George Mason
Law Review

Vacci–Nation: A Look at Federal Authority to Mandate Vaccines

Carly L. Hviding
Volume 29
Issue 4

Introduction

The novel coronavirus pandemic led to extraordinary shutdowns and restrictions across the United States in 2020.1See Lauren Bauer, Kristen Broady, Wendy Edelberg & Jimmy O’Donnell, Ten Facts About COVID‑19 and the U.S. Economy, Brookings (Sept. 17, 2020), https://perma.cc/C6PG-ZA6G. To combat the spread of the virus, COVID‑19 vaccines were hailed as the primary tool for a return to normalcy and the reopening of the economy.2See Alvin Powell, Fauci Says Herd Immunity Possible By Fall, ‘Normality’ By End of 2021, Harv. Gazette (Dec. 10, 2020), https://perma.cc/2HZG-4RG8. Although vaccines are safe and effective, many Americans were hesitant to get vaccinated, and voluntary vaccination rates were lower than expected.3See Arnav Shah, Shanoor Seervai & Eric C. Schneider, How Can the U.S. Catch Up with Other Countries on COVID‑19 Vaccination?, Commonwealth Fund (Dec. 15, 2021),
https://perma.cc/6PEW-GMQZ.
At first, the federal government encouraged vaccine uptake through funding and educational campaigns.4See Kavya Sekar, Cong. Rsch. Serv., IN11556, Domestic Funding for COVID‑19 Vaccines: An Overview (2021). When the nationwide vaccination rate was not meeting the government’s goals, the federal government explored ways to mandate COVID‑19 vaccination for certain activities, but never imposed a full-blown nationwide vaccine mandate.5See Press Release, White House, Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies (Nov. 4, 2021), https://perma.cc/DC8S-HQNT (announcing a vaccination or testing program for certain employers and a vaccine requirement for health care workers). The response to COVID‑19 raised questions about—and challenges to—the federal government’s authority to respond to public health crises.6See, e.g., Efthimios Parasidis, COVID‑19 Vaccine Mandates at the Supreme Court: Scope and Limits of Federal Authority, Health Aff’s. (Mar. 8, 2022), https://perma.cc/CYD9-HHEV. However, the courts did not address the full scope of a rarely used statute granting the federal government “broad, flexible power[]” to prevent the spread of communicable disease.7See Louisiana v. Mathews, 427 F. Supp. 174, 176 (E.D. La. 1977). It remains unclear if the federal government has statutory authority to implement a nationwide vaccine mandate.

Vaccines are a public health tool that have historically been mandated by the states, not the federal government.8See Jacobson v. Massachusetts, 197 U.S. 11, 38–39 (1905) (holding that a state vaccination program had a real and substantial relation to the protection of the public health and safety); Zucht v. King, 260 U.S. 174, 175–77 (1922) (holding that a state public school vaccination requirement was a valid exercise of police power); Mary Holland, Compulsory Vaccination, the Constitution, and the Hepatitis B Mandate for Infants and Young Children, 12 Yale J. Health Pol’y L. & Ethics 39, 52 (2012). Nevertheless, section 361 of the Public Health Service Act (“section 361”) authorizes the federal government to use necessary measures to prevent the spread of contagious disease.9See 42 U.S.C. § 264. Specifically, the statute authorizes the Center for Disease Control (“CDC”)

to make and enforce such regulations as in [its] judgment are necessary 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. For purposes of carrying out and enforcing such regulations, the [CDC] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.1042 U.S.C. § 264(a).

Although the federal government has never used section 361 to mandate vaccination11See Wen W. Shen, Cong. Rsch. Serv., LSB10300, An Overview of State and Federal Authority to Impose Vaccination Requirements 3 (2019) [hereinafter Authority to Impose Vaccination Requirements] (stating that, “[e]xcept for certain populations, including immigrants seeking permanent residence in the United States and military personnel, the federal government has not” invoked its authority to impose vaccination mandates). and the authority to do so is not expressly provided in the statute,1242 U.S.C. § 264. there is speculation that the federal government could use section 361 to impose a vaccine mandate.13Authority to Impose Vaccination Requirements, supra note 11, at 3 (stating that section 361 “could conceivably be used to mandate vaccinations”); Wen W. Shen, Cong. Rsch. Serv., LSB10530, Could the President or Congress Enact a Nationwide Mask Mandate? 2 (2020) [hereinafter Nationwide Mask Mandate] (stating that it is difficult to predict how courts would read the scope of the authority granted in section 361); John Wilkerson, Govt. Could Prepare in Advance COVID Vaccine Message, Legal Strategy, Inside Health Reform (June 24, 2020) (stating that the federal government could use section 361 to mandate vaccinations). But see Y. Tony Yang & Dorit Rubinstein Reiss, A Federal COVID‑19 Vaccine Mandate: Dubious Legality, Faulty Policy, The Hill(July 23, 2020), https://perma.cc/BZ7P-TDCR (stating that using section 361 to federally mandate a vaccine may not hold up in court); Richard Hughes IV, Vaccine Exemptions and The Federal Government’s Role, Health Aff. (2019), https://perma.cc/UWW2-BPK8 (stating that section 361’s preemption clause limits federal health officials’ ability to circumvent state-level exemption laws). There is currently no authoritative interpretation of the scope of the broad powers in section 361 in this context, and the text remains ambiguous.

This Comment sets aside the policy question of whether the federal government should mandate vaccination during a public health crisis and the political question of whether the public would support a universal vaccine mandate and focuses on whether the federal government could mandate a universal vaccine using section 361.

This Comment analyzes section 361 and proposes that the CDC14The Department of Health and Human Services delegated authority under section 361 to the CDC. Reorganization Plan No. 3 of 1966, 80 Stat. 1610 (1966); 42 C.F.R. § 70.2 (2022). Explanations of regulations issued under section 361 refer to the discretion of “HHS/CDC.” See Control of Communicable Diseases; Foreign Quarantine: Suspension of the Right to Introduce and Prohibition of Introduction of Persons into the United States from Designated Foreign Countries or Places for Public Health Purposes, 85 Fed. Reg. 56,424, 56,424, 56,426 (Oct. 13, 2020) (to be codified at 42 C.F.R. pt. 71). For purposes of this Comment, the author assumes an interpretative rule of this nature would be issued or recommended by the CDC. should issue an interpretive rule to resolve the ambiguous text to include only conventional public health measures—including vaccination mandates under narrow conditions.15See Staff of H. Comm. on Interstate and Foreign Commerce, 78th Cong., Consolidation and Revision of Laws Relating to the Public Health Service 24 (Comm. Print 1944) (noting that the authority granted in section 361 does more than authorize the use of quarantine, but also sanctions the use of conventional public health measures). Under this interpretive guidance, the CDC should require that any vaccination mandated under section 361 authority be evaluated under a framework to prevent the federal government from implementing unnecessary and harmful vaccine mandates.

Part I provides an overview of the background of vaccine mandates in the United States, explores the history of section 361 of the Public Health Service Act, and identifies an unresolved ambiguity in the statute. Part II argues that “other measures” should be read to include conventional public health measures (including vaccine mandates), and then proposes that the CDC resolve the ambiguity in section 361 by issuing an interpretive rule with a framework for determining when federal vaccine mandates are a reasonable and necessary measure. Part III illustrates the application of the proposed framework through test cases.

I.     Background

The authority to mandate vaccines has historically been viewed as a state police power. In the United States federal system, police powers reserved to the states “include the authority to make laws for public health and safety.”16Ilya Shapiro, State Police Powers and the Constitution, Cato Institute (Sept. 15, 2020), https://perma.cc/7U75-EPLY. However, patchwork policy frameworks which vary state-by-state may reduce how effective the states are at preventing the spread of communicable disease.17See, e.g., U.S. Marine-Hospital Service, Annual Report of the Supervising Surgeon-General of the Marine-Hospital Service of the United States for the Fiscal Year 1883, at 284 (1883) (describing the effects of shotgun quarantines during the yellow fever epidemic); see also Polly J. Price, Do State Lines Make Public Health Emergencies Worse? Federal Versus State Control of Quarantine, 67 Emory L.J. 491, 539 (2018) (“Only the federal government could prevent chaos and suffering when ‘[m]ob law seem[ed] likely to rule’ in any given state.” (internal citations omitted)). For a modern example, consider the recent push for mask mandates during the COVID‑19 pandemic. Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases, urged state leaders to “be as forceful as possible in getting [their] citizenry to wear masks” to prevent the spread of COVID‑19 in July 2020. Marisa Schultz, Fauci Urges Governments to Be ‘As Forceful As Possible’ On Mask Rules, Fox News (July 17, 2020), https://perma.cc/2T6A-88YL. One month later, only thirty-four of fifty states required people to wear face coverings in public to curb the spread of COVID‑19. Richard Dahl, State Mask Laws: A Summary, FindLaw (Aug. 21, 2020), https://perma.cc/C744-DL38. As the pandemic went on, inconsistent state and federal guidance on masks made the public question the effectiveness of mask-wearing, undermining trust in public health agencies and reducing the effectiveness of public health guidance and policies. See Patrick Monaghan, Why Wearing a Mask Can Be Controversial, The Nexus (Mar. 18, 2021), https://perma.cc/TQ9F-UJQJ. Ineffective responses to public health crises may have devastating health and economic effects across state lines, necessitating a federal response.18See Price, supra note 17, at 495.

In 1944, Congress enacted section 361 to authorize the CDC to “make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases” among the states.1942 U.S.C. § 264(a); see alsoPrice, supra note 17, at 528–29. Moreover, section 361 authorizes the CDC to provide for “other measures” judged to be necessary to carry out and enforce the regulations.2042 U.S.C. § 264(a). The federal government has rarely invoked section 361 powers to prevent the spread of communicable disease outside of the quarantine and isolation authority expressly included in the statute,21Authority to Impose Vaccination Requirements, supra note 11, at 3. and experts disagree over what the phrase “other measures” means and includes.22See Authority to Impose Vaccination Requirements, supranote 11, at 3 (stating that section 361 “could conceivably be used to mandate vaccinations”); Nationwide Mask Mandate, supra note 13, at 2 (stating it is difficult to predict how courts would read the scope of the authority granted in section 361); Wilkerson, supra note 13 (stating that the federal government could use section 361 to mandate vaccinations). But see Yang & Rubinstein Reiss, supra note 13 (stating that using section 361 to federally mandate a vaccine may not hold up in court); Hughes, supra note 13 (stating that section 361’s preemption clause limits federal health officials’ ability to circumvent state-level exemption laws). Without historical or legal precedent for defining the scope and limits of “other measures,” there is no obvious answer as to whether federally mandated vaccinations fall within the scope of section 361.23See Authority to Impose Vaccination Requirements, supra note 11, at 3 (stating that section 361 “could conceivably be used to mandate vaccinations”); Nationwide Mask Mandate, supra note 13, at 2 (stating it is difficult to predict how courts would read the scope of the authority granted in section 361).

