CHEYENNE, Wyo. (Nov. 14, 2021) – Earlier this month, the Wyoming legislature passed a bill purporting to take a stand against federal COVID-19 vaccine mandates that will have virtually no practical effect.

Rep. Albert Sommers (R-Pinedale), along with seven fellow Republicans, introduced House Bill 1002 (HB1002) in a special legislative session on Oct. 27. Under the proposed law, “No public entity shall enforce any mandate or standard of the federal government, whether emergency, temporary or permanent, that requires an employer to ensure or mandate that an employee shall receive a COVID-19 vaccination.” [Subsection (b)]

This sounds great so far. But other sections in the bill render the ban on enforcement utterly toothless.

In the first place, as the bill defines it, a”public entity” does not include “an entity receiving federal funding that by complying with subsection (b) of this section would lose that federal funding.” In other words, under the proposed law, any agency that believes it might lose funding would continue enforcing a vaccine mandate notwithstanding any other provision in the law.

Furthermore, the ban ends when a federal vaccine mandate takes “legal effect.”

Practically speaking, Wyoming’s ban on enforcing a vaccine mandate would only remain in effect as long as the mandate was subject to a federal judicial stay applicable in Wyoming or it was otherwise repealed, withdrawn, superseded, or declared by a federal court of competent jurisdiction to be unlawful or unenforceable. In other words, unless the federal courts strike the vaccine mandate down, Wyoming would enforce the law after all legal challenges were exhausted. In effect, the state is asking for federal permission to refuse to enforce a federal mandate.

HB1002 also sets up Wyoming to participate in or initiate litigation against a vaccine mandate in federal court, including the appropriation of $4 million for that purpose.

The House passed HB1002 by a 40-17 vote. The Senate approved the measure by a 20-7 margin. It now goes to Gov. Mark Gordon’s desk for his consideration.

Asking Permission Where None Is Required

By depending on federal court rulings to determine whether the state will enforce a federal vaccine mandate is asking permission where none is required.

The state of Wyoming can refuse to use state personnel or resources for the enforcement of any federal act whether constitutional or not.

Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”

No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.

If Wyoming doesn’t want to enforce vaccine mandates, it doesn’t have to — no matter what a federal court says about the constitutionality of such mandates. One has to wonder exactly why the Wyoming legislature passed such a bill making enforcement contingent on federal court opinions.

The Wyoming legislature pulled a similar stunt during the regular session when 21 Republicans voted to turn a bill that would have banned state enforcement of all federal gun control into a ban on absolutely nothing.  The amendment was so bad, the bill sponsor voted against it, and on the final read, he voted no on his own bill.

In Practice

State refusal to enforce vaccine mandates could take a step toward stopping them in their tracks. OSHA lacks the personnel to enforce the order itself.

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” is an extremely effective method to hinder the enforcement of any federal act because most enforcement actions rely on help, support and leadership from the states. Simply put, partnerships don’t work too well when half the team quits. Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on gun control, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.

The bottom line is states do have significant power to hinder and even nullify in practice any federal vaccine mandate. But you should beware of fake “resistance” to mandates such as this Wyoming bill. Politicians are apt to trumpet resistance that has no practical impact.

Mike Maharrey

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