Governor Abbott Creates Legal Problem For Federal Vaccine Mandates
Overturning State Authority To Prohibit Mandates Would Undermine Legal Basis For Mandates Themselves
On Monday, October 11, Texas Governor Greg Abbott expanded his earlier ban on COVID-19 vaccine mandates for state agencies to include all “entities” (companies, non-profits, et cetera). EO-GA-40 specifically forbids any company or organization from requiring either its employees or its customers to receive one of Big Pharma’s covid inoculations.
No entity in Texas can compel receipt of a COVID-19 vaccine by any
individual, including an employee or a consumer, 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.
I hereby suspend all relevant statutes to the extent necessary to enforce
While Texas is hardly the first state to issue a prohibition on vaccine mandates—eleven other states have previously enacted prohibitions on mandates for government agencies and on requirements that businesses get proof of vaccination from their customers—Governor Abbott’s executive order is the most sweeping prohibition to date. “No entity” means that no government agency, private enterprise, non-profit organization, or service organization can compel anyone to get inoculated against the SARS-CoV-2 virus.
With this blanket prohibition, Governor Abbott has placed President Biden’s call for employer-based vaccine mandates, and the power of the Federal government to impose such measures, in a legal bind. It is difficult, if not impossible, for anyone to challenge the Texas ban without effectively destroying the rationale for government-imposed vaccine mandates.
To understand the conundrum, some background is in order.
The Law Behind The Texas Ban
As Abbott lays out in the preamble to EO-GA-40, Texas has operated under a state of emergency with regards to the COVID-19 pandemic since March of 2020. The legal mechanics of this state of emergency are laid out in the Texas Government Code, Sections 418.014 and 418.016. 418.014 authorizes the Texas Governor to issue a disaster declaration, and 418.016 authorizes him to suspend regulatory statutes as needed in order to effectively address the declared emergency.
The governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.
Section 418.0155 further amplifies gubernatorial power during a state of emergency by requiring a list of regulations and statutes that need to be suspended during an emergency be continuously maintained.
However, even without a disaster declaration, the Texas Governor has authority to act on various issues by virtue of the state executive being tasked with the faithful execution of the laws within the state of Texas, per Article 4, Section 10, of the Texas Constitution.
He shall cause the laws to be faithfully executed and shall conduct, in person, or in such manner as shall be prescribed by law, all intercourse and business of the State with other States and with the United States.
Given that the Texas Constitution contains a more explicit articulation of the Freedom of Worship than even the First Amendment to the United States Constitution, protecting the religious liberties of Texans is unquestionably within the Governor’s brief.
All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.
As a final touch, Governor Abbott also pledged to have the topic of banning vaccine mandates raised in a special session of the Texas Legislature, and once the Legislature addresses the matter, EO-GA-40 is to be rescinded.
This, in brief, is the legal basis for Governor Abbott’s executive order.
Religion IS An Issue Regarding The SAR-CoV-2 Inoculations
The most significant aspect of EO-GA-40 is its explicit protection of religious exemptions to inoculation. In this regard, EO-GA-40 is the antithesis of the stance taken by Governor Kathy Hochul of New York, who was quoted in a September press briefing as saying that there were no “legitimate” religious exemptions to the SAR-CoV-2 inoculations.
“There are not legitimate religious exemptions because the leaders of all the organized religions have said there’s no legitimate reason,” the governor told reporters during a Monday morning briefing, “and we’re going to win that in court in a matter of days.”
While a great many aspects of vaccine mandates and vaccine policies are still being litigated in the courts, multiple court rulings have already been handed down defending the rights of individuals to refuse inoculation for religious reasons.
On October 7, a three-judge panel for the Sixth Circuit Court of Appeals unanimously upheld the rights of student-athletes at the University of Michigan to refuse inoculation.
In a unanimous published decision issued Oct. 7, the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio, held that the university violated the athletes’ First Amendment rights.
All 16 athletes had filed for religious exemptions, which, according to the court, the university “ignored or denied.”
The court stated: “The university put plaintiffs to the choice: Get vaccinated, or stop fully participating in intercollegiate sports. By conditioning the privilege of playing sports on plaintiffs’ willingness to abandon their sincere religious beliefs, the university burdened their free exercise rights.”
"The question is whether the State’s summary imposition of § 2.61 conflicts with plaintiffs’ and other individuals’ federally protected right to seek a religious accommodation from their individual employers," wrote Judge David N. Hurd, a Bill Clinton appointee.
"The answer to this question is clearly yes. Plaintiffs have established that § 2.61 conflicts with longstanding federal protections for religious beliefs and that they and others will suffer irreparable harm in the absence of injunctive relief," reads the 27-page ruling, which offers a reprieve for thousands of unvaccinated doctors, nurses and other healthcare workers who would have otherwise been fired or prevented from working on Tuesday if the ruling had gone the other way.
Hurd issued a preliminary injunction preventing the NY Department of Health from acting against any employer who grants religious exemptions, adding that the plaintiffs were likely to succeed in their case.
Two different federal courts both reaching the same conclusion on the validity of religious objections to inoculation establishes quite emphatically that religious beliefs and personal conscience are essential to a person’s choice to accept or decline the SARS-CoV-2 inoculation. Whether one shares such beliefs or not does not alter the reality that there are people who do have such beliefs, nor the reality that the courts as well as the Constitution defend their right to such beliefs.
(Full Disclosure: I personally do not approve of the Big Pharma inoculations or mandates for their use for moral reasons. I discuss my reasoning on the matter in detail here, for those who are interested)
Jacobson: SCOTUS Legitimized State Action On Vaccine Mandates
The basis for most arguments in favor of government-imposed vaccination and inoculation mandates comes from the 1905 Supreme Court case Henning Jacobson, Plaintiff In Error v The Commonwealth Of Massachusetts (197 US 11). That case revolved around the contestation of mandatory smallpox vaccination, and was decided in favor of Massachusetts.
