Written By Jean Meyer
Are Vaccine Mandates Constitutional?
On August 2, 2021, Robert M. McDonald, the Public Health Administrator for the City & County of Denver / Executive Director for Denver’s Department of Public Health & Environment issued an Order mandating the vaccination against Covid-19 for personnel of the following categories of entities (the “Order”):
the City and County of Denver;
- hospitals; clinical settings;
- limited healthcare settings;
- shelters for people experiencing homelessness, including day and overnight shelters;
- correctional facilities, including jails, detention centers and community corrections sites and residences;
- schools, including post-secondary and higher education;
- childcare centers and services;
- any entity providing home care to patients; and,
- any entity providing first responder services.
This article evaluates a possible constitutional challenge to the Order in the context of procedural due process afforded under the 14th Amendment of the United States Constitution.
As backdrop, in 1905, the United States Supreme Court squarely answered the question whether compulsory vaccination laws were constitutional in Jacobson v. Massachusetts, 25 S. Ct. 358, 359 (1905). There, the Supreme Court held: “It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health.” The Jacobson decision remains binding precedent and thus, compulsory vaccination laws are not per se unconstitutional.
Nonetheless, simply because compulsory vaccination laws, generally, are constitutional, does not necessarily mean the Order is inherently constitutional.
The Fourteenth Amendment states: "No State shall . . . deprive any person of life, liberty, or property, without due process of law." The Due Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons. This article focuses on the procedural due process query.
The Tenth Circuit prescribes a two-step inquiry in determining whether an individual's procedural due process rights were violated: (i) did the individual possess a protected property or liberty interest to which due process protection was applicable?; and (ii) was the individual afforded an appropriate level of process? Thus, in alleging a deprivation of procedural due process, the plaintiff must first demonstrate the source of the property interest which enables him to assert the constitutional claim. Montoya v. City of Colorado Springs, 770 P.2d 1358 (Colo. App. 1989).
If the consequence of the Order is that employees must be terminated for failure to be vaccinated (should they refuse to be vaccinated) consistent with the Order, the question becomes, do employees have “property” interests for purposes of the 14th Amendment in their continued employment. The Colorado Court of Appeals previously held: the procedural protections of the due process clause may be triggered by an individual's property interest in employment as created, defined, and governed by state law, or by an implied contract of employment. An employee who cannot be suspended except for cause has a property interest in continued employment. Deprivation of this property interest by a government entity without the procedural due process protections guaranteed by the Fourteenth Amendment gives rise to a cause of action under 42 U.S.C.S. § 1983. Dickey v. Adams Cty. Sch. Dist., 773 P.2d 585, 586 (Colo. App. 1988).
Similarly, the Tenth Circuit Court of Appeals previously held: “In the employment context, when a person's employment can be terminated only for specified reasons, his or her expectation of continued employment is sufficient to invoke the protections of the Fourteenth Amendment." West v. Grand Cty., 967 F.2d 362, 366 (10th Cir. 1992).
Considering the above authority, an argument could be made that employees impacted by the Order - for example, a teacher who has a contractual right to employment which may not be terminated absent certain enumerated reasons - may have a “property” interest in continued employment for purposes of the 14th Amendment.
Should the first prong of the procedural due process challenge be satisfied (the existence of a constitutionally protected property right), the question becomes, does the Order violate the second prong of the analysis (are those individuals impacted by the Order being afforded an appropriate level of process)?
“[O]nce it is determined that the Due Process Clause applies, the question remains what process is due.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)(citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)). “An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542. “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. at 334. The Supreme Court has explained that:
The root requirement of the Due Process Clause [is] that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.
This principle requires some kind of a hearing prior to the discharge of an employee who has a constitutionally protected property interest in his employment.
[T]he pretermination hearing, though necessary, need not be elaborate. We have pointed out that [t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings. In general, something less than a full evidentiary hearing is sufficient prior to adverse administrative action.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542, 545.
The hearing required depends on: (i) the nature of the private interest at stake; (ii) the risk of erroneous deprivation given the procedures already guaranteed, and whether additional procedural safeguards would prove valuable; and (iii) the government's interest and the burdens that additional procedures might impose. See Mathews v. Eldridge, 424 U.S. at 335. For example, "[w]here . . . the state must act quickly, a meaningful postdeprivation hearing is adequate." Clark v. City of Draper, 168 F.3d at 1189. See Spielman v. Hildebrand, 873 F.2d 1377, 1385 (10th Cir. 1989)(concluding that removal of a child from parents' custody requires predeprivation hearing “except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event”).
