De Blasio’s Vaccine Mandate Looks Unlawful The Supreme Court has approved only far milder measures. By Eugene Kontorovich
New York Mayor Bill de Blasio this week announced that all private-sector employees in the city will be required to be vaccinated against Covid-19 by the end of the month. The mayor calls his plan “Key to New York,” and its function is to lock hundreds of thousands of residents out.
The constitutionality of Mr. de Blasio’s mandate will turn primarily on Jacobson v. Massachusetts (1905), in which the Supreme Court upheld a smallpox vaccination law. The justices held that state governments have the power to exercise “self-defense” against infectious disease on behalf of the community, so long as the measures were “reasonable” and not “arbitrary.” But Mr. de Blasio’s measure goes far beyond the holding or reasoning of the precedent, to say nothing of the past century of constitutional doctrine.
Jacobson involved smallpox, which before its eradication was one of the most fearsome diseases known to man. It killed 30% of those infected. It disproportionately affected children and commonly left them disfigured by lesions. Covid-19 is serious, but it’s in a different league.
The town of Cambridge imposed a one-time fine of $5 (equivalent of roughly $160 today) on those who refused vaccination. The details of Mr. de Blasio’s scheme haven’t been announced—he promises “guidance” next week. But if it resembles President Biden’s federal mandates, it will impose mounting, ruinous fines. It isn’t the mild inducement the court upheld in Jacobson—it is pure coercion.
Mr. de Blasio boasted his program is the “first of its kind.” Yet Jacobson emphasized that laws requiring smallpox vaccination had been around for generations: “Nearly every state in the Union has statutes to encourage, or directly or indirectly to require, vaccination; and this is true of most nations of Europe.”
Jacobson repeatedly noted that Cambridge was responding to a continuing and worsening outbreak. Mr. de Blasio repeatedly described his mandate as a “pre-emptive strike.” He said it was prompted by the prospect of “holiday gatherings” and the new Omicron variant. He admitted “we are waiting for more facts” about the strain, which may turn out to be quite mild. A constitutional allowance for prophylactic mandates would permit any government interference in individual healthcare on grounds that it might be good in some uncertain future.
Unlike the Cambridge law, which applied to all inhabitants, New York’s mandate applies only to private businesses. But work, as opposed to home or social gatherings, doesn’t pose any special risk for transmission. And it’s difficult to see how employees who work outside (say, landscapers or roofers) or at home pose much risk at all. Mr. de Blasio said the mandate is designed to create a “level playing field” among businesses—hardly a public-health justification.
The city offers a $500 bonus to municipal workers who get the shots. A one-time fine for the unvaccinated might be reasonable under Jacobson. Forbidding them from earning a living goes much too far.
Mr. Kontorovich teaches constitutional law at George Mason University Scalia Law School.
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