A federal COVID-19 vaccine mandate: Dubious legality, faulty policy

Though scientists are working tirelessly to create a COVID-19 vaccine, there is growing concern that many people may refuse to take it once one becomes available. According to recent polls,  only half of Americans said they would get a vaccine, and another quarter were on the fence. Some of the communities most at risk from COVID-19 are also the most resistant: Black people account for nearly one-quarter of U.S. COVID-19 deaths, yet 40 percent surveyed said they would refuse a vaccine. Twenty-three percent of Hispanics surveyed said they don’t plan to get vaccinated. Given this current climate, some have called for mandatory COVID-19 vaccinations for all Americans, including a New York State Bar Association task force.  

Could Congress pass a law requiring every U.S. resident to get vaccinated? While it would be a swift legislative action that in theory might move us closer to the goal of herd immunity to protect those who are most vulnerable, such as the elderly, a federal mandate is a poor policy approach. Moreover, Congress may not have the legal authority to mandate vaccinations.       

Congress has broad powers. With its ability to regulate interstate commerce, for example, it may be able to ban unvaccinated people from traveling on airplanes. Or, it might use its spending power to push states to enact certain policies by making them a condition for receiving federal funds. After all, the states do, in fact, have the power to require citizens to receive vaccinations under some circumstances. In the 1905 Jacobson case, the U.S. Supreme Court decided that, because of the states’ interest in protecting public health, the vaccine requirements in question did not violate personal liberty. All states require that children be vaccinated for school — and those requirements have been consistently upheld. 

Congress has also stepped into the vaccination fray through the Public Health Service Act (PHSA), which grants the federal government the power to prevent the spread of disease, such as through quarantine. One way the PHSA helps prevent outbreaks is by offering states and localities grants to improve vaccination rates through subsidies, education and outreach.

However, these examples of congressional authority are not likely to hold up in court. A federal vaccine mandate would likely be found unconstitutional under the Commerce Clause because it would regulate activity that is not solely economic. Regardless of the national interest, it will also be hard for Congress to use its spending power or its authority under the PHSA to compel states toward a vaccine mandate without appearing coercive.

In fact, when Congress threatened to withhold new and existing Medicaid funds from states that failed to expand it, this coercion led the Supreme Court to strike down the Medicaid expansion in the Affordable Care Act. If Congress can’t require individuals to have health insurance or eat broccoli, it can’t mandate vaccinations either.

Beyond legality, a federal vaccine mandate does not solve root problems that prevent people from vaccinating. A mandate is also likely to fuel the anti-vaccination movement and even greater distrust in government. Conspiracy theorists already allege a nefarious relationship between vaccine makers and the federal government. 

There are other approaches to increasing the COVID-19 vaccination rate, however. In the 1960s and 1970s, the federal government took a less heavy-handed approach to vaccinations when the Department of Health and Human Services encouraged states to implement stricter vaccination requirements.

This administrative-encouragement approach avoids weaponizing desperately needed funds to address their public health situations and avoids feeding into Big Government fears. This is best accomplished through the dissemination of state and local best practices to increase vaccination rates using improved parental and policymaker education, as well as increased engagement of state and local health officials. 

A cooperative approach would also reduce the burden on poor and disadvantaged citizens, who may face penalties for not being vaccinated or otherwise lose access to critical funds and support because of a state’s failure or non-compliance to enact a mandate. By replacing a mandate with strong incentives and programs that tout the benefits of vaccines and provide resources for people to easily receive them, we would avoid harming poor and disadvantaged people.

If we want to achieve consistent, long-term rates of high vaccination, public health policies should embrace cooperation, not coercion, and address the underlying causes that breed resistance to vaccinations. There is no vaccine against vaccine refusal, and legally questionable actions by Congress won’t fill the bill. In this instance, it is the carrot, not the stick, that will lead to a healthier America. 

Y. Tony Yang, MPH, is a professor and the executive director of the Center for Health Policy and Media Engagement at the George Washington University School of Nursing, and the Department of Health Policy and Management, George Washington University Milken Institute School of Public Health. Dorit Rubinstein Reiss is a professor at the University of California Hastings College of the Law.