In writing for the majority, Justice John Marshall Harlan explicitly laid out the basis for state-ordered vaccinations:
The authority of the state to enact this statute is to be referred to what is commonly called the police power,—a power which the state did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained frained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and 'health laws of every description;' indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states. According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.
The term “police power” first found jurisprudential usage in the 1827 case Brown v Maryland (25 US 419), which also grounded the police power as being intrinsically a state rather than federal power.
The power to direct the removal of gunpowder is a branch of the police power, which unquestionably remains, and ought to remain, with the States.
The federal government, while having authority to enact and enforce laws within the enumerated power given in Article 1 of the Constitution, does not have a general police power, which serves to articulate the boundary between state and federal authority in a federal system of government. More specifically, the Tenth Amendment explicitly reserves all unenumerated powers to the individual state governments.
The division of police power in the United States is delineated in the Tenth Amendment, which states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” That is, in the United States, the federal government does not hold a general police power but may only act where the Constitution enumerates a power. It is the states, then, who hold the general police power. This is a central tenant to the system of federalism, which the U.S. Constitution embodies.
To the extent that government may mandate vaccinations and inoculations, that power is found at the state rather than the federal level of government.
The Power To Compel Is The Power To Prohibit
This is the challenge Governor Abbott’s executive order poses to the proposed federal-level vaccination mandates: If extant precedent and case law allows a state to mandate vaccinations, those same precedents and case law allows a state to prohibit such mandates. As there is no general police power accruing to the federal government, extant precedent and case law creates no legal basis for the federal government to impose vaccination mandates, and thus no legal basis for the federal government to unilaterally overrule or pre-empt Governor Abbott’s executive order.
In order for the federal government to impose a vaccination mandate, a doctrine must be found that grounds that authority in something other than the general police power which is unequivocally reserved to the states. While such a doctrine might be notionally possible, the assertion of such a doctrine runs counter to the explicit language of Jacobson; if the federal government were to argue a basis for vaccine mandates using the Commerce Clause of the Constitution, for example, then the authority for vaccine mandates is derived from something other than the police power explicitly identified by Justice Harlan. Thus, an argument in favor of such alternate legal doctrine is an argument against the legal doctrine contained in Jacobson, which is the only acknowledged basis for vaccination mandates at all.
To challenge Governor Abbott’s executive order (and, presumably, whatever act of the Texas Legislature is passed in special session in this regard) and secure for the federal government superior authority to act, the existing foundation for any government-decreed vaccination mandate must therefore also be challenged. If Governor Abbott’s authority to act in this realm is overturned, then so is Governor Hochul’s authority in New York. States that favor vaccination mandates would have their own mandates nullified were the federal government successful in arguing against EO-GA-40 and its successor legislation.
Religious Liberty Complicates Things
The courts’ validation of exemption claims on the basis of religious liberty brings a further complication to any challenge of Governor Abbott’s executive order. Because religious liberty is a personal freedom protected by the First Amendment, legal doctrines in support of a Federal vaccine mandate are limited. While some legal theorists have suggested the Commerce Clause is one avenue for a federal vaccine mandate, the Supreme Court has already ruled in NFIB v Sebelius (2012, 567 US 519), which appropriately was a case involving healthcare (specifically, the individual mandate provision of the Affordable Care Act), that the Constitutional power to “regulate” commerce does not include a coercive police power to engage in commerce.
The individual mandate, however, does not regulate existing commercial activity. It instead compels individ-uals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Con-gress to regulate individuals precisely because they are doing nothing would open a new and potentially vast do-main to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.
Treating vaccination as a commercial activity arguably follows the same legal reasoning the government advanced in NFIB and had rejected.
Even legal experts who advocate for vaccine mandates concede that religious exemptions are very likely a necessary element if the mandates are to be found consitutional, and medical exemptions are largely regarded as de rigeur for any such mandate.
Here’s what we know at this point: Assuming Jacobson establishes a floor of constitutional protection, vaccination mandates must at a minimum not be arbitrary or discriminatory. At least some medical exemptions are probably constitutionally required—as supported by dicta in Jacobson, which lower court cases and Gorsuch’s concurrence in Roman Catholic Diocese have treated as functionally binding. It is possible that the Supreme Court may soon rule that at least some religious exemptions are also constitutionally required—which would be a departure from pre-pandemic state and lower federal court decisions upholding school vaccination laws that lack religious exemptions. At the very least, Tandon seems to imply that religious exemptions are required if there are also any secular exemptions.
Such arguments remove Congress’ enumerated powers from consideration as a source of the necessary police power to impose a coercive vaccination mandate at the federal level. What remains to justify such a mandate is the general police power, which nearly two centuries of American jurisprudence has placed firmly within the scope of state and not federal government.
Until Jacobson is overturned, the legal presumption will continue to be that the general police power of the states affords them the authority to mandate vaccinations in defense of the public health. Until Jacobson is overturned, that same legal presumption validates a state’s prerogative to reject vaccination mandates. Until Jacobson is overturned, there is no legal presumption of a general police power at the federal level to support a federal vaccination mandate.
That is the dilemma presented by Governor Abbott’s executive order banning COVID-19 vaccination mandates within Texas. If the federal government is inclined to challenge Abbott’s order, or to even pre-empt that order, it must be able to articulate a valid legal doctrine to support such a challenge—and it remains to be seen how it could do that without overturning Jacobson along the way.