Dershowitz to Newsmax: Concern on COVID Mandate 'Beyond Individual Choice' A soldier receives a COVID-19 vaccine from Army Preventative Medical Services on September 9, 2021 in Fort Knox, Kentucky. (Jon Cherry/Getty)
By Sandy Fitzgerald | Monday, 13 September 2021 12:23 PM
Anyone who says the answers are "crystal clear" about the constitutional dilemma over the legality of President Joe Biden's wide-reaching federal vaccine mandate is "exaggerating," Harvard Law professor emeritus Alan Dershowitz said Monday on Newsmax.
"This is a concern that goes beyond individual choice," Dershowitz said on Newsmax's "National Report."
"If this was a vaccine that prevented only cancer or only heart disease, which are not communicable, then there would be a really serious constitutional issue, but this is a vaccine that does help prevent the transmission to other people, both the vaccinated and the unvaccinated. That's what makes it a closer constitutional question and nobody should say for sure that they know the absolute answer to this. It's a work in progress. We've never had this issue before."
Dershowitz said he's just finished writing a new book," The Case for Vaccine Mandates," in which he analyzes all of the constitutional issues, and said three major questions come to mind.
The first is whether the federal government has authority over this, and "the answer is yes," said Dershowitz, as "COVID doesn't recognize" state borders.
Another issue is whether a "properly drafted, legislatively enhanced mandate" on vaccines would be upheld by the courts, and Dershowitz said it would.
"The third is the hardest," said Dershowitz. "Can a president, through the Labor Department, do this alone, through OSHA? That's a hard question, and nobody knows how the courts will decide that."
Dershowitz also argued that the decision to be vaccinated is not really up to a person alone to make, as a shot does not only protect the person getting it.
"I'm vaccinated and I'm not going into crowded places without masks," said Dershowitz. "I'm 83 years old and I don't want to get COVID, even if it doesn't kill me or hospitalize me. Vaccinated people are at risk. A lower risk, but a risk to be sure. Moreover, if unvaccinated people get massive amounts of COVID, they fill the emergency wards. They fill the ICU units. They prevent other people from getting medical care."
A mandate on a shot that prevents cancer and heart disease would be a "really serious constitutional issue," said Dershowitz.
"This is a vaccine that does help prevent the transmission to other people, both the vaccinated and the unvaccinated," he said. "That's what makes it a much closer constitutional question and nobody should say for sure that they know the absolute answer to this. It's a work in progress. We've never had this issue before."
There was a Supreme Court decision in 1905 upholding a local mandate on smallpox vaccines, but that was not the same kind of issue, said Dershowitz.
In that case, the court ruled by a 7-2 majority that the city of Cambridge, Massachusetts, could impose a $5 fine on residents who to get smallpox injections, but being that the case in question now is a federal, not local case, the questions could be very different, said Dershowitz.
"Will the Supreme Court follow that precedent?" said Dershowitz. "Probably, but not certainly."