Today, a patchwork of state laws exists concerning vaccinations. Wide-ranging exemptions in some states increase the chance of exposures, resulting in potential collective action problems as diseases spread across borders. There is no single, nationwide vaccination mandate. They key precedent, Jacobson v. Massachusetts, only  concerns the state police power, and does not address the federal government’s powers. Does Congress have the power to enact a federal vaccination ban that requires all children to receive a vaccine?

This issue came up during oral argument in NFIB v. Sebelius. Justice Breyer asked Attorney Michael Carvin whether the federal government could mandate inoculation against an epidemic. Mike Carvin answered no, based on Morrison (a case Breyer dissented in).

JUSTICE BREYER: I’m just picking on something. I’d like to just — if it turned out there was some terrible epidemic sweeping the United States, and we couldn’t say that more than 40 or 50 percent — I can make the number as high as I want — but the — the — you’d say the Federal Government doesn’t have the power to get people inoculated, to require them to be inoculated, because that’s just statistical.
MR. CARVIN: Well, in all candor, I think Morrison must have decided that issue, right? Because people who commit violence against –
JUSTICE BREYER: Is your answer to that yes or no?
MR. CARVIN: Oh, I’m sorry; my answer is no, they couldn’t do it, because Morrison –
JUSTICE BREYER: No, they could not do it.
MR. CARVIN: Yes.
JUSTICE BREYER: They cannot require people even if this disease is sweeping the country to be inoculated. The Federal Government has no power, and if there’s — okay, fine. Go ahead.

In short, Carvin explains that if the federal government lacked the power to police domestic violence in Morrison, they lack a similar power to police against inoculation.

MR. CARVIN: Violence against women obviously creates the same negative impression on fellow citizens as this communicable disease, but the –and it has huge effects on the health care of our country. … I don’t know why having a disease is any more local than — that beating up a woman.

Justice Breyer went on to pursue another line of questioning, but I think the follow-up to Carvin should have been this–domestic violence, though a nationwide problem, exists on a case-by-case basis. One person can inflict violence on one or more women in his or her vicinity. In contrast, an epidemic is a nationwide problem that can spread exponentially. Think of Patient Zero at Disneyland in California. One infected person can spread the disease nationwide in a manner of days, in a way that domestic violence simply cannot have an interstate impact.

This view provides a strong backing for the so-called “collective action” approach to federal power, which a number of law professors advanced as the defining theory for NFIB v. Sebelius. The Court didn’t adopt this approach. However, protecting against an epidemic that spreads across borders seems a much stronger case for collection action than the ACA’s individual mandate.

Another angle to consider is whether the Necessary and Proper clause is broad enough to cover something as invasive as forcing individuals to be vaccinated. While this may be necessary, it is likely not proper. If the Court found that forcing someone to *buy* insurance is improper, then forcing someone to receive an injection is almost certainly beyond the scope of the federal government’s authority–even if this is within the police power of the state under Jacobson. This is even worse than the so-called broccoli horrible.

One more angle concerns the federal displacement of a traditional ground of state law. For centuries, the state police power has entailed regulation over inoculation and quarantines. According to that power, states have crafted various exemptions and approaches that, for better or worse, reflect the considered judgment of their elected branches. A nationwide federal policy would immediately preempt all of those laws. Under NFIB, this counsels against the constitutionality of this invasion of state power.

Or, imagine another hypothetical. Congress passes a statute that provides that schools will only receive money if 100% of their students are vaccinated–subject to very narrow religious exemptions (think of the ACA’s contraception mandate). The requirement to impose the vaccination mandate would be far too great to fall within the enumerated spending power. It would also displace the traditional state power over health and safety laws.

The time to think about these questions of constitutional law is before, not during outbreaks when there is a panic and people stop thinking rationally. I should also note the ACLU favorably cited Jacobson in their Obamacare brief. Also, don’t forget that Jacobson v. Massachusetts was the basis of Justice Holmes’s decision in Buck v. Bell.

“The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”

Update: A 2014 note in the Columbia Law Review by Arjun K. Jaikumar addresses the constitutionality of a federal quarantine. Here is the abstract:

The Public Health Service Act (PHSA), codified at 42 U.S.C. §§ 201–300, confers federal authority to institute medical quarantine and isolation measures in response to outbreaks of specific infectious dis- eases. Congress’s authority to pass the PHSA is derived from the Commerce Clause of the U.S. Constitution. Until recently, the constitu- tionality of the PHSA’s quarantine provisions had not been extensively analyzed or seriously questioned in the academic literature. However, this Note argues that recent Commerce Clause jurisprudence from the Supreme Court, most notably the Court’s 2012 decision in National Federation of Independent Business v. Sebelius, calls the constitu- tional validity of the PHSA’s quarantine provisions into question. Specifically, this Note argues, NFIB may preclude Congress’s authority to quarantine individuals not engaged in economic activity or interstate travel.

This Note analyzes the history of quarantine and isolation regula- tions in the United States and the Court’s fractured decision in NFIB, concluding that a reading of NFIB that removes all regulation of in- activity from Congress’s jurisdiction under the Commerce Clause would indeed endanger the PHSA’s quarantine provisions. However, this Note argues, federal quarantine may survive NFIB based on a narrower reading limiting NFIB’s holding to purchase mandates and the compul- sion of economic activity; based on the “aggregation” loophole an- nounced in United States v. Morrison; or based on the second prong of Commerce Clause analysis announced in United States v. Lopez, which confers exceptionally broad authority on Congress to protect the instrumentalities of interstate commerce.