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21 Appalachian J.L. 1 (2021-2022)

handle is hein.journals/appalwj21 and id is 1 raw text is: Timon Cline, Common Good Constitutionalism and Vaccine Mandates: A Review of
Jacobson v. Massachusetts in Light of COVID-19, 21 APPALACHIAN JOURNAL OF LAW (2022).
ARTICLES
Common Good Constitutionalism and Vaccine Mandates: A Review of
Jacobson v. Massachusetts in Light of COVID-19
Timon Cline
Keywords: COVID-19, Common Good Constitutionalism
Appalachian Journal of Law
Vol. 21, Issue 1, 2021
I. INTRODUCTION
Since Pfizer's, and then Moderna's and Johnson & Johnson's,1 a new vaccine
was announced in the U.S., the public conversation surrounding COVID-19
public health measures has shifted from an emphasis on masking and
quarantining to inoculation.2 The essence of the conversation has changed
little, however. What remains in play is the question of state power and citizen
compliance therewith.
Early on, the Biden White House expressed interest in a national mask mandate
which, however constitutionally dubious, exhibits willingness for large scale
public health mandates which will set the tone for state governments, which,
as we shall see, possess the constitutional power to institute such requirements
for public health.3 Most states have adopted masking requirements,4 though
some states lifted such restrictions in the opening months of 2021.5 As to
inoculation, statewide mandates have happened before and are, generally,
constitutionally defensible. For example, as recently as 2019, New York City
mayor Bill de Blasio ordered mandatory vaccinations in parts of Brooklyn in
a J.D., Rutgers Law School; M.A.R., Westminster Theological Seminary; B.S., Wright State University.
1 Berkeley Lovelace, Jr. FDA stafendorses emergency use ofModerna's Covid vaccine in a critical step toward approval, CNBC (Dec. 15, 2020),
https:/vwwcnbc comi2020;l2/1 Scovid-vaccine-fda-sas-modernas-data -mneets exp~ectations-For'-emnerg~enc-use html. Johnson & Johnson
has recently encountered production and distribution problems. Emma Newburger, U.S. statesface steep decline inJ&JCovid vaccine amid
production problemsatBaltimoreplant, CNBC (Apr. 10, 2021), https_/_vncnbcm/_2021_4/1_0us-states-face-steep-decine-in-jj-vaccine-
next-wvekas-feds-work-to arpprove-Baltimore-plaut htm.
2 Katie Thomas et al., Pfizer's Early Data Shows Vaccine IsMore Than 90% Effective, N.Y. TIMES (Nov. 9, 2020), https:/a/wwnytimes conia
2020/11/09/health/covid-vaccine-pfizerhtml. See also Niall Ferguson, Get Ready to Live With Covid'sHasslesForever, BLOOMBERG (June 27,
2021),                                                                                            (arguing that
some pandemic-induced restrictions will outlive the pandemic itself).
3 Sara Morrison, Why Biden's national mask mandate will be a national mask suggestion, Vox (Nov. 9, 2020), htws://wvox corn1215570/
biden-president-elect-mask-rnandate. C.f Joe Bien: Covi vaccination in US will not be mandatory, BBC (Dec. 5, 2020),
https:/tibbcomnewsworld-u-canada-5 13939:Katerina Kaganovich, Mask Mandates Are Constitutional. Here Is Why, COLUMBIA
POLITICAL REVIEW (Jan. 4, 2021), httpa/wwwcreviworgb1og221;1rnask-mandatesare-constiutiona-here-is-wh.
4 Leah Asmelash et al., Most states now require face masks to reduce the spread of Covid-19. These are the ones that don't, CNN (Dec. 8, 2020),
httwsJ/wwwenn com/2020;1 1i09/us; biden-mask-mandate-nationwide~i'nd/index htm.
5 JiachuanWu et al.,Mask mandates are being lifted across the country. See iftheresa mandate in yourstate,NBC NEWS (Mar. 10, 2021),
h                                                     l; Kaia Hubbard, These States
Have CO VID-19MaskMandates, U.S. NEWS (Apr. 9, 2021), https://www.usnews.com/news/best-states/articles/these-are-the-states-with-
mask _mandates. Of course, some states never instituted masking requirements. Priscella Vega, A dozen US. states remain without mask
mandates to protect against COVID-19. Why?, L.A. TIMES (Dec. 11, 2021), htms://wwwiatimes cm/world-nation/story2020-1211mask-
mandates.

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