in World News Covid Response at Five Years: The Illegal Vaccine Mandates
by Brownstone Institute
Initially, there was professed bipartisan opposition to Covid vaccine mandates. “No, I don’t think [the shot] should be mandatory, I wouldn’t demand it be mandatory,” President-elect Biden told the press in December 2020. Dr. Fauci agreed. “You don’t want to mandate and try and force anyone to take a vaccine. We’ve never done that,” he explained. “It would be unenforceable and inappropriate.”
A few months later, Speaker of the House Nancy Pelosi echoed their sentiment. “We cannot require someone to be vaccinated,” she told reporters. “That is just not what we can do. It is a matter of privacy to know who is or who isn’t.” In July 2021, White House Press Secretary Jen Psaki said mandates were “not the role of the federal government.” She continued, “that is the role that institutions, private-sector entities, and others may take.”
At first, the experimental shots remained voluntary. Despite pressure campaigns, government-sponsored propaganda, and relentless false advertising, many Americans declined the “vaccines” without becoming second-class citizens.
That changed on September 9, 2021, when President Biden announced a dramatic policy shift to compulsory vaccination. “We’ve been patient, but our patience is wearing thin,” he told Americans as he announced mandates that applied to nearly 100 million men and women.
He demanded all federal workers and contractors be vaccinated. Additionally, he announced an “emergency rule” that would require private employers with 100 workers or more to require vaccinations or implement weekly testing protocols. Dr. Fauci suddenly announced he supported “many, many more mandates.” He appeared at a conference of LGBT journalists to detail his shift in opinion. Compulsion was necessary, he explained. “You’d like to have [citizens] do it on a totally voluntary basis, but if that doesn’t work, you’ve got to go to the alternatives.” The alternative, of course, was an involuntary basis. The vaccine was optional only if people agreed to take it; then, he would reveal its true nature as a mandate.
The Covid regime got in line with the new messaging, and suddenly, former opponents of mandates like Pelosi described anti-mandate views as “alarming” and “fanning the flames of dangerous disinformation.” Mayor Bill de Blasio told New Yorkers, “We’ve got to shake people at this point and say, ‘Come on now.’ We tried voluntary. We could not have more kind and compassionate…No more. Get vaccinated, or you can’t work in New York City.”
DNC Chair Jaime Harrison went on MSNBC to decry Republicans’ “crazy” “meltdown” in response to President Biden’s mandates, insisting his party was “moving forward with protecting the American people.” The Democratic Party unequivocally endorsed vaccine requirements, criticizing “breathless and irresponsible talking points from Republican leaders.”
In January 2022, a poll showed that 59% of Democrats favored requiring unvaccinated citizens to remain confined to their homes, 55% of Democrats supported fines for the unvaccinated, 47% of Democrats favored a government tracking system for the unvaccinated, and 45% of Democrats supported internment camps for the unvaccinated.
The 180-degree change in opinion created obvious questions. Were Biden and Fauci right when they opposed mandates, or had their concerns been “breathless and irresponsible talking points?” Could states force children to receive Covid vaccines? Were these policies merely inadvisable, or were they overreaches of government authority?
Biden’s executive actions were largely unconstitutional and illegal. Mandates on children were capricious and immoral. The ramifications for local industries, government agencies, and the military were disastrous. The Covid regime shamelessly justified its actions with false claims of legal legitimacy. Each step was a calculated lie resulting in an assault on American liberties.
Can the State Mandate Sterilization?
“The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”
– Justice Oliver Wendell Holmes, Jr.
Advocates of the shots repeatedly cited a 1905 Supreme Court case that upheld a smallpox vaccine mandate. Jurists, politicians, and talking heads invoked Jacobson v. Massachusetts to argue that the government could require any medical program to support “public health.”
In the New York Times, Wendy Parmet suggested that challenging Jacobson’s “precedent” threatened “peril for other long-accepted public health measures.” CNN legal analyst Joey Jackson called government control “the question of the pandemic, which has really made so many people suffer.” He said Jacobson gave states the complete power to “mandate vaccinations.” Former Secretary of Labor Robert Reich called the case “the essence of our society. If government can’t take action on behalf of the people with regard to public health, then what good is a society?”
Liberal judges agreed. Judge Frank Easterbrook of the Seventh Circuit Court of Appeals wrote, “given Jacobson v. Massachusetts…there can’t be a constitutional problem with vaccination against SARS-CoV-2.” The American Bar Association offered the glib headline “Not Breaking News: Mandatory Vaccination Has Been Constitutional for Over a Century,” arguing that Jacobson made Covid shot requirements “One-hundred percent constitutional.”
They were so self-assured that their supporters never asked them basic questions. What does Jacobson actually hold regarding mandates? Did the Court grant complete power to states? Could San Francisco require small doses of opiates to inoculate the population against fentanyl? Can the president require federal contractors to get the flu shot? Is that government power the “essence of our society?” Has medical freedom gone unchallenged at the Court for over a century?
Of course not, and the fanatics of the Covid vaccines misrepresented the case and deliberately omitted more recent and relevant opinions. The facts of Jacobson were straightforward: a smallpox epidemic arose in Massachusetts in 1902. The state required residents to get vaccinated or pay a $5 fine (about $150 in today’s currency). At the time, the smallpox vaccine had been in use for 100 years and prevented transmission. Outbreaks of the disease had a case fatality rate of up to 30%. The Supreme Court, in a decision written by Justice John Marshall Harlan, upheld the vax-or-fine program three years later.
The holding, however, was not a bright-line rule in favor of mandates. Harlan explicitly denied granting governments total power to implement public health measures. He wrote that courts must overturn statutes “purporting to have been enacted to protect the public health, the public morals, or the public safety” that have “no real or substantial relation to those objects” or constitute a “plain, palpable invasion of rights.”
In analyzing whether to uphold the smallpox vaccine initiative, he considered three factors: (1) whether the mandate was “arbitrary and not justified by the necessity of the case,” (2) whether it went “far beyond what was reasonably required for the safety of the public,” and (3) whether it was a “reasonable regulation” that had a “real and substantial relation” to the health of the citizens.
There were no demands to follow the science or trust the experts; instead, the critical analysis considered the danger posed to the overall population, alternatives to mandates, and a century of medical data.
Government agencies failed to prove each standard that Harlan cited in Jacobson, as explained by Gerard Bradley, a Constitutional Law professor at Notre Dame, and Dr. Harvey Risch, Professor Emeritus of Epidemiology at Yale. Jacobson not only didn’t make mandates “100 percent constitutional;” the Supreme Court’s opinion underlying the “essence of our society” suggested that Covid shot requirements were illegal. When viewed through the Court’s analytical framework, the Biden administration foisted a medical experiment on Americans that was unscientific, irrational, and unconstitutional.