So, per the New York Times, Governor Abbot of Texas says, “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,” the order states. “I hereby suspend all relevant statutes to the extent necessary to enforce this prohibition.”
This is an interesting turn of events given that a few weeks ago, President Biden, per the AP, introduced expansive rules that “mandate that all employers with more than 100 workers require them to be vaccinated or test for the virus weekly, affecting about 80 million Americans. And the roughly 17 million workers at health facilities that receive federal Medicare or Medicaid also will have to be fully vaccinated.”
So, on one hand, we have the President mandating that private businesses must require their employees get vaccinated while on the other hand, we have a governor mandating that private businesses cannot require that their employers get vaccinated.
Fascinating times we’re living in, no?
I’ll be curious to see what happens as time progresses and these two polar opposite mandates begin to collide in practical cases. Further, I believe that Texas is not the only state that will end up taking this step.
Given that this is such a unique Constitutional issue, I wanted to take a moment today and briefly discuss this topic from a Constitutional standpoint. I’m going to give a bird’s eye view because there is much about Texas law and Constitution that I don’t know, nor claim to know, and there is much about the details of federal law, and OSHA, that lawyers would be more equipped to explain than me (I’m sure there are privacy issues at play here as well).
That being said, I can give you a very broad Constitutional analysis, laying the foundation for any further research you may wish to do.
1. Federal Vaccine Mandates Are Unconstitutional
The fact that federal vaccine mandates are unconstitutional shouldn’t come as a surprise to you (while there is some legal precedent, the legal precedent was also unconstitutional). The Constitution was created to prevent arbitrary government action. Our government cannot just act according to its whim, no matter how virtuous they may claim those actions to be. Given this, even for presumably “good” reasons like “health” and the like, the federal government cannot tell private businesses that they must require their employees to receive a certain medical treatment.
Private businesses are just that, private.
They have the liberty to run their businesses as they see fit. However, as time has progressed, slowly, the federal government has made inroads on private businesses and their autonomy by mandating that they must serve everyone or they must hire a certain amount of people or certain types of people.
Again, the virtue of the mandate is not the topic of discussion here, rather, it’s the ability for the federal government to force a private business to do something against their will, using a power not bequeathed to the federal government by the Constitution. This is both highly dangerous and arbitrary.
So, yes, federal mandates on how a private business handles the health of their employees is a federal power nowhere to be found in the Constitution.
2. State Vaccine Mandates Are Common
Now, if a government is going to start mandating vaccines on its citizenry, it’s better that the state government does it rather than the federal. In fact, right now, many states already do mandate vaccines, primarily for children. The key here being that the federal government does not because it knows it cannot. It may recommend certain vaccines and states can take those recommendations into consideration when handling their mandates, but the federal government cannot mandate a vaccine.
However, even in states with mandated vaccines, there are many people who are able to opt out for various reasons. Furthermore, most companies do not require individuals to show proof of these vaccines in order for individuals to enter into their facilities.
All state governments have their own Constitutions. Look at your own. Likely, the power to mandate vaccines is still highly limited and, may be, in some cases, unconstitutional according to the state’s Constitution. Overreach of government power is not a new thing, so just because states have mandated a vaccine doesn’t mean that it was Constitutional to do so. Furthermore, these mandates seem to apply to individuals rather that coercing businesses to force employees into a certain vaccine simply to stay employed.
For more on this and related Supreme Court cases, check out this article.
3. States Have a Right to Push Back Against Unconstitutional Federal Behavior
Because issues of health are exclusively state powers, states are fully within their Constitutional power and right to push back against federal intrusion in this realm. Any federal behavior that is outside of the Constitution should be immediately treated as invalid.
Because it is. If the federal government didn’t derive the power to do something from the Constitution, then it gets the power to do so from nowhere. Thus, it’s void.
Regardless of one’s opinions on the vaccine, on Texas, on Biden or others, Texas….and every state, is perfectly within its right to stand up and protect its realm of power.
That’s how this country was built to function. Ambition must be made to counteract ambition to prevent any one government from taking all the power.
4. Private Businesses Also Have A Right to Push Back Against Unconstitutional Behavior
Here’s another important point. Private businesses also have a right to protect their realm of power. This is where things start to get a little dicey.
I’m sure many business owners cringe at the thought of government, regardless of the level (state or federal) mandating that they run their business in a certain way. Am I right?
Ok, so the presumption is that “government” shouldn’t be able to tell a business how to run their business, yes?
Based on the federal Constitution and on many state Constitutions, this is relatively true until it comes to topics like how commerce is regulated amongst states or within states. Aside from that, the U.S. constitutions leave little power to their governments over private businesses and their day to day functions.
Given this, even Governor Abbott’s order may be unconstitutional.
Remember, when analyzing any government behavior, the questions should never be: “do I like it?”; “is it good?”; “is it helpful?” or the like.
The question is: “is it Constitutional?”.
That’s all that matters. Sure. Government could write a law saying that we all get free ice cream once a week and we could “like” that law, but is it a Constitutional law? No. And such an arbitrary law would end up destroying the liberty of every ice cream company.
Let’s take it a step further. During WWII, many Americans and government officials probably thought that the internment of Japanese Americans was “good” at the time, but it was certainly not Constitutional.
Likes and preferences shift and change as do definitions of “good” and “bad”. The American government was established on this realization and the fact that it should never be subject to the arbitrary will of whoever is in power.
All that to say, if Governor Abbot has the Constitutional ability to issue the mandate he did, then he is within his realm of power, and that’s all that matters (although based on my research, this power likely lies in the state legislature).
If he does not, however, he is pushing back against an arbitrary federal government by being arbitrary himself.
What the states and those governing them need to realize is that they have the Constitutional right to simply ignore an unconstitutional federal decree by refusing to enforce it.
This then leaves the choice of whether to follow the decree exclusively up to the private businesses and their owners with no threat of coercion or reprisal.
There’s much to this topic that I still need to study and learn about and there’s much to this topic that I will not discuss on here (the actual virtue of the vaccine etc) as I’m not a lawyer or medical professional.
However, what I can give you here is a bird’s eye perspective of realms power, Constitutions and how this particular topic of vaccine mandates fits into those broad concepts.
It’s critical that we maintain a careful eye on our state governments and their Constitutions in these next months as they truly hold the preservation or destruction of our liberty in their hands.
The Liberty Belle
Note: There’s an entirely different topic I’m not discussing today, surrounding how private businesses can and are acting as the arm of the government, where government is not allowed, by coercing and forcing behaviors on their employees. This is a whole other subject entirely but still a fascinating and important one.