More than 340 million COVID-19 vaccine doses have been administered in the United States. Although in many ways that is a remarkable achievement, the fact remains that half of the total US population (including 40% of the vaccine-eligible population) is still unvaccinated. Colorado and other states have introduced various incentive programs to increase the percentage of vaccinated residents, but initial data suggests that those programs enjoyed limited success. In the meantime, the widespread prevalence of the more infectious Delta variant has caused government agencies that had removed mask requirements to reinstitute masking under certain circumstances. According to public health experts, the United States is now facing a “pandemic of the unvaccinated” and virtually every serious case of COVID-19 is preventable. That begs the question: can governments legally mandate vaccines? The answer is unambiguously yes.
The states’ general “police power” to promote public health and safety encompasses authority to mandate vaccination. Every time the Supreme Court has considered constitutional challenges to state vaccination mandates, it has held that vaccination mandates fall within the states’ police power and do not impermissibly violate a citizen’s liberty interests. All fifty states and the District of Columbia have instituted laws compelling vaccinations under specified circumstances—most notably requiring vaccination for children as a condition of attending public schools and for adult health care workers. The federal government, too, has imposed vaccination mandates under specified circumstances, including in the military and immigration contexts. Most recently, President Biden signed an executive order mandating that millions of federal employees be vaccinated for COVID-19.
Having established that it can be done lawfully, the question remains: should it? Once again, the answer is unequivocally yes. We have spent two years watching horrible scenes unfold in Colorado, in other states, and across the globe. Overcrowded ICUs unable to care for sick patients. Otherwise healthy people on ventilators. Millions of deaths that wouldn’t have happened but for the pandemic. The collateral consequences have been awful as well. An entire generation of children has missed substantial periods of schooling. Businesses have shuttered. Countless personal and professional lives have been upended. The vaccines represent a safe and certain means of putting all that behind us. We expect governments to provide for the general welfare. Right now, there is no better or more immediate way to do that than to mandate COVID-19 vaccination as broadly as possible.