In Youngers v. N.M. Dep't of Health, 148 F. Supp. 3d 1232, 2015 WL 13668431, at *37-43 (D.N.M. 2015), the District Court in the United States District of New Mexico concluded that the New Mexico Department of Health violated due process when it afforded a woman with developmental disabilities no process before depriving her of medical care, conditions of reasonable care, safety, and nonrestrictive confinement, because it afforded her no process for deprivation.
As applied to Denver’s Order, it is unclear that any public hearings prior to the enactment of the Order have or will take place, and it is unclear that there has been any opportunity for the public to be heard concerning the Order. Thus, it appears an argument could be made that the individuals impacted by the Order have not been afforded an appropriate level of process. Despite this, it is worth pointing out that Chapter 24, Sec. 24-1 of the Revised Municipal Code of the City and County of Denver provides that: “Any person aggrieved by a notice or order issued by the department of public health and environment, who believes the same to be factually or legally contrary to the ordinances of the city, or the policies and regulations of the department of public health and environment, may appeal the notice or order to the board of public health and environment within thirty (30) days of the issuance of the order or notice in the manner provided by rules of procedure of the board.”
That said, there have been several constitutional challenges made concerning Covid-19 related executive orders addressing forced shutdowns and the like. Most of those challenges have addressed business closures, travel restrictions, and restrictions on religious gatherings. Those challenges have not generally been successful.
For example, in ETP Rio Rancho Park, LLC v. Grisham, No. CIV 21-0092 JB/KK, 2021 U.S. Dist. LEXIS 23409, at *135-36 (D.N.M. Feb. 8, 2021) a trampoline facility made several constitutional challenges to the New Mexico Department of Public Health’s Public Health Order limiting mass gatherings. As relevant to this analysis, the Court in ETP Rio noted that:
In matters of public health and safety, the Supreme Court has long recognized that the government must act quickly. Quick action may turn out to be wrongful action, but due process requires only a post-deprivation opportunity to establish the error. Moreover, “due process is flexible and calls for such procedural protections as the particular situation demands.” Here, the Defendants closed initially the Plaintiffs' business as a quick response to the rapid spread of the COVID-19 pandemic. The Defendants provide an avenue by which the Plaintiffs can request a hearing, and at least one of the Plaintiffs. . . has had an administrative hearing already. The Plaintiffs maintain that they “should have been permitted to operate during the pendency of the proceeding” and “should either be permitted to remain open during the pendency of an appeal . . . or the state should provide for an expedited hearing and determination of any such appeal.” The outbreak of a new and deadly disease, however, “constitutes an imminent danger to public safety is precisely the kind of circumstance where the government must act quickly.” Guttman v. Khalsa, 669 F.3d at 1114. The totality of the circumstances here indicate that the Defendants likely afforded the Plaintiffs adequate process.
In evaluating the above, it should be noted that Denver’s Order does not provide a mechanism by which those impacted by the Order may request a hearing.
For additional consideration, a District Court in the United States District Court for the Northern District of Illinois Eastern Division was also recently presented with procedural due process arguments concerning a Covid-19 related executive order issued by Illinois’s Governor restricting business activities. A reading of the District Court’s Order, however reflects that the Complaint challenging the relevant executive order was generally poorly pled and sought to enforce procedural safeguards set forth in Illinois law, not procedural protections under the United States Constitution. In turn, the Court held:
Plaintiffs contend that they should have received the same notice and opportunity to be heard prior to the issuance of the Executive Orders as provided to people and businesses prior to orders of quarantine, isolation, and shutdown under the [Illinois Department of Public Health Act]. In short, Plaintiffs complain that the Governor failed to comply with the requirements of Illinois state law prior to issuing the Executive Orders. But “there is no constitutional procedural due process right to state-mandated procedures.” GEFT Outdoors, 922 F.3d at 366; see also Charleston v. Bd. of Trs. of Univ. of Ill. at Chi., 741 F.3d 769, 773 (7th Cir. 2013) (“[W]e will be clear once more: a plaintiff does not have a federal constitutional right to state-mandated procedures.”); River Park, Inc. v. City of Highland Park, 23 F.3d 164, 166–67 (7th Cir. 1994) (“Failure to implement state law violates that state law, not the Constitution; the remedy lies in state court.”). So even if Plaintiffs are ultimately correct that the Governor should have complied with the procedures set out in the IDPHA in implementing his response to COVID-19, they still will not have established a federal constitutional violation.
