There is a historical parallel between the Southern segregationist Dixiecrats’ response to Brown v. Board of Education, requiring desegregation of the nation’s schools “with all deliberate speed,” to the Trump death cult of anti-science, anti-maskers, anti-vaxxers response to President Joe Biden’s modest plan to mandate Covid-19 vaccines to get control of the deadly Coronavirus pandemic.
After the Supreme Court announced its historic decision in Brown v. Board of Education in 1954, Southern segregationist Dixiecrats condemned the decision and vowed to defy it. The Southern Manifesto And “Massive Resistance” To Brown:
James Eastland, the powerful Senator from Mississippi, declared that “the South will not abide by nor obey this legislative decision by a political body.”
Senator Harry Byrd of Virginia described the opinion as “the most serious blow that has yet been struck against the rights of the states in a matter vitally affecting their authority and welfare.”
[In] August of 1954, Virginia Governor Thomas Bahnson Stanley created a commission to conspire to defy Brown. The Gray commission, named after State Senator Garland Gray, held that school attendance should not be compulsory; money should be allocated to parents as tuition grants if they opposed integration; and authorized local school boards would assign students to schools themselves.
By 1956, Senator Byrd had created a coalition of nearly 100 Southern politicians to sign on to his “Southern Manifesto” an agreement to resist the implementation of Brown.
On February 25, 1956, Senator Byrd issued the call for “Massive Resistance” — a collection of laws passed in response to the Brown decision that aggressively tried to forestall and prevent school integration. For instance, the Massive Resistance doctrine included a law that punished any public school that integrated by eliminating its state funds and eventually closing the school. [Sound familiar?]
In addition to legal and legislative resistance, the white population of the southern United States mobilized en masse to nullify the Supreme Court’s decree. In states across the South, whites set up private academies to educate their children, at first using public funds to support the attendance of their children in these segregated facilities, until the use of public funds was successfully challenged in court. In other instances, segregationists tried to intimidate black families by threats of violence and economic reprisals against plaintiffs in local cases.
[C]entral High School in Little Rock, Arkansas became a staging ground for an alarming picture of democracy gone astray. The response to the presence of the Little Rock 9 was so violent that President Eisenhower felt compelled to call in the National Guard. The Little Rock 9 case resulted in the Supreme Court’s decision Cooper v. Aaron (1958), a landmark ruling in which the Supreme Court reaffirmed its decision in Brown and the obligation of states to follow the mandate of the U.S. Supreme Court to desegregate schools.
Note: Eisenhower’s successor, President John F. Kennedy, followed Eisenhower’s example by sending the national guard and the Department of Justice to integrate the University of Mississippi in 1962, and the University of Alabama in 1963, and other Alabama schools.
In the face of this fierce and ongoing resistance, the Legal Defense Fund sued hundreds of school districts across the country to vindicate the promise of Brown. It was not until LDF’s later victories in Green v. County School Board (1968) and Swann v. Charlotte-Mecklenburg (1971) that the Supreme Court issued mandates that segregation be dismantled “root and branch.”
At the outset, it must be noted that Supreme Court precedent supports a vaccine mandate. Twice the Supreme Court has upheld state authority to compel reasonable vaccinations. The States don’t have arbitrary power, but they have discretion to act reasonably in protecting the public’s health, Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), cf., Zucht v. King, 260 U.S. 174 (1922).
In the recent decision of Klassen v. The Trustees of Indiana University, the court explained:
According to Zucht, Jacobson settled the state’s power “to provide for compulsory vaccination” and, “consistently with the federal Constitution, delegate to a municipality authority to determine under what conditions health regulations shall become operative.” Id. at 176. This was not authorization of “arbitrary power,” but only that broad discretion required for the protection of the public health.” Id. at 177. In doing so, “state and federal legislatures [enjoy] wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Gonzales v. Carhart, 550 U.S. 124, 163 (2007) (citing Jacobson, 197 U.S. at 30- 31).
