More than a century ago, the U.S. Supreme Court ruled that mandatory vaccination is a permissible exercise of governmental authority in response to a public health crisis. Writing for the majority in Jacobson v. Massachusetts, Justice John Marshall Harlan explained that “the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” In other words, the Court found it well within the purview of the government — in this case the city of Cambridge — to enact and enforce a vaccine mandate to curb a smallpox outbreak that killed hundreds of Massachusetts residents between 1901 and 1903.
The high court’s 1905 opinion set a precedent that largely remains in force today. In fact, lower courts have cited the case a number of times during the COVID-19 pandemic in rejecting legal challenges to mask mandates enacted in several states. Last week, in a case brought by a Catholic elementary school here in Lansing, the Sixth Circuit U.S. Court of Appeals upheld the authority of the Michigan Department of Health and Human Services to issue a statewide mask mandate. Although the appeals court didn’t explicitly cite the Jacobson precedent, they reaffirmed the core principle that a mask mandate is a reasonable response, grounded in science, to the continuing dangers of the pandemic.
Which brings us to the matter of a mask mandate for public and private schools in Michigan and Gov. Gretchen Whitmer’s reluctance to enact one, despite a recommendation that she do so from Chief Medical Executive Dr. Joneigh Khaldun. Although the Michigan Legislature in its infinite wisdom repealed some of her emergency powers, the governor retains the ability to issue health-related directives through the statutory authority held by DHHS. Whitmer’s mandate hesitancy is understandable given the extreme and even violent backlash against her previous orders, but it is also inconsistent with the philosophy that has guided her approach since the beginning of the pandemic. We will follow the science, she said, repeating the mantra at every opportunity, especially when legislative Republicans pushed back, trotting out their usual bloviating nonsense about freedom and governmental overreach.
Has Whitmer seen the light? Does her new emphasis on containing the pandemic through “personal responsibility” constitute a change of heart? We don’t think so. We’re more inclined to believe she’s reading the tea leaves for her reelection prospects next year and has calculated that the more people she angers with new mandates, the less her chances of winning four more years. Already, polling shows her in a dead heat with former Detroit police chief James Craig, a virtual unknown outside of Republican party circles. Some 15 months before the election, it’s far too early to draw any meaningful conclusions based on polling data, but no doubt it’s a disconcerting sign for Team Whitmer.
She may also be setting up Republicans for an “I told you so” moment as the inevitable COVID outbreaks are now pushing exposed students and teachers into quarantine across the state, forcing recalcitrant school districts to adopt their own mask mandates. If the current trend continues, some schools could even be forced to shut down or bring back their dreaded virtual instruction models.
The governor’s game of chicken with her Republican adversaries makes for high stakes political drama, but we’re not persuaded it’s worth the potential costs. The prevailing delta variant is far more contagious than previous iterations of the coronavirus and children under 12 are still ineligible for the vaccine, so it is may just be a matter of time before an unvaccinated child gets seriously ill or transmits the virus to a vulnerable relative after being exposed at school. Only time will tell if it was a political gambit worth taking.
Whatever happens, history will surely remember our nation’s refusal to set aside partisanship and come together to defeat the coronavirus as one of the great failures of our allegedly enlightened society. When polling shows that 80% of Democrats support mask mandates and 70% of Republicans oppose them, it goes well beyond a philosophical difference over the proper role of government; it is the poison fruit of a dangerous game being played by the Republican establishment, which has unleashed a veritable tsunami of propaganda to con their followers into believing blatant falsehoods about COVID.
Angling for cheap political points even as the death toll continues to rise is sad and pathetic, to say the least, but we’re not surprised: The party of Trump has become a sickening joke of historic proportions, deeply damaging the psyche of a nation that yearns for real leadership in a time of crisis. It will take years, if not decades, to reverse the polarization of the American body politic. While it persists, we will continue to be vulnerable to yet more Trumpian demagogues who crave power over statesmanship, that elusive quality capable of uniting us around a set of shared values and interests and that puts the well-being of the American people above petty partisan politics.
As much as we want her to be reelected, we wish Whitmer would rise above the fray once again and order not only a statewide mask mandate for schools, but — following the lead of President Biden — a vaccination mandate for state employees. It’s the right thing to do and the surest way to save lives.