Vaccinations are one of the conventional public health measures that both the state and federal governments use to control infectious disease.24See Authority to Impose Vaccination Requirements, supra note 11, at 2; Celebrating 50 Years of Global Immunization Success at CDC, CDC (2016), https://perma.cc/5ZWZ-A4GY. Historically, vaccine mandates have been implemented by the states, while the federal government has limited its involvement “to promoting, facilitating, or monitoring the use and/or manufacture of vaccines.”25Authority to Impose Vaccination Requirements, supra note 11, at 3; see also CDC, supra note 24. Some scholars argue that the lack of precedent for federally mandated vaccinations is an indication that vaccinations are not included in “other measures.”26See Authority to Impose Vaccination Requirements, supra note 11, at 2 (stating that the Tenth Amendment restrains the federal government from commandeering public health regulations); see also Yang & Rubinstein Reiss, supra note 13. Conversely, others argue that just because the United States has not experienced an emergency situation where an available vaccine could prevent or stop a deadly epidemic does not change whether the statutory authority exists.27Price, supra note 17, at 539.

A.     Vaccines as Public Health Measures

Vaccines are one of the most effective methods of disease control because they successfully reduce mortality caused by communicable diseases.28Making the Vaccine Decision: Addressing Common Concerns, CDC (2022), https://perma.cc/FJQ3-7QN6. Vaccines are a popular, conventional strategy deployed by public health officials because they reduce rates of infection.29FE Andre, R Booy, HL Bock, J Clemens, SK Datta, TJ John, BW Lee, S Lolekha, H Peltola, TA Ruff, M Santosham & HJ Schmitt, Vaccination Greatly Reduces Disease, Disability, Death, and Inequity Worldwide, 86 Bull. World Health Org. 140, 141–42 (2008). Today, all fifty states require vaccinations for school attendance,30See School Vaccination Requirements and Exemptions, CDC (2017),
https://perma.cc/72FF-3S96; State Vaccination Requirements, CDC (2016),
https://perma.cc/9ZD7-6SSL.
and the federal government encourages widespread use of certain vaccinations.31SeeChild and Adolescent Immunization Schedule, CDC (2022), https://perma.cc/MHS5-7DYH. Because the federal government has never imposed mandatory vaccinations on the general public, the Supreme Court has never ruled on whether the federal government has the statutory power to implement compulsory vaccination laws to provide for the public health.32See Authority to Impose Vaccination Requirements, supra note 11, at 3.

  1. Early Vaccine Mandates

Public health officials use vaccines as a conventional public health measure to prevent the spread of communicable disease.33See Steve P. Calandrillo, Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children?, 37 U. Mich. J.L. Reform 353, 438–39 (2004). Vaccines work by introducing molecules from a disease-causing organism into the body to stimulate the immune system and trigger an immune response before illness occurs, How Vaccines Work, PublicHealth (2022), https://perma.cc/92W4-4799, or by introducing a spike protein into the body (known as an mRNA vaccine). Understanding mRNA COVID‑19 Vaccines, CDC (2022), https://perma.cc/QVT5-PZBJ. Widespread vaccination has more than just individual benefit: since the nineteenth century, jurisdictions in the United States have implemented compulsory vaccination laws to create what is known as “herd immunity.”34Kellen Russoniello, The End of Jacobson’s Spread: Five Arguments Why an Anti-Intoxicant Vaccine Would Be Unconstitutional, 43 Am. J.L. & Med. 57, 75 (2017). Herd immunity can be achieved by vaccinating a threshold percentage of the population to prevent the spread of disease—even if some individuals are not immunized—because the disease cannot be easily transmitted.35See Holland, supra note 8, at 43. The threshold percentage required to achieve herd immunity varies by disease. Id. Vaccinated people are less likely to become infected,36More precisely, vaccines make it less likely that individuals will become infected. See How Do Vaccines Work?, World Health Org. (2020), https://perma.cc/Z7ES-A2HV. In other instances, vaccines may reduce the severity of illness in people who get vaccinated but still get sick. See Vaccine Effectiveness: How Well Do Flu Vaccines Work?, CDC (2020),https://perma.cc/8534-5GZT. and these immunized individuals “form a barrier,” preventing the spread of disease and providing protection for non-immunized, or otherwise vulnerable, people.37Holland, supra note 8, at 43; see Russoniello,supra note 34, at 75. Vaccines are one of the most important public heath tools because they are effective at reducing the spread of disease and improving mortality rates.38See Calandrillo, supra note 33, at 438.

The leading cause of death in the United States in the early twentieth century was infectious disease.39See Holland, supra note 8, at 42–43. At the time, smallpox was one of the few diseases with an available vaccine.40See All Timelines Overview (2020), History Of Vaccines, https://perma.cc/VT3P-9HK7 (noting that the development of the smallpox vaccine began in the 1790s, but the next substantial development in human disease vaccination was not until the rabies vaccine in 1885). In an effort to curb the spread of smallpox and improve mortality rates, voluntary vaccination became a widespread practice but some states and localities took the extra step to mandate vaccination against smallpox.41See Holland, supra note 8, at 43. By 1905, eleven states required smallpox vaccinations.42Id. In the states with vaccine mandates, individuals who refused vaccinations faced penalties such as fines and exclusion from school.43Id. No state’s former or current compulsory vaccination laws force vaccination through physical restraint and administration on individuals who refuse.44Id.An argument against government-imposed compulsory vaccination is that such programs violate individual liberty interests. The Court balances liberty interests against the common good of preventing the spread of infectious disease when considering the constitutionality of a vaccine mandate. As Justice John Marshall Harlan noted, “the liberty secured by the Constitution . . . does not import an absolute right in each person to be . . . wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.” Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905). Within these restraints, however, Justice Harlan acknowledged an exception for vaccine mandates that are “arbitrary” or “unreasonable.” Id. at 28. Forcing vaccination on individuals through physical restraint and administration would likely not be upheld by the Court, as the forcible administration would not—and should not—be considered a reasonable regulation. See id. at 29–30.

Into the twentieth century, the increase in states implementing compulsory vaccination led to judicial decisions about states’ powers to impose penalties on unvaccinated individuals.45See, e.g., Wong Wai v. Williamson, 103 F. 1, 2–3 (N.D. Cal. 1900); State ex rel. Cox v. Bd. of Educ. of Salt Lake City, 60 P. 1013, 1013–14 (Utah 1900); State ex rel. Freeman v. Zimmerman, 90 N.W. 783, 783 (Minn. 1902); Viemeister v. White, 84 N.Y.S. 712, 713 (App. Div. 1903). Some courts upheld existing mandates so long as they did not force vaccination or violate the Equal Protection Clause.46See Wong Wai, 103 F. 1 at 9–10; Holland, supra note 8, at 44. Likewise, courts typically upheld the practice of excluding unvaccinated children from public school to prevent the spread of communicable disease.47See Holland, supra note 8, at 43–44. The United States Supreme Court did not rule on state-imposed compulsory vaccination laws until 1905, when the Court upheld a state vaccination mandate as a reasonable protection of public health and safety.48See Jacobson v. Massachusetts, 197 U.S. 11, 35 (1905). This 1905 ruling remains the law today.49See Authority to Impose Vaccination Requirements, supra note 11, at 1–2.

  1. Compulsory Vaccination as a State Police Power

In 1905, the Supreme Court issued a landmark decision upholding state vaccination mandates.50See Jacobson, 197 U.S. at 38–39; Russoniello, supra note 34, at 58. In Jacobson v. Massachusetts,51197 U.S. 11 (1905). the Board of Health of Cambridge, Massachusetts adopted a regulation requiring smallpox vaccination.52Id. at 12. A resident—Jacobson—refused vaccination and challenged the law by arguing that the vaccine mandate violated his Fourteenth Amendment rights.53Id. at 13–14. The Court held that the State of Massachusetts and the City of Cambridge were acting within their vested police power to protect public health and public safety by requiring the smallpox vaccination.54Id. at 35–39. The Court found that a state may enact reasonable regulations to protect the good of all its citizens, not just an individual.55Id. at 26. Specifically, the Court stated that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.”56Id.

Governing the use of police powers, Jacobson discusses several factors to assess state-imposed vaccination requirements: (1) police powers must be based on “necessit[y] of the case” and could not be exercised in “an arbitrary, unreasonable manner” or “go so far beyond what was reasonably required for the safety of the public”; (2) there must be a reasonable relationship between the public health intervention and the goal; (3) the public health intervention may not be “arbitrary and oppressive”; and (4) the public health intervention should not pose a health risk to its subject.57Jacobson, 197 U.S. at 26, 28, 31, 36–37; see James G. Hodge, Jr. & Lawrence O. Gostin, School Vaccination Requirements: Historical, Social, and Legal Perspectives, 90 Ky. L.J. 831, 856–857 (2002). Jacobson continues to stand for the proposition that states can require vaccination, but that this power is not without limits.58See Jacobson, 197 U.S. at 28; see Hodge & Gostin, supra note 57, at 857. The Court settled that compulsory vaccination is within a state’s police power, and states and local governments may determine under what conditions health regulations go into effect so long as they are reasonable.59See Jacobson, 197 U.S. at 26; see also Adams v. City of Milwaukee, 228 U.S. 572, 583 (1913) (reaffirming that while state police powers to regulate public health are broad, the exercise of the state police power must be necessary and reasonable). Jacobson remains good law, and the Court has not revisited state-imposed compulsory vaccination in any significant way.60See Zucht v. King, 260 U.S. 174, 176–77 (1922); Authority to Impose Vaccination Requirements, supra note 11, at 2. However, the Court has recently relied on Jacobson to uphold the broad state police power to protect public health. See S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613–14 (2020) (Roberts, C.J., concurring) (reaffirming the Jacobson principle that the Constitution entrusts the states to guard and protect the public health).

  1. Vaccine Mandates Today

State and federal governments share an interest in protecting the public health through vaccination.61See Authority to Impose Vaccination Requirements, supra note 11, at 1. States have the general police power to require mandatory vaccinations, and the federal government supports the development and promotion of vaccination against infectious disease to lower rates of vaccine-preventable diseases.62See Jacobson, 197 U.S. at 1–2. The federal government traditionally limits its involvement with vaccinations to “promoting, facilitating, or monitoring the use and/or manufacture of vaccines.”63Id. at 3. However, Congress has granted the CDC “broad, flexible powers” to prevent the spread of contagious disease using public health measures through the Public Health Service Act.64Louisiana v. Mathews, 427 F. Supp. 174, 176 (E.D. La. 1977) (upholding a ban on the sale of turtles under section 361 to prevent the spread of communicable disease such as salmonella).

B.     The Public Health Service Act

The leading cause of death in the nineteenth and twentieth centuries was infectious disease,65See CDC, Achievements in Public Health, 1900-1999: Control of Infectious Diseases, 48 Morbidity & Mortality Wkly. Rep. 621 (1999), https://perma.cc/9XE2-ANRC; Holland, supra note 8, at 42. and the federal government enacted piecemeal laws to promote public health and respond to disease outbreaks.66See Lynne Page Snyder, Passage and Significance of the 1944 Public Health Service Act, 109 Pub. Health Reps. 721, 721 (1994) (noting that the federal government implemented new programs including those to control malaria, typhus, and sanitation). By the 1940s, the disorganized federal public health laws were in need of consolidation.67See id. at 721–22. Congress updated and organized existing public health laws into the Public Health Service Act of 1944.68See id. Today, section 361 of the Public Health Service Act authorizes the CDC to issue regulations to control communicable diseases.6942 U.S.C. § 264.