Moreover, applying the three-factor Mathews test, the Court concludes that Plaintiffs’ post-deprivation ability to challenge the Executive Orders is likely constitutionally sufficient. Even accepting for the sake of argument that the nature of the private interests at stake weighs in Plaintiffs’ favor, that factor cannot overcome the minimal risk of decisional error and the state’s overwhelming interest in protecting public health and safety during an ongoing pandemic. The Court notes that “procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978). In the present case, the individualized notice and predeprivation hearings for which Plaintiffs advocate would be unlikely to decrease the risk of the erroneous deprivation of rights, as all persons and businesses falling within the same broad categories are treated the same under the Executive Orders and thus an error as to one would be an error as to all. Meanwhile, the Governor makes a compelling case that holding individualized predeprivation hearings for each affected person and business would overwhelm the administrative system and cripple the state’s ability to act quickly and decisively to contain a rapidly spreading disease. Meanwhile, as to the third Mathews factor, the state’s interest in protecting public health and safety is extremely robust. See Jacobson, 197 U.S. at 29–31. Pre-deprivation hearings would almost certainly render the state’s response to the COVID-19 pandemic ineffective, causing immense harm to thousands of Illinois residents. Because the second and third factors in the Mathews test weigh heavily against the need for pre-deprivation process, the Court concludes that Plaintiffs have, at best, a negligible chance of prevailing on the merits of their federal procedural due process claims. Plaintiffs’ only meaningful argument to the contrary relies on the Governor’s purported violation of state law, which, as discussed above, cannot form the basis for a federal procedural due process claim.
Not all courts throughout the United States have adopted such a deferential approach to executive decrees invoked under the emergency of Covid-19. For example, a District Court in the United States Court for the Western District of Pennsylvania recently noted:
While respecting the immediate role of the political branches to address emergent situations, the judiciary cannot be overly deferential to their decisions. To do so risks subordinating the guarantees of the Constitution, guarantees which are the patrimony of every citizen, to the immediate need for an expedient solution. This is especially the case where, as here, measures directly impacting citizens are taken outside the normal legislative or administrative process by Defendants alone. There is no question that our founders abhorred the concept of one-person rule. They decried government by fiat. Absent a robust system of checks and balances, the guarantees of liberty set forth in the Constitution are just ink on parchment. There is no question that a global pandemic poses serious challenges for governments and for all Americans. But the response to a pandemic (or any emergency) cannot be permitted to undermine our system of constitutional liberties or the system of checks and balances protecting those liberties. Here, Defendants are statutorily permitted to act with little, if any, meaningful input from the legislature. For the judiciary to apply an overly deferential standard would remove the only meaningful check on the exercise of power.
Cty. of Butler v. Wolf, 486 F. Supp. 3d 883, 901 (W.D. Pa. 2020)
Likewise, the Wisconsin Supreme Court assumed a similar skeptical approach in concluding a Covid-19 related emergency order, which limited travel and closed businesses, was invalid.
These cases, among other similarly despicable examples, illustrate rather painfully why the judiciary cannot dispense with constitutional principles, even in response to a dire emergency. Indeed, it is in the midst of emergencies that constraints on government power are most important. It is during such emergencies that our historical memory is of vital importance. Although invoking the most odious instances of government-sanctioned oppression makes many uncomfortable and tends to trigger outrage, it is imperative to do so in order to remind the citizenry of grave abuses that have been justified in the name of exigent need. These repugnant cases must be cited to explain the fundamental importance of judicial resistance to popular pressures, which in times of crisis implore judges to cast aside the law in the name of emergency. "History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. . . . [W]hen we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it."
Wis. Legislature v. Palm, 942 N.W.2d 900, 924-25 (Wis. 2020).
In summary, based on the above relevant authority, while an argument could likely be made that Denver’s Order violates procedural due process protections under the 14th Amendment, most courts thus far, though not all, have been deferential to executive orders attempting turn the tide of the Covid-19 pandemic. Future constitutional challenges on procedural due process grounds will likely continue to face an uphill battle. In evaluating the constitutionality of the Denver Order, and possible additional forthcoming orders compelling vaccination statewide which may, or may not, strictly comply with notions of procedural due process, the validity of those orders will likely flow from how credible governmental claims of a continued “emergency” and the necessity for “urgent” action remain.
 ETP Rio Rancho Park, LLC v. Grisham, No. CIV 21-0092 JB/KK, 2021 U.S. Dist. LEXIS 23409, at *79 (D.N.M. Feb. 8, 2021)