Based on this power, states and their authorized arms have historically adopted vaccination mandates. For instance, all fifty states and the District of Columbia have laws requiring students to receive certain vaccines before they may attend school. Many align their vaccine requirements with CDC’s immunization recommendations, and all laws provide exemptions for medical reasons and nearly all religious exemptions. [T]he State of Indiana requires all public university students to receive vaccinations for diphtheria, tetanus, measles, mumps, rubella, and meningococcal disease, save for religious and medical exemptions.
[In] this century, other than the Supreme Court’s reliance on Jacobson in 2007, see Gonzales, 550 U.S. at 163, courts have returned again to its guidance during the COVID- 19 pandemic.
[In] sum, the law today recognizes Jacobson as a precursor to rational basis review. This is consistent with statements of many justices who continue to acknowledge Jacobson as good law, albeit with constitutional restraint. Government action that infringes on the liberty interest here, as in Jacobson, is subject to rational basis review. See Sweeney, 767 F.3d at 668.
Peter Canellos and Loel Lau write at Politico, The Surprisingly Strong Supreme Court Precedent Supporting Vaccine Mandates:
The question of whether those [personal liberty] freedoms include refusing a legally mandated Covid-19 vaccine, should any government implement such a requirement today, has yet to come before the Supreme Court — or any court. But in the event that it does, the 116-year-old case brought by Henning Jacobson would be the standing legal precedent. In deciding whether the rules that the Jacobson decision rendered for smallpox would apply to Covid-19, today’s court would need to reckon with a different medical landscape, as well as the freighted politics of the moment. The justices would also find themselves grappling with the legacy of the man who wrote the opinion, Justice John Marshall Harlan.
Harlan in this case wrote for a clear majority of the court. He concluded: “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.”
That last is a classic Harlan sentence, cutting through all the nuances and caveats to reach an essential point of justice. His balancing of the rights of vaccine skeptics against the rights of the community seems especially compelling at a time when those who refuse to get vaccinated are fueling fresh outbreaks and inviting the creation of variants that pierce the defenses of those who are fully immunized. And his thinking could have special resonance: While many of his colleagues have faded into history, today’s justices, conservatives and liberals alike, profess themselves to be deep admirers of Harlan.
But wait, you say, isn’t Jacobson about state and local governments imposing mandatory vaccination requirements? Yes it is, but the principle applies. And imposing mandatory vaccination requirements goes all the way back to George Washington and the Continental Army even before there was a Constitution. As Maggie Astor explains, Vaccination Mandates Are an American Tradition. So Is the Backlash.
[T]here is nothing new under the sun: not years that feel like centuries, not the wailing and gnashing of teeth over masks, and not vaccine mandates either.
[C]ontrary to the [unfounded] assertions of some on the far right, the Biden administration has never suggested going door to door to force people to take coronavirus vaccines. But in the 1890s and 1900s, that actually happened: Squads of men would enter people’s homes in the middle of the night, breaking down doors if necessary, to inject people with smallpox vaccines.
Legally speaking, the Supreme Court resolved the issue of mandatory vaccinations in 1905, ruling 7-2 in Jacobson v. Massachusetts that they were constitutional.
[N]one of it is new, but one thing distinguishes today’s anti-vaccination protesters from those of the past. The opposition was always political. It wasn’t always partisan.
“There are plenty of echoes today: There are liberty claims, there are strong sentiments about parental rights, there are concerns about the science, there are concerns about the profit involved,” Professor Willrich said. “But this party divide in terms of who is most likely to be hesitant or refuse a vaccine mandate is really, I think, something of our own 21st-century moment.”
More importantly, President Biden is limiting his executive order to federal employees and contractors, over whom he unquestionably has legal authority, and he is also using the regulatory framework of the Department of Labor (since the 1930s) and the Occupational Safety and Health Administration (OSHA) (since the 1970s) to regulate employers under the interstate commerce clause.
The first regulation of employers was the Pure Food and Drug Act in 1906, creating the FDA. The federal government has been regulating employers for a very long time, with a very large body of case law precedents and administrative decisions to back it up. This is nothing new.