  1. Responding to Disease Outbreaks

In the nineteenth century, states called on the federal government for help after failing to control the spread of deadly and contagious yellow fever.70See Price, supra note 17, at 531. No vaccine was available to combat the disease’s spread, and yellow fever had devastating public health and economic effects.71See id. Individual state governments made efforts to gain control over the introduction and spread of the infectious and devastating disease by restricting travel in and out of their respective states.72See id. at 530. Without the centralized public health infrastructure and mechanisms for disease control that exist today, yellow fever returned year after year, ravishing communities and killing thousands.73See Polly J. Price, Epidemics, Outsiders, and Local Protection: Federalist Theater in the Era of the Shotgun Quarantine, 19 U. Pa. J. Const. L. 369, 374–75 (2016) (comprehensively discussing shotgun quarantines).

State and local governments implemented what became known as “shotgun quarantines,” a system deriving its name from the armed law enforcement officers and local volunteers who blocked roadways and stopped trains entering states or localities to prevent the spread of yellow fever.74See Price, supra note 17, at 530. Shotgun quarantines were supposed to function as a geographic barrier against individuals traveling from states experiencing yellow fever outbreaks.75See id. However, the shotgun quarantines were unsuccessful, and states struggled to control local quarantining measures.76See id. at 531. There was little coordination among states and between states and localities.77See id. This lack of coordination made quarantines ineffective at preventing the spread of yellow fever and devastated the flow of commerce.78See id. Eventually, state leaders turned to Congress to ask the federal government to intervene.79See id.

Yellow fever epidemics pushed Congress to establish federal authority to preempt or nullify a state quarantine in emergency situations.80See Price, supra note 17, at 539. Supporters of federal intervention justified the action under the federal government’s “right to regulate commerce and to protect the country from foreign ‘invasions.’”81Price, supra note 73, at 403. Others, however, viewed federal intervention as a violation of states’ rights.82Id. The Supreme Court weighed in on the debate over congressional action on measures of quarantine in 1886.83Morgan’s S.S. Co. v. La. Bd. of Health, 118 U.S. 455, 467 (1886). The Court upheld a state quarantine law challenged in Louisiana, and indicated that the Commerce Clause may authorize the federal government to preempt state quarantine law, and even provide for “a general system of quarantine.”84Id. at 464.

In response to the ongoing trouble with disease control and ineffective state quarantine measures, Congress passed legislation to prevent the introduction and spread of contagious diseases in 1890.85See Price, supra note 17, at 528. The legislation was known as the Epidemic Diseases Act, and it was in place until the Public Health Service Act was passed in 1944.86Id. The Epidemic Diseases Act was comprehensive beyond just quarantine authority.87See Epidemic Diseases Act, ch. 51, 26 Stat. 31 (1890). Indeed, it granted the federal government the authority to intervene and preempt state law, using any measures of disease control and prevention available.88Id. Importantly, the Epidemic Diseases Act contained the following provision:

That whenever it shall be made to appear . . . [that] yellow-fever, small-pox, or plague exists in any State or Territory . . . and that there is danger of the spread of such disease into other States [or] Territories . . . [the President] is hereby authorized to cause the Secretary of the Treasury to promulgate such rules and regulations as in his judgment may be necessary to prevent the spread of such disease . . . and to employ such inspectors and other persons as may be necessary to execute such regulations to prevent the spread of such disease.89Id.

This section of the Epidemic Diseases Act is the predecessor language of section 361 of the Public Health Service Act that is still in effect today.90Price, supra note 17, at 528–29.

  1. Consolidating Public Health Laws

Between 1940 and 1945, World War II and the New Deal led to a spike in public health laws and programs.91Snyder, supra note 66, at 721 (noting that the federal government implemented new programs including those to control malaria, typhus, and sanitation). The rise in the number of public health programs, combined with the lack of organization and structure among federal health laws, made the public health system confusing and difficult to regulate.92See 90 Cong. Rec. 6486 (1944); H.R. Rep. No. 78-1364, at 1 (1944) (“Passed at different times, these provisions of law have generally neither expressly repealed nor expressly amended their predecessors. . . . Couched in different terms, frequently providing different procedures, they have led to serious inconsistencies and ambiguities . . . .”); Snyder, supra note 66, at 721. In 1944, Congress sought to fix the lack of structure by consolidating existing health laws and programs through the Public Health Service Act,93Snyder, supra note 66, at 721. which revised and modernized the structure of the Public Health Service.94Public Health Service Act, Pub. L. No. 78-410, 58 Stat. 682 (1944). The bill was relatively uncontroversial and passed in both the House and the Senate with little debate.95See 90 Cong. Rec. 6486, 6500 (1944).

Although the Public Health Service Act was lengthy, it created few new laws.96Snyder, supra note 66, at 721–22 (noting that the goals of the Public Health Service Act were to consolidate federal health activities and to tighten up medical bureaucracy). The Epidemic Diseases Act was among the laws consolidated in the Public Health Service Act.97See Public Health Service Act, Pub. L. No. 78-410, 58 Stat. 682 (1944); Price, supra note 17, at 528–29. The disease-prevention language was incorporated into section 361,98The full text of section 361, codified as amended at 42 U.S.C. § 264, currently reads:

Regulations to Control Communicable Disease

(a) Promulgation and enforcement by Surgeon General. The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into any other States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

(b) Apprehension, detention, or conditional release of individuals. Regulations prescribed under this section shall not provide for the apprehension, detention, or conditional release of individuals except for the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive orders of the President upon the recommendation of the Secretary, in consultation with the Surgeon General[].

(c) Application of regulations to persons entering from foreign countries. Except as provided in subsection (d), regulations prescribed under this section, insofar as they provide for the apprehension, detention, examination, or conditional release of individuals, shall be applicable only to individuals coming into a State or possession from a foreign country or a possession.

(d) Apprehension and examination of persons reasonably believed to be infected.

(1) Regulations prescribed under this section may provide for the apprehension and examination of any individual reasonably believed to be infected with a communicable disease in a qualifying stage and (A) to be moving or about to move from a State to another State; or (B) to be a probable source of infection to individuals who, while infected with such disease in a qualifying stage, will be moving from a State to another State. Such regulations may provide that if upon examination any such individual is found to be infected, he may be detained for such time and in such manner as may be reasonably necessary. For purposes of this subsection, the term “State” includes, in addition to the several States, only the District of Columbia.

(2) For purposes of this subsection, the term “qualifying stage”, with respect to a communicable disease, means that such disease—

(A) Is in a communicable stage; or

(B) Is in a precommunicable stage, if the disease would be likely to cause a public health emergency if transmitted to other individuals.

(e) Preemption. Nothing in this section or section 266 of this title, or the regulations promulgated under such sections, may be construed as superseding any provision under State law (including regulations and including provisions established by political subdivisions of States), except to the extent that such a provision conflicts with an exercise of Federal authority under this section or section 266 of this title. and while the language remained generally the same between 1890 and 1944, there were some notable changes.99Compare Epidemic Diseases Act, ch. 51, 26 Stat. 31 (1890) (authorizing the federal government to issue regulations to prevent the spread of specific diseases), with 42 U.S.C. § 264(a) (granting the federal government more discretion in which diseases to regulate).

The 1944 language updated the section to remove some of the limitations included in the predecessor statute.100H.R. Rep.No 78-1364, at 24 (1944). The updated statute also made it easier for federal health authorities to regulate quarantine and inspections regardless of state law.101Id. at 24–25. Importantly, the modernized statute sanctions the CDC to use conventional public health measures to control the spread of communicable disease through “other measures.”102Id. at 24. Section 361(a) grants regulatory authority to the Surgeon General, subject to approval of the HHS Secretary, but due to administrative reorganizations, the statute is now read to refer to the Secretary directly, who delegates authority to the CDC Director and Food and Drug Administration Administrator. Reorganization Plan No. 3 of 1966, 80 Stat. 1610 (1966); 42 C.F.R. § 70.2 (2020); see also Who Has the Authority to Enforce Isolation and Quarantine Because of Communicable Disease?, HHS: Pub. Health & Safety FAQ, https://perma.cc/K36N-C8JD.

Section 361 of the Public Health Service Act remains the source of the federal government’s “broad” and “flexible” powers to control communicable disease among the states.103See Louisiana v. Mathews, 427 F. Supp. 174, 176 (E.D. La. 1977). Section 361 was amended sparingly and non-substantively from its enactment in 1944 until 2002.104See Wen Shen, Cong. Rsch. Serv., R46758, Scope of CDC Authority Under Section 361 of the Public Health Service Act 4–7 (2021) (“Other than certain amendments made in 2002 . . . section 361 has largely remained the same as initially enacted.”).

  1. Amending Section 361

Section 361 went largely unchanged from its passage until new threats of bioterrorism required Congress to revisit public health laws in the early 2000s.105See id. at 11. The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (“Bioterrorism Response Act”) substantively amended section 361 by adding a preemption clause.106Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. No. 107-188, § 142(c), 116 Stat. 594; 42 U.S.C. § 264(e) (“Nothing in this section or section 266 of this title, or the regulations promulgated under such sections, may be construed as superseding any provision under State law (including regulations and including provisions established by political subdivisions of States), except to the extent that such a provision conflicts with an exercise of Federal authority under this section or section 266 of this title.”). The amendment permits federal preemption only where a state law conflicts with a federal action authorized under section 361 or 363.10742 U.S.C. § 264(e). Scholars speculate that the clause was included as “a political trade-off for . . . potential impingement of state authority resulting from other provisions in the 2002 Bioterrorism Response Act.”108Price, supra note 17, at 519. The legislative history does not provide any additional insight into the reason for the addition of the preemption clause.109Price, supra note 17, at 518. The author conducted an independent review of the legislative history and news coverage of the Bioterrorism Response Act and confirmed these findings.

The preemption clause cross-references section 363, titled “Special Powers in Time of War,” which expands federal authority to quarantine individuals believed to be at risk of spreading contagious disease during times of war.110Codified instead as “Special Quarantine Powers in Time of War” at 42 U.S.C. § 266. This cross-reference may be important to this Comment’s analysis regarding the scope of section 361 because it provides additional context for construing “other measures,” and determining which public health measures are authorized by the statute.111See 42 U.S.C. § 264. This context may impact how “other measures” is construed, and whether it can reasonably be interpreted to include vaccinations, or if it should be read more narrowly.112Scholarship on this topic is limited. While scholars have explored the contours of state vaccine mandates, quarantine measures, and other sections of the Public Health Service Act, there is no definitive answer for whether a general vaccine mandate would fit into the scope of “other measures” provided for in section 361. See Christopher T. Robertson, Vaccines and Airline Travel: A Federal Role to Protect the Public Health, 42 Am. J.L. & Med. 543, 566 (2016) (considering whether the CDC has authority under section 361 “to require vaccinations as a condition of airline travel”); Lindsay F. Wiley, CDC’s Boundary-Pushing Eviction Freeze, Am. Const. Soc’y (Sept. 3, 2020), https://perma.cc/DW8S-FD6P (noting that “[t]he most likely source of authority for federal executive action to mandate and support social distancing and face covering is section 361(a) of the Public Health Service Act”).

