It’s Time for a Mandatory State Ordered Covid Vaccine Mandate

It’s Time for a Mandatory State Ordered Covid Vaccine Mandate Jay H Bernstein, Esq. Co-Founder; NJ Bar Association Mass Disaster Response Program 7/20/21

We are in the bottom of the ninth and we are about to lose the game. Delta and possibly even future variants are overwhelming most American states and overwhelming countries even with a higher percentage of vaccinations, like with the United Kingdom. With nearly 50% of the American population fully vaccinated; we must -- as a matter of public policy equity and community public health --finish the race, before we slide back into a catastrophe of endemic proportions. We must have the state, local and federal government issue mandatory Covid 19 Vaccination mandates. We face a never-ending pandemic that is now turning into an unending epidemic. The lives lost, compounded by future exposure of our most cherished group, our children; let alone the slide back to permanent economic failure; demand a course of action of unequaled vision and purpose; mandatory vaccines for all. (with allowable exemptions for medical reasons only; not religious or personal preference exemptions). As called for by eminent groups like the New York State Bar Association (health law section), there must be a mandatory vaccination policy in the United States. The law is crystal clear. The nonpartisan, neutral, Congressional Research Service has completed a recent study, called for by the US Congress; and concretely concluded that every state and municipality have full police powers under the law, to immediately order mandatory vaccinations, --just as it is done for schoolchildren for a myriad of diseases. Statute and case law, and more than 100 years of Supreme Court case law, unalterably support this policy. (See Jacobson v Massachusetts, 197 U.S. 11, 39 (1905). “The states’ general police power to promote public health and safety encompasses authority to mandate vaccinations.” (See “State and Federal Authority to Mandate Covid-19 Vaccinations,” p.2, April 2, 2021, Congressional Research Service, Report R46745). There are variations and questions as to the police power of each level of government to issue a mandate. The 50 states, and each locality, in the interest of protecting the public health, have unequivocal police power to immediately mandate mandatory vaccination policies. This power is fully recognized and unquestioned under state law and federal constitutional law (i.e. child school mandatory vaccinations) (health care workers mandated to receive certain vaccinations as a condition of employment). (Congressional Research Service, Report R46745, p. 2). Unfortunately, the executive branch of the federal government has less of a mandate and legal basis to issue mandatory vaccination orders. Under our federal system the health policy mainly lies with the states. But the US Congress does have the power to mandate vaccinations indirectly based on its enumerated powers in the constitutions Spending and Commerce Clause, in the context of public health. Congress may influence states by making certain federal funds dependent on meeting federal requirements in the public health arena, i.e. vaccinations. Finally, the executive branch power can be expanded. Public health rules empower the Center for Disease Control to set pandemic quarantine rules, which may be expanded in a public emergency. This power, under Section 361 may be expanded to mandatory vaccinations, although the Supreme Court recently derided any agency expansion of powers in areas of grave political and economic consequences, unless directed by Congress. As explained by the Congressional Research Service Report: Certain existing authorities, however, could potentially form the basis of executive action in the context of the COVID-19 pandemic. One such law could be Section 361 of the PHSA. Subsection (a) of this provision, which one court has characterized as “broad [and] flexible,” grants the Secretary of HHS the authority—delegated in part to the Centers for Disease Control and Prevention (CDC)—to make and enforce regulations necessary “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” A broad construction of this authority may permit CDC to issue regulations requiring vaccination in circumstances that would prevent the foreign or interstate transmission of COVID-19.49 ((Congressional Research Service, Report R46745, p. 6). But State Action, Municipal action, and Congressional action are clearly open to allow for immediate mandatory Vaccination policy. Federal action is but a step away. The TIME IS NOW. Each day escalates a limited Pandemic to a permanent life crunching, economically disastrous worldwide, never ending; endemic. America must set the example; mandatory vaccinations for each citizen once the FDA approves the vaccines under non- emergent rules. We are close, it’s the bottom of the ninth; lets not loose; for this is no game. The lives of our Families are at stake, --- and the Future of our Nation… and the World. Jay H Bernstein is an attorney at Kirsch Gelband Stone in NJ. Jay co-founded the NJ Bar Mass Disaster Relief Program in 1996; and serves as a volunteer EMT and Vice President for his local ambulance service. All opinions above are of Jay Bernstein, and do not reflect any organization or group.