Rachel Maddow had a very good segment on the historical context of past assertions of executive power by U.S. presidents, to which many of Biden’s conservative critics are apparently oblivious. Born yesterday, and just fell off the turnip truck. History matters. Precedents matter.
Today, just like the Southern segregationist Dixiecrat governors in 1954, we are vexed by Trump death cult GQP governors who propose to defy federal public health and safety regulations for mandatory vaccinations with “massive resistance,” because “We are a death cult, damnit! We’re trying to kill people here!” GQP governors vow to fight Biden’s new pandemic measures, and RNC vows to sue over Biden vaccine, testing mandate.
But of course, Arizona Republicans blast vaccine mandate, vow legal action, and Gov. Ducey: Arizona will ‘push back’ on vaccine mandates.
Note: While a state has standing to sue under federalism principles, the RNC has no standing to bring such a lawsuit. This just exemplifies the insane politicization of vaccines for partisan politics by the Trump death cult.
In either case, legal precedents weigh heavily in favor of the federal government. But this far-right radical Trump Supreme Court cares little for its own precedents, destroying what little credibility this court has remaining. Who knows what they would do?
By the way, the Trump death cult is all for body autonomy when it comes to their personal liberty and choice to be a Covid superspreader asshole and to not wear a mask or get vaccinated, but they are the very same oppressive assholes who are all for denying a woman her body autonomy and choice over her constitutional reproductive freedom.
Do they really want to go down this road? Because they are actually making the case for Roe v. Wade. You can’t have it both ways.
You can be an anti-vaxxer only if you STFU about abortion restrictions. That’s the deal. Your “choice.”
Consider the argument in this post at Occupy Democrats:
Vermont Gov. Phil Scott (R) praised President Biden’s new vaccination policies. https://twitter.com/GovPhilScott/status/1436093027748040704?s=20
“I appreciate the President’s continued prioritization of vaccination and the country’s recovery as we move forward. As Vermont’s experience shows, vaccines work and save lives. They are the best and fastest way to move past this pandemic.”
Too bad this guy is not our governor instead of the criminally negligent Doug Ducey, who is still trying to kill our children.
NBC News reports, “Republican threats to Biden’s vaccine mandates unlikely to succeed, experts say”, https://www.nbcnews.com/politics/politics-news/republicans-threats-biden-s-vaccine-mandates-unlikely-succeed-experts-say-n1278936
Legal experts say [Republican governors will] have a hard time successfully making their case in court.
[L]egal experts said those lawsuits are most likely — but not certain — to fail, due to wide-ranging powers that the Constitution and decades of administrative law precedent have established.
Generally speaking, public health powers are delegated to the states, experts said. But the Constitution also gives the federal government broad powers to regulate certain matters when it perceives that states and localities are not able to do so, or are doing so inadequately.
In this case, experts explained, Biden’s mandates pass muster because he is filtering them through the lenses of workplace safety and through the Constitutional language of federal spending powers.
“President Biden is acting within the authority of the executive branch to impose rules and regulations — sometimes referred to as the regulatory state — and within the rule-making authority associated with a range of federal administrative agencies,” said Juliet Sorensen, a professor at Northwestern University’s Pritzker School of Law and an expert on health and human rights laws.
Biden’s orders will largely be enforced by the Department of Labor, which includes the Occupational Safety and Hazard Administration, an arm of the executive branch with the authority to implement and oversee the orders, Sorensen said. OSHA’s mission is to ensure safe workplace conditions around the country and therefore naturally extends to keeping workers safe from Covid, she added.
“The gravity of the pandemic and the fact that it’s persisted without these mandates in place puts the president on solid ground, legally,” she said.
The president also has the power to regulate spending power, which is relevant to Biden’s mandate requiring employees working in health care facilities that receive Medicare or Medicaid reimbursement to be vaccinated, according to Sylvia A. Law, a professor emeritus at New York University’s School of Law.
Through the Constitution, Congress has the explicit power to attach conditions to whatever money it’s disbursing — including the hundreds of billions it spends each year on Medicare and Medicaid. But the president and the executive branch have the constitutional power to dictate various elements of federal spending, especially when it comes to health care.