The preemption clause sets additional boundaries for the scope of federal authority in section 361.11342 U.S.C. § 264(e); see also Hughes, supra note 13 (stating that section 361’s preemption clause limits federal health officials’ ability to circumvent state-level exemption laws). However, the preemption clause provides that federal preemption is permissible under section 361 anytime a state provision “conflicts with an exercise of Federal authority under this section.”11442 U.S.C. § 264(e). The effect of the clause is dependent on the interpretation of the express powers granted in section 361, including the authority to take “other measures . . . [as] may be necessary” to prevent the spread of disease.115Id. § 264(a)–(b) (expressly providing for inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles, and upon executive order of the President, apprehension of individuals, detention of individuals, and conditional release of individuals). The scope of how “other measures” is defined impacts whether a regulation issued pursuant to section 361 could preempt state law.116See id.§ 264(e).

Section 361 provides the federal government with broad authority to make and enforce regulations to control infectious disease.117See id. § 264(a); Louisiana v. Mathews, 427 F. Supp. 174, 176 (E.D. La. 1977). While the statute also expressly lists some of the exercises of power authorized under the section, Congress did not define the scope of “other measures” in section 361.118See 42 U.S.C. § 264(a). If the federal government were to use section 361 to mandate vaccination, vaccine mandates would have to fall within the undefined scope of “other measures” to be a valid exercise of authority under the statute and to preempt conflicting state law.119See id. § 264(a)–(e).

C.     Section 361 and Federal Vaccine Mandates During COVID‑19

The COVID‑19 pandemic generated widespread response at the state and federal level to curb the spread of disease. Although protecting the public health historically falls within the police powers reserved to the states, the federal government attempted to regulate in this area and set national pandemic response policies. Of particular relevance to this discussion, the CDC used section 361 to implement a nationwide moratorium on most evictions for nonpayment of rent to prevent the spread of COVID‑19,120Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID‑19, 85 Fed. Reg. 55,292 (Sept. 4, 2020). and the Occupational Safety and Health Administration (“OSHA”) used the Occupational Safety and Health Act (“OSH Act”) to mandate employers with at least 100 employees to require employees to get vaccinated or undergo regular testing for COVID‑19 and wear face coverings at work (the “vaccine-or-test mandate”).121COVID‑19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified as 29 C.F.R. §§ 1910, 1915, 1917, 1918, 1926, and 1928). In addition to the OSHA mandate, the federal government issued a rule requiring certain healthcare workers to be vaccinated against COVID‑19. Medicare and Medicaid Programs; Omnibus COVID‑19 Health Care Staff Vaccination, 86 Fed. Reg. 61,555 (Nov. 5, 2021) (to be codified as 42 C.F.R. §§ 416, 418, 441, 460, 482, 483, 484, 486, 491, and 494). The healthcare worker vaccine mandate was later upheld by the Supreme Court. Biden v. Missouri, 142 S. Ct. 647, 653 (2022). The eviction moratorium and the OSHA vaccine-or-test mandate were quickly challenged and blocked by the Supreme Court.122See Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489–90 (2021) (per curiam) (striking down the eviction moratorium); NFIB v. U.S. Dep’t of Lab., 142 S. Ct. 661, 666–67 (2022) (per curiam); see also 87 Fed. Reg. 3928 (Jan. 26, 2022) (to be codified as 29 C.F.R. § 1910) (withdrawing the OSHA vaccine or testing emergency temporary standard). These laws and the courts’ interpretations of them provide additional context for how vaccine mandates could fit into the powers granted in section 361.

  1. The Eviction Moratorium

Scholars have criticized reading “other measures” in section 361 in such a broad way that it allows the CDC to regulate activities outside the scope of conventional public health measures.123See GianCarlo Canaparo, Amy Swearer & Zack Smith, CDC’s Unlawful, Unconstitutional Moratorium on Evictions, Heritage Found. (Sep. 15, 2020), https://perma.cc/5UGU-AWCE; Josh Blackman, The Statutory Authority for the Nationwide Eviction Moratorium, Volokh Conspiracy (Sept. 1, 2020, 11:57 PM), https://perma.cc/92VP-XFWP. Before the COVID‑19 pandemic, most regulations issued by the CDC under section 361 authority were related to quarantine and isolation measures.124See 42 C.F.R. §§ 70.1–70.18 (2020); Authority to Impose Vaccination Requirements, supra note 11, at 3. However, as a response to COVID‑19 in September 2020, the CDC issued an Agency Order under the “other measures” provision of section 361 “to temporarily halt residential evictions to prevent the further spread of COVID‑19.”125Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID‑19, 85 Fed. Reg. 55,292 (Sept. 4, 2020). The CDC noted that in the context of a pandemic, preventing evictions could be an effective public health measure to help individuals comply with stay-at-home measures and social distancing.126Id.

The regulation was widely criticized as an overstep by the CDC, and opponents specifically argued that an eviction ban does not fit within the powers authorized by the statute.127See Canaparo et al., supra note 123; Blackman, supra note 123. The eviction moratorium was quickly challenged by thousands of landlords.128See Kriston Capps, Landlords Challenge U.S. Eviction Ban and Continue to Oust Renters, Bloomberg CityLab (Oct. 22, 2020, 2:11 PM), https://perma.cc/Y2P9-FAE7. Professor Ilya Somin of George Mason University speculated that if section 361’s “other measures” language is broad enough to “give the CDC the authority to adopt an eviction moratorium that applies to the entire country, then [it is] broad enough to mandate or restrict almost any kind of activity.”129Id.

In May 2021, the United States District Court for the District of Columbia blocked the eviction moratorium, saying that the CDC’s reading of section 361 went “too far,” and although Congress intended to give the CDC discretion to halt the spread of disease, the eviction moratorium exceeded the scope of authority of the statute.130Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 539 F. Supp. 3d 29, 39, 42 (D.D.C. 2021). The district court stayed its ruling pending appeal,131See Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 539 F. Supp. 3d 211, 218 (D.D.C. 2021) (granting motion for staying District Court’s May order). and the United States Court of Appeals for the District of Columbia Circuit kept the moratorium in place.132Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., No. 21-5093, 2021 WL 2221646, at *4–5 (D.C. Cir. June 2, 2021).

On June 29, 2021, the Supreme Court denied an emergency request by a group of landlords, property managers, and trade associations to block the eviction moratorium.133Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 141 S. Ct. 2320, 2320 (2021). Justice Brett Kavanaugh wrote that although “the [CDC] exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” the eviction moratorium should stay in place until its expiration on July 31, 2021 to “allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.”134Id. at 2320–21 (Kavanaugh, J., concurring). Justice Kavanaugh concluded his concurring opinion by saying that a “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”135Id.at 2321.

The June 29 opinion left the eviction moratorium in place until its expiration on July 31, 2021.136See id. at 2320–21. On August 3, 2021, the CDC—without heeding Justice Kavanaugh’s suggestion that a future eviction moratorium would require Congressional action—issued a new eviction moratorium set to expire on October 3, 2021 that applied to counties experiencing “substantial or high” levels of community transmission of COVID‑19.137Temporary Halt in Residential Evictions in Communities with Substantial or High Transmission of COVID‑19 To Prevent the Further Spread of COVID‑19, 86 Fed. Reg. 43,244 (Aug. 6, 2021). On August 26, 2021, the Supreme Court issued a per curiam opinion, declaring the new moratorium unenforceable.138Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489–90 (2021) (per curiam). In the per curiam opinion, the Court reiterated that the moratorium was far outside the scope of the authority granted to the CDC in section 361.139Id. at 2489.

The Court discussed the purpose of section 361, writing that the “downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute.”140Id. at 2488. Because the Court found that the federally imposed eviction moratorium was well beyond the scope of the authority granted in section 361, they concluded it is “up to Congress, not the CDC, to decide whether the public interest merits further action here.”141Id. at 2490.

The Court’s decision to strike down the eviction moratorium does not resolve the “other measures” ambiguity, however the Court’s opinion explained that section 361 requires a link between “other measures” and the direct targeting of disease.142See id. at 2488. The eviction moratorium decisions clarify that “other measures” does not grant the CDC limitless discretion, but did not address whether section 361 could include vaccine mandates as conventional public health measures used to prevent the spread of disease.

  1. The Occupational Safety and Health Administration
    Vaccine-or-Test Standard

The federal government attempted to use other statutory authority to mandate vaccines during the COVID‑19 pandemic. On September 9, 2021, President Joe Biden announced his administration’s plan to increase COVID‑19 vaccination rates in the U.S.143Morgan Chalfant & Rebecca Beitsch, Biden Steps into Legal Fight with Vaccine Mandates, The Hill (Sept. 12, 2021, 12:00 PM), https://perma.cc/WJ7Q-FVCC. The announcement directed the Department of Labor (“DOL”) and OSHA to develop an emergency rule mandating private businesses to require employees get vaccinated against COVID‑19.144Id. Although President Biden did not call for a universal vaccine mandate, the plan was expected to affect nearly 80 million Americans.145Scott Gleeson, Is Biden’s COVID‑19 Vaccine Mandate a Law? What Happens to Those Who Don’t Get the Shot?, USA TODAY (Sept. 10, 2021, 3:15 PM), https://perma.cc/U5C4-AUD7. Fines for noncomplying businesses were estimated to cost up to $14,000 per violation.146Ben Penn & Bruce Rolfsen, Biden’s Employer Shot Mandate Tasks OSHA With New Rulemaking, Bloomberg L. (Sept. 9, 2021, 7:55 PM), https://perma.cc/882C-ZH79. The announcement was met with skepticism, and eventually, legal challenges.147See Tom Hals, Explainer: The Legal Challenges Awaiting Biden’s Vaccine Mandate, Reuters (Nov. 4, 2021), https://perma.cc/R69X-N9KD.

The rule was issued through rulemaking authority granted by the Occupational Safety and Health Act.148COVID‑19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified as 29 C.F.R. §§ 1910, 1915, 1917, 1918, 1926, and 1928); 29 U.S.C. § 655(c). The OSH Act gives DOL broad authority to protect workers’ health and safety, and authorizes the Secretary of Labor “to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce.”149Ian Millhiser, Are Biden’s New Vaccine Requirements Legal?, Vox(Sept. 11, 2021), https://perma.cc/D29N-BMQA; 29 U.S.C. § 651(b)(3). OSHA mandates typically focus on work conditions at the property of the company,150Gleeson, supra note 145. OSHA does have a Hepatitis B vaccine mandate, which requires that employers whose workers could be exposed to Hepatitis B offer free shots to employees, but also contains an opt-out provision. Id.; see also Penn & Rolfsen, supra note 146 (explaining that the Hepatitis rule requires workers who opt out of the Hepatitis vaccination “to sign a form acknowledging they were offered the shot and declined”). The Hepatitis B vaccine mandate is based on workplace conditions, rather than a public health goal. See id. but OSHA plays a public health role where the spread of disease is a workplace concern.151See Penn & Rolfsen, supra note 146.

