2. Can a state constitutionally prohibit vaccine mandates? Yes, probably.
3. Can the federal government constitutionally require its employees to be vaccinated? Yes, probably.
4. Can the federal government constitutionally require that every American citizen be vaccinated? I do not know.  

Shanks goes onto talk about Jacobson v. Massachusetts from 1905 wherein the Supreme Court of the United States “upheld Boston’s smallpox vaccine mandate as a constitutional exercise of the state’s police power. Jacobson has not been overruled, which means it is still law. Many state courts have relied on Jacobson to reject challenges to mask and vaccine mandates.” 

Shanks also warns that the Supreme Court of today is unlikely to make any rulings on the legality of mandates and vaccine requirements because the Justices have stated that “the high court does not consist of “public health experts” competent to address issues of “medical and scientific uncertainty” and that courts should generally defer to the states when it comes to pandemic related public health measures.” 

The 10th Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” This basically means that if it’s not in the constitution it’s up to the state governments whose people have more control or power.

Shanks reminds us that while the federal government can require their own employees to be vaccinated, it is not at all clear or certain whether the feds can require every citizen to be vaccinated.

So, are vaccines constitutional? Are vaccine passport bans constitutional? It really depends on the state you live in.

Here’s a video from just a few days ago with an update on the walkouts that can take place should the administration continue to push their OSHA mandates.