Federal Constitutional Challenges to the OSHA COVID-19 Vaccination Mandate

Abstract

Despite the development of vaccines against once-widespread, potentially fatal diseases such as smallpox and polio, the United States has never had a general federal vaccination mandate. Yet in September 2021, President Joe Biden directed the Occupational Safety and Health Administration (OSHA) to promulgate a mandatory vaccination requirement—known as an “emergency temporary standard”—under the Occupational Safety and Health Act of 1970 If OSHA has the authority to adopt such a rule (which is doubtful), the federal courts will soon decide what, if any constitutional limitations exist on the federal government’s vaccination authority. The most likely challenges will rest on one (or more) of four provisions: the Article I Commerce Clause, the Fifth Amendment Due Process Clause, the First Amendment Free Exercise Clause, and the Fourth Amendment.Despite a host of Supreme Court decisions filling out the Commerce, Due Process, and Free Exercise Clauses, as well as the Fourth Amendment, the Court’s 1905 decision Jacobson casts a long shadow over contemporary constitutional law. Unless and until the Court overrules Jacobson, no constitutional challenge to an otherwise lawful mandatory vaccination requirement is likely to succeed, other than possibly the Commerce Clause. The bottom line is this: It is unlikely that the Constitution would stand in a state’s or Congress’s way were it to adopt a mandatory vaccination requirement.