The pressure on American courts to work out social problems continues unabated. The courts have addressed the issue of whether a Black man is a “person” under the Constitution or “property” in pre-Civil War times. In 1905, the U.S. Supreme Court found that Massachusetts could fine a man for refusing a smallpox vaccine. The courts have weighed in on issues from child labor to gay marriage and abortion.

Therefore, it is no shock or surprise that the courts are now asked to determine how far the legislature or the executive may go in developing rules with respect to fighting the COVID-19 pandemic. Not surprisingly, most executives have relied upon their own emergency powers, rather than new legislation, to impose vaccine, mask and other mandates.

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