The COVID-19 pandemic has prompted a variety of federal, state, and local authorities to issue varying degrees of mandates that aim to stop the spread of SARS-CoV-2. The majority of these mandates pertain to the wearing of face masks, stay-at-home orders, and likely soon, vaccination. While the Trump Administration has not issued any federal mandates, President-elect Joe Biden recently stated that he will ask Americans to wear masks for the first 100 days of his presidency. However, because federal and state governments have different powers under the U.S. Constitution and respective state constitutions, it is not clear if an “ask” can have the force and effect of a mandate.
Federal Authority for Mask and Vaccine Mandates
Currently, no existing federal law explicitly addresses mask wearing for public health purposes. Section 361 of the Public Health Service Act is the best statutory basis for federal mask and vaccine mandates, though it is not without its limitations. The Public Health Service Act gives the Centers for Disease Control and Prevention (CDC) the authority to make and enforce regulations necessary “to prevent the introduction, transmission, or spread of communicable diseases from foreign counties into the states or possessions, from one state or possession into any other state or possession.” 42 U.S.C. § 264(a). A broad interpretation of this provision could support federal mandates in circumstances that could curtail the foreign or interstate transmission of COVID-19. This is precisely the statutory basis relied upon by the CDC for its implementation of a “No Sail” order for cruise ships in March 2020. However, the statutory language that follows the above provision can be read as limiting the CDC’s authority. The Act states, “[f]or purposes of carrying and enforcing such regulations [the CDC] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be infected or contained as to be sources of dangerous infection to human beings, and other measures, as in [its] judgment may be necessary. Id. In FDA v. Brown & Williamson Tobacco Corp., the Supreme Court stated that a court must interpret the statute “as a symmetrical and coherent regulatory scheme…and fit, if possible, all parts into a harmonious whole.” 529 U.S. 120, 133 (2000). Courts must be guided by a degree of common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency. Id. To date, the CDC has only used its authority to enforce quarantine and isolation measures of people and goods. As such, it remains to be seen if “other measures” can include mask and vaccination mandates that could withstand a court challenge.
Alternatively, Congress could potentially implement nationwide mask or vaccination mandates under either the Spending or Commerce Clause. The Spending Clause enables Congress to offer federal funds to nonfederal entities and prescribe the terms and conditions under which the funds are used. Congress could rely on this authority to incentivize states to enact mandates that meet the conditions required by Congress. While the Spending Clause is subject to certain limitations, it is a broad power that allows Congress to spend for the “general welfare.”
State Authority for Mask and Vaccine Mandates
Congress could also act under the Commerce Clause, which grants Congress the power to regulate: 1) the channels of interstate commerce, like roads and canals; 2) persons or things in interstate commerce; and 3) activities that substantially affect interstate commerce. Like the Spending Clause, Congress’s power under the Commerce Clause is broad but not limitless. For example, Congress cannot compel individuals to participate in commercial activity. National Federal of Independent Business (NFIB) v. Sebelius, 567 U.S. 519 (2012). And, requiring individuals to wear a mask or receive a vaccine could be construed as compelling individuals to engage in an activity that is not even commercial in nature. A federal mandate that relies on the Commerce Clause may thus be limited to times when an individual is engaging in certain commercial activities, which may not be effective as a public health intervention and would likely be vulnerable to a subsequent legal challenge.
While the federal government’s authority to enact mask and vaccine mandates is limited and must likely be coupled with financial incentives, states have much broader authority to implement such mandates under the Tenth Amendment and their respective state constitutions and laws. Also unlike the federal government, states have a police power and may enact laws “to provide for the public health, safety, and morals” of the states’ inhabitants. As such, states are much more apt to issue mask and vaccination mandates than the federal government and may do so with or without federal financial incentives.
State-mandated vaccinations have been upheld by the Supreme Court. In Jacobson v. Commonwealth of Massachusetts, the Supreme Court upheld a Massachusetts law that gave municipal boards of health the authority to require vaccination of persons over the age of 21 against smallpox, which was actively spreading at the time. 197 U.S. 11 (1905). The Court later affirmed this rationale in Zucht v. King, when a public school prohibited a child from attending due to her unvaccinated status, holding that “it is within the police power of a State to provide for compulsory vaccination.” 260 U.S. 174 (1922).
All 50 states and the District of Columbia currently have laws that require specific vaccines as a condition of participation in public schooling. While some states offer religious and philosophical exemptions to vaccination, other states offer only medical exemptions. More recent cases have found that a state is not constitutionally required to provide a religious or philosophical exemption. States are given broad latitude with regards to compulsory vaccination, so it is likely that a state’s mask or a COVID-19 vaccine could withstand legal challenge so long as the law or order is implemented in accordance with state and federal law.
While Congress’s and the president’s power are confined to those enumerated in the Constitution, states have expansive authority to implement measures designed to improve public health under their police power. Therefore, states are likely able to mandate both masks and vaccines and may do so with or without a federal incentive or mandate.
If you have any questions about this legal update, please contact a member of the MMM healthcare group.