The COVID‑19 vaccine-or-test mandate hinged on an OSHA determination that vaccinated employees are “subject to substantial and unreasonable harm in the workplace because they are exposed to an individual who is not vaccinated.”152Id. On January 13, 2022, the Supreme Court blocked—and OSHA subsequently withdrew—the rule.153NFIB v. U.S. Dep’t of Lab., 142 S. Ct. 661, 666–67 (2022) (per curiam); COVID‑19 Vaccination and Testing; Emergency Temporary Standard, 87 Fed. Reg. 3928 (Jan. 26, 2022) (to be codified as 29 C.F.R. § 1910). The Court held that the OSH Act does not authorize a vaccine-or-test mandate, and emphasized that regulating the general public health was outside of OSHA’s area of expertise.154NFIB, 142 S. Ct. at 666. Specifically, the Court found that Congress granted OSHA power to regulate occupational dangers, but this does not “give[] that agency the power to regulate the public health more broadly.”155Id.

During COVID‑19, the federal government used different sources of authority to respond to the pandemic, including using section 361 to enforce the eviction moratorium and using the OSH Act to impose a vaccine mandate for certain employers.156Temporary Halt in Residential Evictions to Prevent Further Spread of COVID‑19, 85 Fed. Reg. 55,292 (Sept. 4, 2020); COVID‑19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified as 29 C.F.R. §§ 1910, 1915, 1917, 1918, 1926, and 1928). The restrictions and requirements tested the scope of the federal government’s authority to control the spread of contagious disease. In both cases, the measures did not withstand challenges.157Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2490 (2021) (per curiam); NFIB, 142 S. Ct. at 666–67. The failures of the eviction moratorium and the OSHA vaccine-or-test mandate show that courts are hesitant to arbitrarily expand the scope of health and safety laws to grant the federal government boundless authority to regulate and respond to public health matters. In both cases, the courts found that the actions did not fit within the powers authorized by Congress through the respective underlying statutes.158Ala. Ass’n of Realtors, 141 S. Ct. at 2490; NFIB, 142 S. Ct. at 666–67.

When the court overruled the eviction moratorium because of the attenuated connection between the moratorium and the spread of disease,159Ala. Ass’n of Realtors, 141 S. Ct. at 2488. the Court left room for future CDC regulation through more conventional public health measures. When the Court stayed the OSHA vaccine mandate, it emphasized the agency’s lack of expertise in regulating the public health. Unlike an eviction moratorium, vaccines are a conventional public health measure; unlike DOL and OSHA, the CDC’s expertise is in regulating the public health. Part II discusses how, even in light of the Court’s recent rulings, the CDC could issue a vaccine mandate through section 361 under certain conditions.

II.     Other (Conventional Public Health) Measures

As a conventional public health measure to control communicable disease, interpreting “other measures” in section 361 to include vaccinations is consistent with the text, purpose, and structure of the statute.160See WHO Recommended Strategies for the Prevention and Control of Communicable Diseases, World Health Org. 17 (2001); Calandrillo, supra note 33, at 438. A simple construction of the statute is as follows: Congress granted the CDC authority to issue regulations that, based on the agency’s judgment, are necessary to prevent the spread of communicable disease among the states,161See 42 U.S.C. § 264. and if the CDC determines that mandating vaccination—as a conventional public health measure162See World Health Org. supra note 160, at 17; Calandrillo, supra note 33, at 438.—is necessary to prevent the spread of communicable disease among the states, a vaccination mandate could fall within the scope of the statute.

Section 361 was created to grant the federal government authority to intervene and preempt state law when state actions were not enough to control the devastating effects of communicable disease.163Price, supra note 17, at 528. Indeed, section 361 is designed to allow the federal government to play a gap-filling role when the measures taken by state or local health authorities are “insufficient to prevent the [interstate] spread of . . . communicable disease[] . . .”16442 C.F.R. § 70.2 (2020); seealso Price, supra note 17, at 528; Staff of H. Comm. on Interstate and Foreign Commerce, 78th Cong., Consolidation and Revision of Laws Relating to the Public Health Service 24 (Comm. Print 1944). Therefore, the courts should read “other measures” in section 361 broadly enough to include vaccination mandates within the scope of authority granted by the statute. This is a reasonable reading of “other measures” because it is consistent with the text and purpose of the statute.165See infraSection II.A.

The goal of statutory interpretation is to apply common sense guidance in interpreting the meaning of ambiguous statutes.166See William N. Eskridge, Jr., Phillip. P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation 5 (2d ed. 2006); Valerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends 2–3 (2018). Statutory interpretation is not an exact science, but provides a starting point to identify how courts could interpret whether a mandatory vaccination would fit within “other measures” in section 361.167See Brannon, supra note 166, at 2–. Courts do not consistently apply all canons of statutory interpretation, and there is judicial discretion in deciding which canons to apply and how much weight to give them.168See William N. Eskridge, Jr., The New Textualism and Normative Canons, 113 Colum. L. Rev. 531, 534 (2013) (book review); Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 397 (1950). Indeed, for every canon of construction there is another that directly cuts against the first.169See Eskridge, supra note 168, at 534; Llewellyn, supra note 168, at 395, 401.

Applying the canons of statutory interpretation, the ambiguous text of section 361 should be read to include the authority to mandate vaccinations. The text of section 361 and the corresponding regulations give the CDC the authority to take necessary measures to prevent the spread of disease.17042 U.S.C. § 264; 42 C.F.R. § 70.2 (2020). Section 361 includes examples of such measures, but the list is not exhaustive.17142 U.S.C. § 264(a); see 42 C.F.R. § 70.2 (2020). Importantly, the text of section 361 encompasses conventional public health measures.17242 U.S.C. § 264; see Staff of H. Comm. on Interstate and Foreign Commerce, 78th Cong., Consolidation and Revision of Laws Relating to the Public Health Service 24 (Comm. Print 1944). Therefore, vaccinations, as conventional public health measures, can reasonably be read into the authority granted by section 361.173See World Health Org., supra note 160, at 17; Calandrillo, supra note 33, at 438.

A.     Vaccines as “Other Measures”

“Other measures” in section 361 should be construed to include conventional public health measures determined to be necessary within the reasonable judgment of the CDC. The canons of construction support this reading of the statute, and the text, purpose, and context of section 361 make clear that the CDC has broad discretion in determining what public health measures should be taken to regulate the spread of contagious disease among the states.

  1. The Plain Meaning Rule

The plain meaning rule supports including vaccines within a reasonable reading of “other measures” in section 361.174See 42 U.S.C. § 264(a). As the name suggests, the plain meaning rule instructs courts to follow the plain, everyday meaning of statutory text.175Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 69–77 (2012); see Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.”). Section 361 states that the CDC can use “other measures as in [its] judgment may be necessary” to prevent the spread of communicable disease.17642 U.S.C. § 264(a). The plain meaning of the text is that if the CDC determines a measure is necessary to prevent the spread of communicable disease, then the CDC is authorized to take that action.177See id. The plain meaning gives the CDC the discretion to determine which measures are needed to prevent the spread of disease.178See id. Therefore, based purely on the statute’s plain meaning, the CDC could mandate a vaccine under necessary conditions.

  1. The Whole-Text Canon

Although the plain meaning of the text appears to give broad discretion to the CDC, the Court has determined that there are limits to this authority.179Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam). The whole-text canon can be applied to determine the scope of section 361 authority, and whether it could include vaccine mandates. The whole text of section 361 supports a broad reading of the statute to include vaccines within “other measures.”

Rather than reading a statutory phrase in isolation, the whole-text canon instructs the reader to consider the statute as a whole to clarify the remainder of the statutory scheme.180See United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988). For example, subsection (a) of section 361 emphasizes the CDC’s discretion by stating twice that the CDC is authorized to make and enforce regulations “as in [its] judgment are necessary.”18142 U.S.C. § 264(a). Additionally, subsection (d) allows “for the apprehension and examination of any individual reasonably believed to be infected with a communicable disease” who is moving or about to move between states or any individual considered to be “a probablesource of infection to individuals” who are moving from one state to another state.18242 U.S.C. § 264(d) (emphasis added). The whole text of the statute reflects the broad discretion granted to the CDC to determine what regulations are “necessary,” and which individuals are “reasonably believed to be infected” or “a probable source of infection.”183See id.; see also Louisiana v. Mathews, 427 F. Supp. 174, 176 (E.D. La. 1977) (stating that “Congress has granted broad, flexible powers” to HHS to “use their judgment” to prevent the spread of communicable disease). Section 361 in its entirety conveys broad authority to the CDC to use conventional public health measures that, in the agency’s judgment, are necessary to prevent the spread of communicable disease.184See generally 42 U.S.C. § 264.

In addition to repeatedly granting federal health authorities discretion to determine which regulations are necessary or which individuals may be infected or are a source of infection, the more specific activities listed in section 361 are consistent with conventional public health measures.185Compare 42 U.S.C. § 264(a) (listing specific actions authorized in section 361), with World Health Org., supra note 160, at 17–18 (listing control strategies for disease control and prevention), and Authority to Impose Vaccination Requirements, supra note 11, at 1 (describing the federal government’s efforts to encourage vaccination rates); see also Abner J. Mikva & Eric Lane, Legislative Process 111 (2d ed. 2002) (describing that statutes can be intentionally drafted ambiguously to address “categories of conduct”). The statute expressly authorizes the CDC to issue regulations providing for inspection, fumigation, disinfection, sanitation, extermination, apprehension, and detention.18642 U.S.C. § 264(a)–(d). These are all conventional public health measures taken to prevent the spread of communicable disease.187World Health Org., supra note 160, at 17. Similarly, vaccines—as conventional public health measures—fit within this reading because they are commonly used to control disease, and have been upheld as reasonable public health responses at the state level.188Id.; Jacobson v. Massachusetts, 197 U.S. 11, 26–27 (1995). Because the statute repeatedly gives discretion to provide for necessary public health measures to prevent the spread of disease between the states, the whole-text canon favors including vaccinations within the scope of “other measures.”189See 42 U.S.C. § 264(a).

  1. The Rule Against Surplusage and Noscitur a Sociis

“It is . . . a cardinal principle of statutory construction that [courts] must ‘give effect, if possible, to every clause and word of a statute.’”190Williams v. Taylor, 529 U.S. 362, 404 (2000). In this vein, courts apply the rule against surplusage and noscitur a sociis to give meaning to ambiguous terms in a statute.191See Kevin Tobia, Brian G. Slocum & Victoria Nourse, Statutory Interpretation from the Outside, 122 Colum. L. Rev. 213, 258 (2022); Brannon, supra note 166, at 31. Courts are “[r]eluctant to treat statutory terms as surplusage,”192Duncan v. Walker, 533 U.S. 167, 174 (2001) (quoting Babbitt v. Sweet Home Chapter, 515 U.S. 687, 698 (1995)). and when a statute sets out a series of specific terms ending with a general term, “a word is given more precise [meaning] by the neighboring words with which it is associated.”193Freeman v. Quicken Loans, Inc., 566 U.S. 624, 634–35 (2012) (quoting United States v. Williams, 553 U.S. 285, 294 (2008)).

