The Federal Government or the States: Who Has The Power Over Vaccine Mandates?

Zoe Herrmann, '23

As vaccines have become widely available across the country and people begin returning to work, the inevitable debate over vaccine mandates has begun. While the federal government cannot create a nation-wide vaccine mandate for everyone, it does have clear authority to require employers implement mandatory vaccine programs in certain circumstances. The real debate is how far this federal authority reaches and whether states have the power to stop such mandates by the federal government.

Currently, the federal government, which in its own way is a business with 2.1 million civilian employees, has directed that all federal employees must be vaccinated, as well as all employees of companies that do business with the federal government. These rules were both issued as executive orders by President Biden on September 9th, along with a direction to OSHA (Occupational Safety & Health Administration) to develop a rule mandating vaccines or regular testing for all businesses with a hundred or more employees. In a speech announcing these initiatives President Biden stated, “If you want to work with the federal government and do business with us, get vaccinated. If you want to do business with the federal government, vaccinate your workforce”. These executive orders have led several major companies like United Airlines, CVS, Facebook, and Google to announce that they are implementing vaccine mandates either on their own or in compliance with the federal contractor executive order.

Although the Biden administration has made clear it would prefer to see employers mandate the vaccine for all their employees, some states are raising objections that may lead to legal challenges that will examine the limits on the federal authority to impose vaccine mandates. Both Montana and Texas have taken steps to prohibit vaccine mandates by employers. and other states are considering similar action. Earlier this year Montana passed a law which makes it illegal to require COVID-19 vaccines for workers. The Montana Attorney General Austin Knudsen wrote that the law “prohibits employers from discriminating against the people based on their vaccination status”. Anticipating the OSHA rule will conflict with the Montana law, the Montana attorney general said he will challenge the OSHA rule when it is issued.

While Montana is the only state that has outlawed vaccine mandates so far, Texas Governor Greg Abbott recently issued an executive order limiting vaccine mandates and he went on to ask the Texas legislature to pass his order into law. Like the Montana law, the Texas executive order prevents employers from requiring vaccines and imposes fines up to $1,000 per violation on the business. The executive order states: “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.” While President Biden’s executive orders and OSHA rule will also permit religious and medical accommodations, they do not contain an exemption based on one’s “personal conscience” like the Texas Governor’s order.

Several large companies based in Texas, including American Airlines and Southwest Airlines, have already announced they will follow the federal executive order and disregard the Texas order. Now that both Montana and Texas have challenged the federal government’s authority, it seems certain that the debate over who has control over vaccine mandates will be brought to the U.S. Supreme Court. If brought to the Supreme Court, a verdict could set a precedent over federal authority to regulate public health in a nationwide emergency.


Sources: 
https://protect-us.mimecast.com/s/HGYgCADm1piG2JNfGECyE?domain=gov.texas.gov
https://protect-us.mimecast.com/s/S9S4CJ6PQBig5POHVhEny?domain=whitehouse.gov/
https://protect-us.mimecast.com/s/iavTCDk08viDgpOCWcg_P?domain=montanarightnow.com
https://protect-us.mimecast.com/s/qBniC9r2gWCro0QHEIIdLdomain=nam12.safelinks.protection.outlook.com
https://protect-us.mimecast.com/s/pJ4nCXDM5WikpRJf66M5D?domain=whitehouse.gov/
https://protect-us.mimecast.com/s/T9e7CM891GfvE1DFwg7ym?domain=whitehouse.gov/