“Most of what exists in this space has pretty much been made up by the agencies and upheld in some cases, by the courts. We understand that the Congress paints in broad strokes and, simply put, much of the rest of it gets filled in by rules, regulations and court rulings,” Law said.
“Under current law, it’s clear that Biden has the power to do what he’s done,” she said.
[W]ith the makeup of this current Supreme Court, it’s hard to know how [this] would shake out,” Law said.
Jennifer Rubin at the Washington Post explains, “Biden’s covid order for big employers isn’t unconstitutional. It’s ordinary.”, https://www.washingtonpost.com/opinions/2021/09/13/bidens-covid-order-big-employers-isnt-unconstitutional-its-ordinary/
President Biden announced last week that “the Department of Labor is developing an emergency rule to require all employers with 100 or more employees, that together employ over 80 million workers, to ensure their workforces are fully vaccinated or show a negative test at least once a week.” A right-wing freakout predictably followed, based on misrepresentations of the rule and near total ignorance of the federal government’s power to regulate workplaces.
For starters, this is not a “vaccine mandate.” It is a requirement that employees either get vaccinated or subject themselves to weekly testing. While the preferable route is for tens of millions of American workers to get vaccinated, not a single person will be required to get a shot under this directive. They simply have to agree to testing.
Second, the mock horror that greeted the announcement suggested that critics lack a fundamental understanding of key federal laws. First, Section 361 of the Public Health Service Act allows the Health and Human Services Department or the Centers for Disease Control and Prevention to make necessary measures “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.” This might certainly entail vaccination requirements for anyone but Biden is merely requiring large employers present the alternative of testing or vaccinations.
Third, the Occupational Safety and Health Act has been in effect since 1970. It mandates all sorts of things in workplaces — hard hats, personal protective equipment, steel-toed shoes, ear plugs and goggles, to name a few. In June OSHA issued an Emergency Temporary Standard for health-care workers that required measures to suppress transmission including “patient screening and management; Standard and Transmission-Based Precautions; personal protective equipment (PPE), including facemasks or respirators; controls for aerosol-generating procedures; physical distancing of at least six feet, when feasible; physical barriers; cleaning and disinfection; ventilation; health screening and medical management; training; anti-retaliation; recordkeeping; and reporting.”
Roderick Hills, a New York University Law professor, told the legal website Law & Crime: “The federal government has regulated workplace safety since 1970, when [President Richard M.] Nixon signed the Occupational Safety and Health Act into law. The businesses covered by the Act are all regarded as either ‘in’ or ‘affecting’ interstate commerce and therefore within Congress’ power to regulate under Article I, section 8, clause 3 of the Constitution (the so-called ‘commerce clause’).”
Moreover, OSHA regulates hazards that do not appear only or even primarily in workplaces. Everything from tuberculosis and hepatitis B protocols to bloodborne pathogens to Ebola falls within the so-called general duty clause, which states that “[e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
[R]ight-wing pundits and think tankers [and GQP governors] who simply do not like the law shouldn’t bamboozle the public with assertions that Biden’s actions are a tyrannical overreach of power.
It might be news to the right-wing echo chamber, but the federal government’s power to regulate the workplace is vast; they have an entire Cabinet department that does nothing else.
Axios echoes my point: “America’s civil war of 2021”, https://www.axios.com/biden-vaccine-mandate-republicans-uprising-b0b2aea2-54f6-4a7b-bc22-089de803b609.html
Top Republicans are calling for a public uprising to protest President Biden’s broad vaccine mandates, eight months after more than 500 people stormed the U.S. Capitol [in a violent seditious insurrection] to try to overturn the election.
It has been decades since America has witnessed such blatant and sustained calls for mass civil disobedience against the U.S. government.
Invoking a civil-rights parallel, [a Biden] official added: “Basically Biden is staring down Southern governors (and some Northern allies). … Is America divided? Yes. But Biden is uniting the 75% vs. the 25% [vocal minority] that is in opposition.”
The official’s bottom line: “That is unity politics in a divided nation — unifying the overwhelming majority threatened by an unruly minority” [mob].