Applying these principles to section 361, too broad of a reading of “other measures” would render the specifically listed authorities superfluous because “other measures” would encompass any measure the CDC believes to be necessary. However, too narrow of a reading of “other measures” would restrict possible interpretations of regulatory actions to those expressed in the statute (i.e., isolation, sanitation, apprehension, and quarantine), rendering “other measures” inoperative as a redundant phrase in the statute.194See 42 U.S.C. § 264(a); Mikva & Lane, supra note 185, at 111 (describing that statutes can be intentionally drafted ambiguously to address “categories of conduct”).

The courts’ interpretations of “other measures” when considering the eviction moratorium helps inform the balance between giving effect to each word in the statute and limiting the CDC’s discretion. Ultimately, the eviction moratorium failed because it lacked a “downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute.”195Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2488 (2021) (per curiam). Just as there is a direct correlation between the specifically listed authorities in the statute and the interstate spread of disease, there is a direct correlation between vaccination and the interstate spread of disease.196See How Vaccines Work, supra note 33. “Other measures” should be read to give the CDC discretion to use measures similar in their effects to those listed in the statute. In other words, “other measures” should include other conventional public health measures that directly target the interstate spread of disease, including vaccine mandates.

  1. Legislative History

A broad reading of section 361 to include mandatory vaccinations within the scope of “other measures” is supported by the legislative history.197See Staff of H. Comm. on Interstate and Foreign Commerce, 78th Cong., Consolidation and Revision of Laws Relating to the Public Health Service 24 (Comm. Print 1944). Alone, legislative history is not enough to determine meaning, but it can be used to support a textual interpretation.198See, e.g., Milner v. Dep’t of the Navy, 562 U.S. 562, 572 (2011) (“Those of us who make use of legislative history believe that clear evidence of congressional intent may illuminate ambiguous text.”). Courts may turn to the record of Congress’s deliberations when enacting a law to support their interpretation of ambiguous text.199Brannon, supra note 166, at 39. There is a debate over using legislative history canons in statutory interpretation. See id. at 38. Because of this debate, some courts and legal scholars may give these canons less weight in interpreting a statute. See John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 84–85 (2006). This Comment does not take a position on the use of legislative history in statutory interpretation but includes this brief discussion of how legislative history canons would impact the interpretation of section 361 should a court choose to apply this tool. Some courts use legislative history canons to determine the scope of the statute and whether Congress intended to include a provision within the scope.200Frank H. Easterbrook, What Does Legislative History Tell Us?, 66 Chi.-Kent L. Rev. 441, 443 (1990).

A court may look to the legislative history to determine how “other measures” was intended to be construed, and whether vaccinations can reasonably be read within this scope.201See 42 U.S.C. § 264(a). The legislative history of the statute reveals that section 361 was understood by Congress to grant the federal government “[t]he basic authority to make regulations to prevent the spread of disease” among the states.202Staff of H. Comm. on Interstate and Foreign Commerce, 78th Cong.,Consolidation and Revision of Laws Relating to the Public Health Service 24 (Comm. Print 1944). A committee report on the Public Health Service Act of 1944 noted “Section 361(a) would also expressly sanction the use of conventional public-health enforcement methods.”203Id. This report indicates that Congress understood section 361 to grant regulatory authority beyond the express actions to include conventional public health measures.204See id. (noting authority granted in section 361 does more than authorize use of quarantine, but also sanctions use of conventional public health measures). Therefore, the legislative history favors a broad reading of “other measures” to include vaccinations.

“Other measures” should be construed broadly to include conventional public health measures as necessary within the judgment of the CDC. This is the best reading of the statute because the text, purpose, and context of section 361 make clear that the CDC has broad discretion in determining what public health measures should be taken to regulate the spread of contagious disease among the states.

B.     Potential Challenges to Vaccines as “Other Measures”

While the best reading of section 361 is to include conventional public health measures—including vaccines—within the scope of “other measures,” some scholarship indicates a reluctance to allow the federal government to interfere with powers historically reserved to the states.205See John Fabian Witt, American Contagions: Epidemics and the Law From Smallpox to COVID‑19 4–5 (2020); Yang & Rubinstein Reiss, supra note 13. However, such a strict construction would frustrate the purpose of the statute by rendering “other measures” inoperable where a conventional public health measure is not expressly included in the text.206See 42 U.S.C. § 264(a); Mikva & Lane, supra note 185, at 111 (describing that statutes can be intentionally drafted ambiguously to address “categories of conduct”). Including the ambiguous term “other measures” was purposeful because the express powers (e.g., sanitation, fumigation, inspection) were not intended to be exhaustive.207See 42 U.S.C. § 264(a); Wiley, supra note 112; Mikva & Lane, supra note 185, at 111; see also supra Section II.A.3. The statute grants broad discretion to the CDC to use their expertise to determine what measures are necessary to prevent the spread of communicable disease.208See 42 U.S.C. § 264; Staff of H. Comm. on Interstate and Foreign Commerce, 78th Cong., Consolidation and Revision of Laws Relating to the Public Health Service 24 (Comm. Print 1944). Furthermore, the statute grants the federal government the authority to intervene and preempt state law using conventional measures of disease control.209See 42 U.S.C. § 264(e).

  1. Nondelegation

Some scholars may argue the nondelegation doctrine supports a narrow reading of section 361.210See Wiley, supra note 112. The nondelegation doctrine is rooted in the principle of separation of powers, and instructs that “Congress may not constitutionally delegate its legislative power to another [b]ranch of government.”211Touby v. United States, 500 U.S. 160, 165 (1991). If courts apply nondelegation to section 361, they may hold that either the legislature did not intend for “other measures” to be read broadly enough to include federally mandated vaccinations, or if it did, the grant of such broad discretion violates the separation of powers.212See Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989) (“In recent years, our application of the nondelegation doctrine principally has been limited to the interpretation of statutory texts, and, more particularly, to giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.”). While these interpretations would favor a narrow construction of section 361, this finding is unlikely, and a court should not hold that section 361 must be narrowly construed to avoid nondelegation problems. The legislative history of section 361 shows that Congress intended to give the CDC broad discretion to use their expertise and judgment to provide for conventional public health measures to control the spread of communicable disease.213See Staff of H. Comm. on Interstate and Foreign Commerce, 78th Cong., Consolidation and Revision of Laws Relating to the Public Health Service 24 (Comm. Print 1944). As a conventional public health measure, vaccines likely fall within the discretion granted to the agency.

If Congress exceeded its authority by granting the CDC too much discretion to determine what constitutes “other measures,” this could conceivably favor a more narrow reading of section 361 under a theory of nondelegation.214See Wiley, supra note 112. The nondelegation doctrine allows Congress to “confer substantial discretion on executive agencies to implement and enforce the laws,”215Gundy v. United States, 139 S. Ct. 2116, 2119 (2019). as long as Congress “lay[s] down by legislative act an intelligible principle to which the [agency] authorized to [exercise that authority] is directed to conform.”216Id. (quoting Mistretta, 488 U.S. at 372). If a court finds that Congress “‘failed to articulate any policy or standard’ to confine discretion”217Id. at 2120 (quoting Mistretta, 488 U.S. at 373). for how to interpret section 361, “other measures” could be subject to strict construction. The standards for an “intelligible principle,” however, are not demanding, and the Supreme Court has only found a delegation excessive twice in U.S. history.218See A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537–38 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388, 433 (1935). For this reason, many scholars argue that the nondelegation doctrine is “dead.”219Matthew C. Stephenson, Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies, 91 Va. L. Rev. 93, 145 (2005) (noting that “the nondelegation doctrine . . . is basically a dead letter”). While it is true that some scholars argue that nondelegation continues to be relevant through constitutional avoidance, using avoidance canons to artificially narrow a statute does not necessarily serve the interests of the nondelegation doctrine. Compare Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 315–17 (2000), with John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 Sup. Ct. Rev. 223, 228 (2000). But see Peter J. Wallison, An Empty Attack on the Nondelegation Doctrine, AEI (Apr. 22, 2021),
https://perma.cc/N3PF-FMXS (“Since 2019, a majority of the current Supreme Court has expressed interest in revitalizing the nondelegation doctrine . . . . A reinvigoration of the nondelegation doctrine . . . has the potential to restrict the growth and power of [the administrative state].”).
Because Congress granted the CDC discretion to prevent the spread of disease through section 361 and the standards for satisfying the intelligible principle are low, the nondelegation doctrine does not preclude the CDC from including vaccine mandates in “other measures.”

  1. Federalism and State Police Powers

Some scholars, including Professors Y. Tony Yang and Dorit Rubenstein Reiss, argue for a narrow reading of “other measures” in section 361 because granting the federal government authority to mandate vaccines could alter the federal–state balance by allowing the federal government to exercise authority traditionally reserved to the states.220Yang & Rubinstein Reiss, supra note 13. The Supreme Court has upheld state authority to mandate vaccinations as a state police power. Jacobson v. Massachusetts, 197 U.S. 11, 39 (1905). States historically had authority to regulate public health. See Metro. Bd. of Health v. Heister, 37 N.Y. 661, 670 (1868). Some scholars argue that allowing the federal government to regulate an area traditionally reserved to the states could upset the balance of federalism. See Witt, supra note 205, at 4–5; see also Yang & Rubinstein Reiss, supra note 13. In statutory interpretation, there is a presumption against federal derogation of traditional state functions.221William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 607 (1992). Some scholars consider the police power to protect public health a key attribute of state sovereignty.222See Witt, supra note 205, at 82; Gibbons v. Ogden, 22 U.S. 1, 23 (1824) (stating that the police power to protect public health is a key attribute of state sovereignty); Jorge E. Galva, Christopher Atchison & Samuel Levey, Public Health Strategy and the Police Powers of the State, 120 Pub. Health Rep. 20, 20 (2005). If section 361 is read broadly to include federally mandated vaccines within “other measures,” this could alter the federal-state balance of power by allowing the federal government to regulate an area of law historically controlled by the states.223See Witt, supra note 205, at 4–5; Yang & Rubinstein Reiss, supra note 13.

Courts tend to require a clear statement before finding that a federal statute supersedes state law.224See Geier v. Am. Honda Motor Co., 529 U.S. 861, 867–68 (2000). Section 361 contains a clear statement in subsection (e), providing that federal preemption is permissible under section 361 anytime a state law “conflicts with an exercise of Federal authority under this section.”22542 U.S.C. § 264(e). Section 361 expressly includes authority to regulate through inspection, fumigation, disinfection, sanitation, and pest extermination, and in addition to the specifically listed authorities, section 361 provides that the CDC may provide for “other measures” as in its judgment are necessary.22642 U.S.C. § 264(a). If a court finds that vaccines fall within “other measures,” a vaccine mandate could be issued under section 361, preempting state law.227See Nationwide Mask Mandate, supra note 13, at 1.

