Across the nation, in response to the Covid-19 virus, state and local leaders have issued executive orders mandating masks, restricting movement, and requiring FDA “emergency use authorization” mRNA and DNA vectored vaccinations to engage in otherwise constitutionally protected activities. Many of the executive orders cite emergency disaster response laws enacted prior to the pandemic and roll-out of the vaccines as the basis for their authority. Non-compliance with the orders is often punishable criminally by fines and/or imprisonment, and many enforcement actions have been taken.  Likewise, dozens of lawsuits have been filed in response challenging the executive orders based on a multitude of constitutional claims.

Supporters of such executive orders rely on Jacobson v. Massachusetts, a U.S. Supreme Court decision rendered over 100 years ago during the smallpox pandemic and based largely on substantive due process under the 14th Amendment. At issue in Jacobson was a state law which authorized local boards of health to order that citizens be vaccinated under penalty of a small criminal fine.  The Court held that the state can impose “reasonable” regulations to protect public health for the “common good”, even where such regulations interfere with individual rights. In deferring to the studies conducted by the legislature regarding the vaccine’s efficacy and safety, the Court noted that the legislature had fully investigated the smallpox virus and considered opposing views on its safety prior to enacting the law. The Court emphasized that a state’s police power “must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Notably, although the smallpox vaccine was considered safe and effective at the time, the Covid-19 vaccines have diminishing efficacy, as the CDC itself has reported, and have been associated with an unusually high number of vaccine-related deaths and other adverse events, as reported to the CDC’s Vaccine Adverse Events Reporting System (VAERS).

Since Jacobson, however, the Supreme Court’s approach to Due Process and Equal Protection claims has changed so radically that it is questionable whether Jacobson is even relevant precedent now.  Not only was Jacobson rendered before the Bill of Rights were applied to the states, but the Court has since developed tiered levels of scrutiny for constitutional claims: strict scrutiny; intermediate scrutiny; and rational basis review, which affords great deference to the government. Although the deferential approach taken in Jacobson is arguably most similar to today’s rational basis test, a number of Jacobson’s claims—such as Due Process and Equal Protection, for example—are also implicated by the Covid-19 executive orders and therefore might warrant different levels of judicial scrutiny than applied in Jacobson.  Further, whereas the penalty in Jacobson was merely a small fine, many of today’s Covid-19 executive orders, in addition to imposing substantial fines, carry terms of imprisonment as possible penalties, which also suggests that a more intense level of scrutiny than Jacobson’s should be applied in such cases.  

The vaccination law in Jacobson was also authorized specifically by the state legislature and not by executive order.  However, executive orders cannot create law, nor can they assume a legislature's exclusive authority to formulate public policy. Otherwise, separation of powers principles would be violated. The constitutionality of an executive order is reviewed by examining whether it is a legitimate exercise of executive rather than legislative power and whether it is based on a specific grant of power by a legislature. Thus, since the focus of Jacobson was on a state statute and not an executive order, its relevance today is arguably even further attenuated.  This is particularly true where a Covid-19 executive order derives from a law that does not clearly grant to the executive the questioned powers being wielded for the reasons claimed. For example, in Maui, Hawaii, the Mayor issued an executive order restricting the exercise of otherwise constitutionally protected activities based on a pre-existing emergency disaster law, which does not specifically address viral outbreaks.  In such instances, a higher level of scrutiny than Jacobson’s deferential approach is also likely warranted.

In conclusion, notwithstanding the waning efficacy of the current Covid-19 vaccines and the unusually high number of vaccine-related deaths and adverse events, it is doubtful that Jacobson is even applicable today in view of the Court's tiered scrutiny approach to constitutional claims developed in the decades following Jacobson. Simply put, the constitutional rights implicated by today's Covid-19 executive orders—such as Due Process, Equal Protection, Separation of Powers, freedom of movement, freedom to worship, right to privacy, etc.—require different levels of judicial scrutiny than the deferential approach taken in in Jacobson.  

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