COVID-19 vaccine mandates are all the rage, with some people anxious to impose them and others vehemently opposed.
President Joe Biden recently directed the Department of Labor’s Occupational Safety and Health Administration to issue an emergency temporary standard mandating that private employers with 100 or more employees ensure that all employees are fully vaccinated or undergo weekly negative COVID-19 tests.
Hot on his heels, Gov. Greg Abbott issued Executive Order GA40, barring any entity in Texas from compelling vaccination on any individual “who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”
Some have characterized both Biden’s proposed federal mandate and Abbott’s order banning mandates as examples of executive overreach. But those critics fail to understand the different roles of federal and state governments. Biden likely lacks the authority to impose or ban mandates while state officials like Abbott can.
While states and the federal government share regulatory authority over public health matters, states have historically had the principal responsibility for protecting the health, safety and welfare of their citizens pursuant to the common law concept of police powers. The federal government lacks these broad police powers and is instead limited by the Constitution to enumerated powers.
As I discussed in an October 2020 report for the Competitive Enterprise Institute, long-established legal precedent gives states broad authority to issue vaccine mandates under their police powers. All states, for example, including Texas, mandate vaccination of children against vaccine-preventable infectious diseases. Conversely, their police powers give states the authority to regulate or ban mandates.
While employers generally have the ability, subject to compliance with various anti-discrimination statutes and the Americans With Disabilities Act, to require employee vaccinations, they must comply with applicable state laws.
In contrast, the Congressional Research Service concluded in an April report on State and Federal Authority to Mandate COVID-19 Vaccination that federal government authority to mandate vaccine “is subject to debate.” The CRS notes that no current federal statute expressly imposes vaccination requirements on the general population.
Section 361 of the Public Health Service Act, which gives the Centers for Disease Control and Prevention authority to issue regulations to limit foreign or interstate transmission of communicable diseases, arguably could form the basis of a federal mandate. But the types of health measures discussed in that section do not include vaccinations. This is the section the CDC relied on to issue a nationwide eviction moratorium that was invalidated by the Supreme Court as exceeding the authority outlined in the statute.
The Biden administration, undoubtedly with the recent eviction decision in mind, decided to rely on a different statute and agency, OSHA. But instead of directing the agency to engage in normal notice and comment rulemaking, the president directed OSHA to issue the more expedited ETS. An ETS, or emergency temporary standard, must meet a far more rigorous standard than normal OSHA rulemaking. The agency must prove they are dealing with a “grave danger” and that the standard they issue is “necessary” to protect workers from that danger. Such emergency standards are rarely issued and even more rarely upheld. Prior to the pandemic, OSHA had only issued an ETS nine times, most recently in 1983. Six of these were challenged in court and only one was upheld.
While OSHA has not yet promulgated the vaccine ETS, it is doubtful the courts will sustain it.
With that legal background in mind it is worth examining Abbott’s order in more detail. Clearly Abbott was at least partly motivated by the Biden administration’s proposed mandate, which one of the order’s “Whereas” clauses characterized as “another example of federal overreach” and “bullying” of private entities that will disrupt Texas’ recovery from the pandemic.
In fact, Abbott’s order does not actually ban mandates. It just provides broad exemptions including, “any reason of personal conscience.” Another of the exemptions available, “medical reasons, including prior recovery from COVID-19,” is based on science. Natural immunity resulting from recovery from COVID-19 is as good or better than vaccine immunity. There is no scientific basis for requiring people with natural immunity to be vaccinated, although that hasn’t stopped some institutions and governments around the country from trying to impose such mandates.
Abbott may dislike mandates, but he is not a vaccine denier. In an official statement announcing the executive order banning mandates, as well as in a tweet, he wrote, “The COVID-19 vaccine is safe, effective, and our best defense against the virus, but should remain voluntary and never forced.” One of the “Whereas” clauses of his order states, “COVID-19 vaccines are strongly encouraged for those eligible to receive one.”
Abbott had previously banned COVID-19 vaccine requirements by governmental entities but left private businesses the option of imposing their own mandates in an August executive order. Abbott spokesperson Renae Eze said to the Texas Tribune at the time “Private businesses don’t need government running their business.”
The Biden administration had previously taken that hands-off approach too. Back in March, when asked about a federal vaccine credential, a so-called vaccine passport, White House press secretary Jen Psaki responded there would be no federally mandated passport and that “we want to encourage an open marketplace with a variety of private sector companies and nonprofit coalitions developing solutions.”
The administration had also repeatedly said the federal government could not and would not impose vaccine mandates. On July 23, Psaki said mandates are “not the role of the federal government; that is the role that institutions, private-sector entities and others may take.” CDC director Rochelle Walensky subsequently confirmed there would be no federal vaccine mandate.
As I noted in an April report for the Competitive Enterprise Institute, private businesses have economic and reputational incentives to ensure safe workplaces and establishments. Firms want to minimize employee illness and absenteeism. They want to reassure workers and patrons that the establishment is a safe place to work or shop. At the same time they have to account for workers or customers who would resent being asked to prove they have been vaccinated.
Since conditions vary between different types of business, from region to region, and even between similar businesses in the same locality, each business is best positioned to determine its particular situation and whether or not to require vaccination or vaccine credentials.
Ideally, all levels of government would allow individuals and private businesses to make their own vaccine decisions. There will, however, be instances when that is not advisable, for example, in medical and nursing home facilities filled with vulnerable patients exposed to staffs that largely remain unvaccinated. But in general, we should, if possible, allow private entities to make their own determinations.
Read the full article at The Dallas Morning News.