The U.S. government could decree that every American get vaccinated, but so far it hasn’t, and there’s no indication it will. That’s a political decision, and one not likely to be made.
Some governors are strongly encouraging residents to get vaccinated, while others are prioritizing a twisted notion of personal “freedom” over saving lives, but no governor has issued a mandatory vaccination order, and none are likely to.
Vaccination mandates are proliferating in the private sector, where the employer is king; if you don’t get vaccinated, you won’t work there. Companies probably can make that stick; so far, judges have thrown out lawsuits brought by employees (most prominently against hospital chains).
But what about this?
“Judges in Ohio recently ordered that individuals get vaccinated as part of their probation, according to The New York Times, and judges in Georgia have lessened sentences for offenders who got inoculated, WSB-TV 2 Atlanta reported.” (Note: these links may be blocked by paywalls.)
And in Illinois, a judge presiding over a custody and child support case transferred custody of an 11-year-old boy to the father and denied the mother visitation because she is unvaccinated (story here). However, the judge later allowed visitation “based on the absence of a pleading or hearing on serious endangerment” (story here).
You all know we have three independent branches of government, and their authority and responsibilities can overlap, right? Because of that, who can or can’t issue vaccination mandates is murky. Conceivably, all three branches — executive, legislative, and judicial — could under certain circumstances.
It seems to me an all-encompassing, nation- or state-wide, government-issued mandatory vaccination decree applicable to all citizens would have to be either in the form of an enacted law, or an executive acting under a proper legislative delegation of authority. I don’t see judges as having authority to issue general health regulations; that’s a legislative and executive function.
ln criminal sentencings where the court has jurisdiction over the defendant and a degree of sentencing discretion, it’s not uncommon to include coercive conditions, such as undergoing alcohol treatment to avoid doing jail time for a DUI. So it would seem that in a case before the court, a judge conceivably could make getting vaccinated a condition of probation or an incentive for a shorter sentence, based on an argument that making the individual get vaccinated as a condition of release makes the community safer. Still, it feels a little slippery, because it smacks of the judge’s personal bias in favor of vaccinations. That’s because it’s not written into the sentencing code or guidelines, and isn’t a standard sentencing practice. If all judges in the jurisdiction were doing it, it would look less so.
Turning to the Illinois case, it’s pretty clear that a judge making a child custody determination can take into consideration the child’s health and welfare, and the vaccination status of the parents is relevant to that. At present, there’s no approved vaccine for children under 12, so the argument is that because a vaccinated parent is less likely to pick up and pass along a Covid-19 infection to an unvaccinated child, the 11-year-old is safer living with his vaccinated father than with his unvaccinated mother.
Denying a parent visitation is considerably more onerous than awarding custody to the other parent, and requires a higher level of justification. Normally, a parent is denied visitation when the judge determines contact would be detrimental to the child. You would see this, for example, where a parent is doing drugs or has committed child abuse. Here, the argument would be that the mother might pick up the virus and infect the child if physical contact is allowed. This is a rational basis to deny visitation, but in this case, the judge seems to have reversed the visitation denial because the father failed to allege or show a specific risk to the child. Thus, the judge in the Illinois case appears to have handled the matter properly.
Judges should not, I think, be in the business of mandating vaccinations. When vaccination mandate cases come before them, their job is to determine whether the mandate is lawful, and to resolve such specific issues as whether it violates a union contract, an anti-discrimination law, someone’s religious freedom rights, etc. — decisions that apply to individuals and depend on the facts and context of the case. That’s what judges do, whereas legislative bodies enact broadly applicable rules, and executive branch agencies, generally speaking, enforce them.
In broadest terms, I’m leery of broad vaccination mandates coming from the courts. Legislatures and Congress clearly can do it; if it’s done by executive order, that may lead to a turf fight between the legislative and executive branches, which the courts would have to resolve (in such cases, deciding who has the overriding authority). I have no problem with judges ordering individuals to get vaccinated, given case jurisdiction, and a rational basis for the order.
Related: Speaking of turf fights, none are bigger or more dramatic those between the federal government and states, and the fight over masks in schools already is one. Now, the U.S. Department of Education is opening civil rights investigations of state bans on mask mandates “to determine whether they discriminate against students with disabilities,” The Hill reported on Monday, August 30, 2021. “With [these] investigations, the Biden administration is taking a more aggressive push against bans on mask mandates in schools,” The Hill said. Read this story here.