In addition to concerns about federal preemption of state law, some scholars argue that because regulating the public health is a police power reserved to the states, the federal government may only regulate this area through one of the constitutionally enumerated powers.228Yang & Rubinstein Reiss, supra note 13; see also United States v. Morrison, 529 U.S. 598, 607 (2000). Some scholars argue that using the Commerce Clause to authorize a federally mandated vaccine is questionable at best.229Yang & Rubinstein Reiss, supra note 13. However, the state police power to regulate the public health is not unconstrained,230Witt, supra note 205, at 4–5. and the state power to regulate the public health can be superseded by congressional use of the Commerce Clause.231U.S. Const. art. I, § 8, cl. 3. See, e.g., Legal Authorities for Isolation and Quarantine, CDC (2020) (noting that the federal government derives its section 361 authority from the Commerce Clause of the U.S. Constitution). This Comment does not evaluate all Commerce Clause jurisprudence arguably relevant to the federal government’s authority to implement public health measures that are historically reserved as state police powers. This Comment does not address whether section 361 is a valid use of the Commerce Clause, and for purposes of this Comment the author assumes that regulating the spread of deadly disease among the states falls within the scope of the Commerce Clause. See United States v. Lopez, 514 U.S. 549, 559 (1995). Although the Supreme Court has never ruled explicitly on a federal vaccine mandate, the Court has said that when a state police power is in conflict with a federal power, such as the Commerce Clause, federal law prevails.232See Morgan’s S.S. Co. v. La. Bd. of Health, 118 U.S. 455, 466 (1886). Additionally, the Court has indicated that the federal government can intervene in a public health crisis under its Commerce Clause authority233SeeLouisiana v. Texas, 176 U.S. 1, 23–24 (1900) (Harlan, J., concurring); Morgan’s, 118 U.S. at 464. when the “speed and geographical scope” of a public health crisis warrant “national rather than local policy” to control the spread of disease.234Wittsupra note 205, at 108–09. Consider how the decentralized response to COVID‑19 led to patchwork state and local responses similar to the unsuccessful efforts to control yellow fever in the nineteenth century. Compare Witt, supra note 205, at 110–11, with Price, supra note 17, at 530–31. The public health and economic effects of yellow fever led to the creation of the predecessor language of section 361. Price, supra note 17, at 528; Epidemic Diseases Act, ch. 51, 26 Stat. 31 (1890).

Section 361 contains a clear statement regarding federal preemption, and the federal government can intervene in a public health crisis under the Commerce Clause. Although a federal vaccine mandate may be susceptible to criticism that the mandate disrupts the federal–state balance of power, Congress purposely enacted section 361 to provide for centralized power to help the states control disease outbreaks.

  1. Civil Liberties

It is unclear whether a federally mandated vaccine under section 361 would be unconstitutional as a violation of individual civil liberties.235See Ally Chamberlin, Federal Covid-19 Vaccine Mandate: A Constitutional Issue or Proper Exercise of Emergency Powers?, U. Miami L. Rev. (Oct. 5, 2021), https://perma.cc/9BWT-6ZQ9; Jeffrey A. Singer, President Biden’s New Vaccine Mandate Might Have Unintended Consequences, Cato Inst. (Sept. 9, 2021, 5:21 PM), https://perma.cc/689U-EPXP. The Bill of Rights guarantees certain freedoms, such as the right to be free from unreasonable arrest, as well as freedom of speech and religious liberty,236Witt, supra note 205, at 5. and the government’s ability to protect public health has often conflicted with these rights.237Id. While the Constitution protects bodily integrity and medical decision-making,238See Jacobson v. Massachusetts, 197 U.S. 11, 26–27 (1905). a state-mandated vaccine is not a per se violation of personal liberty.239See id. at 38–39. In Jacobson, the Court recognized that the right to bodily integrity is not absolute, but also recognized that a state may not impermissibly burden that right.240Id. A court would have to determine whether a federal vaccine mandate imposed under section 361 constitutes an impermissible burden.241See id.; Holland, supra note 8, at 83. To hold that a vaccine mandate places an undue burden on a liberty interest, a court would have to determine whether the regulation substantially interferes with an individual’s liberty.242See Washington v. Harper, 494 U.S. 210, 229 (1990).

In Jacobson, the Court noted that liberty secured by the Constitution “does not import an absolute right in each person to be . . . freed from restraint.”243Jacobson, 197 U.S. at 26. To the contrary, “[t]here are manifold restraints to which every person is necessarily subject for the common good.”244Id. Civil liberties limit what the government can do, but the Court has found exceptions when social imperatives trump individual rights.245Id.; see Witt, supra note 205, at 82. If the federal government were to mandate a vaccine under section 361, the Court would likely analyze the mandate using criteria similar to those applied in Jacobson.246See Jacobson, 197 U.S. at 28; Hodge & Gostin, supra note 57, at 856–57. Indeed, while Jacobson involved a state-mandated vaccine, it is likely that a federally mandated vaccine would raise the same individual liberty concerns, and therefore a Jacobson-like framework should apply.247Hodge & Gostin, supra note 57, at 856; see Jacobson, 197 U.S. at 28. The Jacobson framework was created to balance civil liberties against the need for the government to protect the public health.

C.     Proposal: The Interpretive Rule

The CDC should issue an interpretive rule to interpret the meaning of “other measures” in section 361 to include conventional public health measures, including vaccinations under limited conditions. Under this interpretive guidance, the CDC should require that any vaccination mandated under section 361 be evaluated under a framework similar to the Jacobson framework to prevent the federal government from implementing unnecessary and harmful vaccine mandates.

The Administrative Procedure Act2485 U.S.C. §§ 551–559. authorizes federal agencies to issue interpretive rules.2495 U.S.C. § 553(b)(A). Interpretive rules articulate interpretations of a statute and guide the agency (here, the CDC)250See supra note 14. in performing its duties.251See Energy Rsrvs. Grp., Inc. v. U.S. Dep’t. of Energy, 589 F.2d 1082, 1092 (Temp. Emer. Ct. App. 1978). Interpretive rules do not have the force and effect of law, but are used to inform the public of an agency’s interpretation of a regulation it promulgated or a statute it administers.252Thomas J. Fraser, Interpretive Rules: Can the Amount of Deference Accorded Them Offer Insight into the Procedural Inquiry?, 90 B.U. L. Rev. 1303, 1307 (2010). “[E]xamples of interpretative rules are agency manuals, guidelines, and memoranda of administrative agencies.”253Interpretative Rules, USLegal (2020), https://perma.cc/JB3V-CZKW.

An interpretive rule is an appropriate way for the CDC to clarify section 361, because the agency would not be creating new law or new authority. Through section 361, Congress granted the CDC the authority to take other measures that “in [its] judgment are necessary to prevent the . . . spread of communicable disease.”25442 U.S.C. § 264(a). An interpretive rule would simply explain that the CDC’s reasonable interpretation of section 361 includes conventional public health measures, including vaccination mandates. This would also help narrow the reading of section 361, to prevent the phrase “other measures” from applying to actions outside the scope of the statute, like the eviction moratorium.255See supra Section I.C.1. As the agency charged with interpreting section 361, the CDC could resolve the ambiguity of “other measures” within section 361 to explain the scope of what “other measures” includes.25642 U.S.C. § 264(a); 5 U.S.C. § 553(b)(A); see Fraser, supra note 252, at 1307; see also supra Section II.A.

As previously noted, interpretive rules do not have the force of law and are not legally binding.257Fraser, supra note 252, at 1308. However, courts may give the agencies issuing interpretative rules some level of deference.258See id. at 1303. Courts decide how much weight they should give an agency’s interpretation based on whether the issues implicate an agency’s expertise,259Huberman v. Perales, 884 F.2d 62, 67–68 (2d Cir. 1989). “the thoroughness evident in [an agency’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and . . . factors which give [the agency] power to persuade.”260Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). This sliding scale of deference is known as Skidmore deference.261See Fraser, supra note 252, at 1320.

An interpretive rule issued by the CDC to include vaccination mandates within the scope of section 361 would not make the interpretation binding, but Skidmore deference would give the agency’s interpretation deference to the extent its interpretation has the power to persuade.262Skidmore, 323 U.S. at 140. An interpretive rule clarifying section 361 should receive strong deference on the Skidmore sliding scale because the interpretive rule would (1) implicate the agency’s expertise in what is considered a conventional public health measure, (2) exhibit thorough consideration of the interpretation, (3) apply valid reasoning, (4) be consistent with earlier pronouncements because the CDC has never issued a contradictory rule, and (5) be persuasive through its necessity as required in section 361.263See id.

Whether a court were to give the interpretive rule weak Skidmore deference, or even no deference, the interpretation of “other measures” in section 361 to include vaccines as a conventional public health measure should still succeed if challenged in court. The statute’s text, purpose, and history are consistent in granting the CDC broad authority to use their judgment to protect the public against the spread of communicable disease.264See supra Section II.A. This authority applies to the use of conventional public health measures, including vaccinations.265See Calandrillo, supra note 33, at 438; see also supra Section II.A.

An interpretive rule would resolve the ambiguity in section 361 to explain that “other measures” refers to conventional public health measures, including vaccinations. In addition to resolving the ambiguity of “other measures,” the CDC should outline a framework explaining how a decision to require a vaccine would be evaluated before being mandated. This interpretive rule including interpretive guidance and a framework for federal vaccine mandates would carry weight if a federal vaccine mandate imposed under section 361 were challenged in court.

D.     Framework for Vaccine Mandates

Including the proposed framework in the interpretive rule would prevent the federal government from implementing unnecessary or unreasonable vaccine mandates. Section 361 was not designed or intended to grant the federal government boundless authority to mandate public health measures such as vaccinations that are unreasonable, arbitrary, or oppressive.266See H.R. Rep. No 78-1364, at 24–25 (1944). Section 361 authority gives the federal government “broad” and “flexible” powers to take necessary measures to prevent the spread of communicable disease when the measures taken by state and local authorities are insufficient,267See Louisiana v. Mathews, 427 F. Supp. 174, 176 (E.D. La. 1977); 42 U.S.C. § 264(a). but the Supreme Court has identified limits to this authority.268See Ala. Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2488 (2021) (per curiam). While this authority is broad, it is not—and should not be—unconstrained.269See Nationwide Mask Mandate, supra note 13, at 2; see also Administrative Procedure Act, 5 U.S.C. §§ 551–559; Religious Freedom Restoration Act of 1993 42 U.S.C. § 2000bb–2000bb-4 (restricting the government from “substantially burden[ing] a person’s exercise of religion” unless the government uses the “least restrictive means of furthering [a] compelling governmental interest”). Federal authority to mandate a vaccination is still subject to constitutional limitations and could only be imposed in restricted circumstances.270Federal Authority to Impose Vaccination Requirements, supranote 11, at 3.

The CDC should include guidelines for a federally mandated vaccination in their interpretive rule. A modified Jacobsonframework as applied to a federal vaccine mandate should incorporate four factors: (1) Public Health Necessity: the vaccine mandate must be based on the necessity of the case and should not be exercised in an arbitrary or unreasonable manner or go beyond what is reasonably required for the safety of the public to prevent the spread of disease through interstate commerce; (2) Reasonable Means: there must be a reasonable relationship between the vaccine mandate and the public health goal; (3) Proportionality: the vaccine mandate may not be arbitrary and oppressive; (4) Harm Avoidance: intervention through vaccine mandate should not pose a health risk to its subject.271The names and breakdown of these principles are adopted from Hodge & Gostin, supra note 57, at 856–57.

