On Tuesday, a federal court in Puerto Rico will hear arguments over the constitutionality of the territory’s vaccination mandate for public employees. The case, Rodriguez Velez and. Al. V. Pierluisi-Urrutia, represents the first time that a federal court will rule on the constitutionality of a government mandate. And while the outcome of tomorrow’s hearing has no precedent-setting, an appeal to the First Circuit Court of Appeals will surely follow, whoever wins, making this case a case to watch. Here’s what you need to know.
First things first: Puerto Ricans are U.S. citizens and for the purposes of the issue – the constitutionality of the vaccination mandate – they have the same rights under the U.S. Constitution as citizens. of the fifty states. Like states, which also have their own constitutions, Puerto Ricans also enjoy protection guaranteed by the constitution of Puerto Rico. While the lawsuit alleges violations of both constitutions, of national interest, this will be how federal courts interpret the US Constitution.
The vaccination mandate in question in Rodriguez Vélez came in the form of a decree signed by Puerto Rican Governor Pedro Pierluisi on July 28, 2021. Decree 58 spanned fourteen pages, the first nine of which recited in numerous paragraphs “WAITING” for the details of the pandemic of COVID-19 and various statements from the Centers for Disease Control and Prevention and the Food and Drug Administration, as well as identifying current precedents on vaccination mandates. The mandate then ordered: “all public bodies of executive power [to] require employees who work in person, except as otherwise provided below, to receive a COVID-19 vaccine. “
Employees exempt from the mandate include people with weakened immune systems or those allergic to vaccines or with another medical condition that makes the vaccine unsafe for employees. The decree also provides for a religious exemption, but requires the employee to provide an affidavit signed by the employee and their minister attesting under penalty of perjury that they reject the vaccine on the basis of their religious beliefs.
Curiously, while the decree only provides for two exemptions from the vaccination mandate, the section titled “refusal of vaccination” allows government employees to refuse vaccines if they provide either proof of a positive COVID-19 test from all three. months, as well as documents establishing that they have recovered, or undergo weekly COVID-19 tests, within 72 hours of the start of the Monday work week. Employees exempted due to a health condition or religious belief must also submit to the weekly COVID-19 test, in the absence of proof of a COVID diagnosis within 3 months.
After the governor issued the executive decree, four employees of the executive agency filed a lawsuit, seeking a preliminary injunction prohibiting the execution of the vaccination warrant, claiming, in essence, that the warrant violated their rights. of “substantive due process”, namely their interest in liberty “in their personal autonomy, bodily integrity and medical choice”, and their “right not to undergo a medical test for a virus”.
While there are aspects of this case that make the situation in Puerto Rico unique, namely the territory’s limited medical resources for testing, the basic issues facing the court on Tuesday are the same that all courts will have to resolve to rule on the challenges. vaccination. mandates: whether there is an interest in the freedom to refuse vaccination and, if so, what standard must a state meet to justify the mandate.
Here the focus will be on the Supreme Court’s decision in Jacobson v. Massachusetts, 197 US 11 (1905). In Jacobson, the Supreme Court considered the constitutionality of a Massachusetts law that allowed local city boards of health to require vaccination of adults, with violators facing a fine of five dollars. In February 1902, the Cambridge Board of Health mandated residents to obtain the smallpox vaccine. After Henning Jacobson refused to be vaccinated, he was prosecuted and fined in the statutory amount of $ 5.00. Jacobson then challenged the constitutionality of mandatory vaccinations.
The Supreme Court in Jacobson ruled that Massachusetts had acted within its “state police power” to enact a mandatory vaccination law and that it was not for the courts to consider whether vaccination is the best way to prevent smallpox and protect public health. The Jacobson The court’s analysis included several passages important to the current issue of the constitutionality of COVID-19 warrants.
First, the Court noted that a state’s policing power extends to “reasonable regulations established directly by law that will protect public health and safety,” adding that this power can be delegated to local authorities. The Supreme Court then considered Jacobson’s argument that his constitutional right to liberty outweighed the vaccine’s mandate. The Court rejected this argument, stating that “the freedom guaranteed by the Constitution of the United States to everyone within its jurisdiction does not matter an absolute right of each person to be, at all times and in all circumstances, completely free from any constraint “.
Jacobson also considered the argument that there was some disagreement over whether the vaccine argument prevented smallpox or caused other diseases. The Supreme Court rejected this argument, noting that “the fact that the belief is not universal is not determinative, because there is hardly any belief that is accepted by everyone”. Further, “the possibility that the belief may be false, and that science may still show it to be false, is inconclusive, for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases.
This precedent puts the plaintiffs in the Puerto Rico case in a difficult position. Applicants seek to circumvent detention Jacobson, emphasizing the evolution of constitutional law since the judges rendered this decision in the early 1900s. They also point out the relatively minor consequence of the violation of the vaccination warrant, a fine of five dollars, which, even in dollars d ‘today, is of no consequence to the requirement that unvaccinated employees undergo (and pay for) weekly COVID-19 tests or, in essence, drop out. their jobs.
Here, the complainants point out that, given Puerto Rico’s limited healthcare resources, weekly testing may not even be possible. They also note that instead of requiring vaccinations, the government could allow remote working arrangements. Employees further stress that the reasons set out in the decree to justify the vaccination mandate do not make sense from a factual standpoint given the already high vaccination rates.
Tuesday’s hearing will provide insight into the correctness of those arguments, but given the Seventh Circuit Appeals Court’s refusal to stay, pending appeal, Indiana University’s vaccination mandate for students based on Jacobson, it will likely take a trip to the Supreme Court for citizens to successfully challenge a government-implemented vaccination mandate – even if there is little justification for the mandate and even when the incompetence of the State (or territory) limits the availability of COVID-19 testing.
Puerto Rico’s handling of the COVID-19 pandemic and its draconian vaccination mandates are further evidence of government incompetence, said Jorge L. Rodriguez, CEO and founder of the newly formed company. Puerto Rico Institute for Economic Freedom (“ILE”), which manages the dispute.
“The lack of institutional capacity of the government of Puerto Rico demonstrates once again how this can have a negative impact on the well-being of the people of Puerto Rico,” he told me.
In addition to the lawsuit challenging the EO requiring vaccinations for public employees, the ILE, through Advocate General Arturo Bauermeister, is pursuing the EO’s vaccination mandate for private employers. Rodriquez tells me that Puerto Rico is the only U.S. jurisdiction that has established a vaccination mandate for the private sector, with only a few cities trying to require COVID vaccines and those limited to restaurants and bars.
“Puerto Rico’s vaccine mandates, enforced through a series of endless continuous executive orders, are the most extreme policies of any U.S. jurisdiction at this point in the pandemic,” said Ilya Shapiro, vice president constitutional studies at the Cato Institute. , who advises lawyers prosecuting Puerto Rico. “It’s bizarre, because the Commonwealth is doing both better on all measures related to COVID than almost any other state or territory and has less institutional capacity for vaccination and testing.”
It might be weird, but is it constitutional? The case heard on Tuesday, because it involves the most extreme government action and is one of the most advanced litigation cases, may well be the landmark case that reaffirms or overrides Jacobson, so stay tuned.
Margot Cleveland is a senior contributor to The Federalist. Cleveland has served for almost 25 years as a permanent legal assistant to a federal appellate judge and is a former full-time faculty member and assistant instructor at the University of Notre Dame College of Commerce. The views expressed herein are those of Cleveland in a private capacity.