This proposed framework to be included as part of the CDC’s interpretive rule establishes a reasonable balance between constitutional rights and the common good.272See Jacobson v. Massachusetts, 197 U.S. 11, 28 (1905); Hodge & Gostin, supra note 57, at 856. Part III offers a selection of hypothetical scenarios to evaluate a federal vaccine mandate under the modified Jacobson framework.

III.     Test Cases

This Part discusses four hypothetical scenarios in which the CDC considers issuing a vaccine mandate under section 361.273These hypotheticals do not represent an exhaustive evaluation of scenarios in which the federal government could mandate a vaccine under section 361. Rather, they are intended to illustrate that a federal vaccine mandate issued under section 361 is still subject to constitutional constraints. The modified Jacobson framework is intended to guide the CDC evaluation of the necessity and constitutionality of a vaccine mandate. Before mandating a vaccine, the CDC should evaluate the vaccine and the situation under the four parts of the modified Jacobson framework to account for the balance between civil liberties and the need for a federal public health intervention.

A.     Case A

The A-Virus is a highly contagious and deadly disease that is spreading rapidly through parts of Africa. In the past thirty days, the United States has seen isolated cases of A-Virus in individuals who recently returned from afflicted parts of Africa. Testing for A-Virus is very accurate and widely available, and A-Virus symptoms appear within twenty-four hours of infection. All infected individuals in the United States were tested, hospitalized, and voluntarily quarantined. At this stage, state and federal public health officials are containing the spread of A-Virus by issuing travel advisories and encouraging individuals returning from afflicted countries to be tested upon their return to the United States. The isolated cases of A-Virus in the United States have been traced directly to Africa, and there is no evidence A-Virus is spreading from other parts of the world. While not in effect yet, the federal government is prepared to issue travel restrictions to limit travel to afflicted parts of Africa until A-Virus is under control.

A safe and effective vaccine for A-Virus was released five years ago. While some individuals voluntarily get the vaccine before going to countries where they may be at-risk for A-Virus infection, there is no state or federal mandate for the A-Virus vaccine, and less than one percent of the United States population is vaccinated against A-Virus. Because A-Virus has spread to the United States in the past thirty days, federal public health officials are considering mandating the A-Virus vaccine under section 361 authority to prevent the spread of A-Virus among the states. Before mandating vaccinations, the public health authorities would evaluate the mandate through the modified Jacobson framework:

(1) Public Health Necessity: The A-Virus vaccine would likely fail the first prong of the modified Jacobson framework because the vaccine mandate is not necessary to control the spread of A-Virus. Currently, testing, travel advisories, quarantine, and potential travel restrictions are effective means of controlling the spread of A-Virus. A vaccine mandate would go beyond what is reasonably required for the safety of the public.

(2) Reasonable Means: The A-Virus vaccine would likely pass the second prong of the modified Jacobson framework because the A-Virus vaccine would prevent the spread of A-Virus.

(3) Proportionality: The A-Virus vaccine would likely fail the third prong of the Jacobson framework because the vaccine mandate would be arbitrary. Currently, individuals are not at high risk to contract A-Virus unless they are traveling to afflicted parts of the world.

(4) Harm Avoidance: The A-Virus vaccine would likely pass the fourth prong of the Jacobson framework because the approved vaccine is safe and does not pose a health risk to its subjects.

Because the A-Virus vaccine mandate would likely fail two prongs of the Jacobson framework, the federal government should not move forward with a vaccine mandate under the interpretation of section 361 explained in the interpretive rule.

B.     Case B

The B-Virus is a new, highly contagious, deadly disease with no known treatments or cure. In the past six months, B-Virus has spread through the United States, killing tens of thousands. Infection rates are continuing to climb, and state-issued stay-at-home orders and emergency public health measures do not appear to be slowing the spread of the virus. Testing is unreliable and expensive, making it an ineffective and prohibitive tool for disease control. No vaccine for B-Virus existed at the start of the epidemic, but vaccine manufacturers are rushing to create a vaccine. The CDC typically requires a three-phase process for clinical development of a vaccine.274Vaccine Testing and the Approval Process, CDC (2020), https://perma.cc/RZ3K-G4TM. A vaccine manufacturer has one vaccination that just passed Phase I with promising results for preventing B-Virus. Federal public health officials are eager to get the public vaccinated as soon as possible to save lives and prevent B-Virus from being an even greater public health and economic disaster.

Without a vaccine, there is no known way to control the spread of B-Virus. HHS and the CDC waived the requirement for the new vaccine to finish the remaining clinical development phases, to begin distribution to adults over 18 as soon as possible. However, most of the general public is skeptical of getting a vaccine that has not gone through the full clinical development process, and they are refusing to get the B-Virus vaccine. The CDC is considering mandating the B-Virus vaccine using section 361 authority. Before mandating the vaccination, the public health authorities would evaluate the mandate through the modified Jacobson framework:

(1) Public Health Necessity: The B-Virus vaccine would likely pass the first prong of the modified Jacobson framework because the vaccine mandate is necessary to control the spread of B-Virus. Currently, there is no other known way of preventing the spread of B-Virus.

(2) Reasonable Means: The B-Virus vaccine would likely pass the second prong of the modified Jacobson framework because the B-Virus vaccine is effective at preventing the spread of B-Virus.

(3) Proportionality: The B-Virus vaccine would likely fail the third prong of the modified Jacobson framework because the vaccine mandate would be oppressive. Mandating a vaccine that has not finished the standard safety and development trials is not a safe means of preventing the spread of B-Virus.

(4) Harm Avoidance: The B-Virus vaccine would likely fail the fourth prong of the modified Jacobson framework because the vaccine is not proven to be safe and it is unknown if it poses a health risk to its subjects.

Because the B-Virus vaccine mandate would likely fail two prongs of the Jacobson framework, the federal government could not move forward with a vaccine mandate under the interpretation of section 361 explained in the interpretive rule.

C.     Case C

The C-Virus is a highly contagious respiratory disease that causes symptoms such as congestion, coughing, and exhaustion for a period of about two weeks. Death from C-Virus is extremely rare. However, many individuals who contract C-Virus have to take time off from work or school for the duration of their infection because of discomfort and risk of infecting others. The public is frustrated with the high infection rates from C-Virus. Businesses are struggling with so many employees working remotely or taking sick leave, and schools are worried about students missing weeks of school at a time because of C-Virus infections.

A vaccine manufacturer just completed the final phase of vaccine development for a C-Virus vaccine and the product is approved for distribution. States are starting to implement C-Virus vaccine mandates as a requirement for children to attend state public schools. However, federal public health officials are concerned that the school vaccination model will take years to achieve herd immunity. The CDC is considering issuing a vaccine mandate under section 361 for the C-Virus vaccine. Before mandating the vaccination, the public health authorities are evaluating the mandate through the modified Jacobson framework:

(1) Public Health Necessity: The C-Virus vaccine would likely fail the first prong of the modified Jacobson framework because the vaccine mandate goes beyond what is reasonably required for the safety of the public. C-Virus is not deadly and does not pose a public health emergency, therefore the mandate is not necessary for the safety of the public to federally mandate a C-Virus vaccine.

(2) Reasonable Means: The C-Virus vaccine would likely pass the second prong of the modified Jacobson framework because the vaccine would prevent the spread of C-Virus.

(3) Proportionality: The C-Virus vaccine would likely fail the third prong of the modified Jacobson framework because the vaccine may be considered arbitrary since it is not necessary to protect from the spread of deadly disease.

(4) Harm Avoidance: The C-Virus vaccine would likely pass the fourth prong of the modified Jacobson framework because the vaccine is proven to be safe and effective.

Because the C-Virus vaccine mandate does not pass each prong of the modified Jacobson framework, the federal government should not move forward with a vaccine mandate under the interpretation of section 361 explained in the interpretive rule.

D.     Case D

The D-Virus is a highly contagious deadly disease that killed thousands of people in the United States in the late nineteenth and early twentieth centuries. A vaccine for D-Virus was created in the 1920s, and through voluntary vaccination enough individuals were immunized that D-Virus was considered eradicated in the United States for decades. No states currently mandate a D-Virus vaccination, and in 2018 only fifteen percent of the United States population was vaccinated against D-Virus. In late 2019, isolated cases of D-Virus began to appear on the West Coast. Over the next few months, D-Virus began spreading quickly, infecting and killing thousands.

Vaccine developers quickly increased production of the safe and effective D-Virus vaccine for widespread distribution. Twenty-seven states passed laws requiring D-Virus vaccinations, but the anti-vaccination movement gained traction in several states, making it harder to pass vaccine mandates. Highly traveled and populous states including California, New York, and Florida are among the states that currently do not require the D-Virus vaccine. State governments in states requiring vaccination have expressed frustration that they are unable to control the spread of D-Virus if the twenty-three other states don’t take similar measures. Thousands of people are dying every day and infection rates are increasing rapidly in all states, regardless of vaccination laws. The CDC is considering mandating the D-Virus vaccine for all interstate travel using its section 361 authority. Before mandating the vaccination, the public health authorities are evaluating the mandate through the modified Jacobsonframework:

(1) Public Health Necessity: The D-Virus vaccine would likely pass the first prong of the modified Jacobson framework because requiring the vaccine is necessary to control the spread of the D-Virus disease among the states.

(2) Reasonable Means: The D-Virus vaccine would likely pass the second prong of the modified Jacobson framework because the vaccine would prevent the spread of D-Virus.

(3) Proportionality: The D-Virus vaccine mandate would likely pass the third prong of the modified Jacobson framework because it would not be arbitrary or oppressive.

(4) Harm Avoidance: The D-Virus vaccine mandate would likely pass the fourth prong of the modified Jacobson framework because it would not pose a health risk to its subject because the vaccine is safe.

Because the D-Virus vaccine mandate would likely pass all four prongs of the modified Jacobson framework, HHS and the CDC could consider moving forward with the federal vaccine mandate using section 361 authority.

The hypothetical scenarios demonstrate the effect of the modified Jacobson framework limitations on vaccine mandates. Resolving the statutory ambiguity in section 361 to include vaccine mandates within “other measures” should not give the federal government boundless authority to mandate vaccinations. The factors of the modified Jacobson framework impose parameters on the authority to mandate vaccines, and highlight key considerations for policymakers.

Conclusion

COVID‑19 reinvigorated the debate over federal authority to respond to matters of public health, but the exact scope of the powers granted to the federal government in section 361 remains undefined. Looking beyond COVID‑19, scientists warn that COVID‑19 will not be the last public health crisis many Americans experience in their lifetimes.275Victoria Gill, Coronavirus: This is Not the Last Pandemic, BBC News (June 6, 2020), https://perma.cc/459G-KRFJ. As the source of federal regulatory authority to control the spread of communicable disease, section 361 will serve a critical function for the federal government in future public health crises. Section 361’s “other measures” should be read to include the power to mandate vaccinations, and the CDC should issue an interpretive rule to define the scope and limitations of this authority. Including a modified Jacobsonframework for federally mandated vaccinations in the interpretive rule would safeguard the constitutional balance the Court emphasized in Jacobson by preventing the federal government from arbitrarily, oppressively, and dangerously mandating a vaccine.

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