MONTGOMERY, Ala. (Dec. 9, 2021) – A bill prefiled in the Alabama House would set the stage to take on and nullify federal vaccine mandates, but it needs additional provisions to make it more effective in practice.
Rep. James Hanes (R) introduced House Bill 29 (HB29) with five Republican cosponsors. The legislation declares “this state shall not recognize or observe any federal vaccine mandate implemented after January 1, 2020.”
HB29 also creates a cause of action in state court for Alabama employees to sue employers “for any damages caused by an adverse reaction, injury, or temporary or permanent disability arising from an employer mandate that he or she receive a vaccination for COVID-19.”
This could force employers to consider the risks associated with mandated vaccines and could deter them from enforcing the federal mandate. It could also be little more than a ploy to set the stage for a conflict that would result in another federal court case. How it plays out in practice remains to be seen.
NULLIFICATION IN PRACTICE AND EFFECT
Asserting that the state will not “recognize or observe” a federal vaccine mandate implies it will not enforce such a mandate. It is effectively a declaration of nullification. This language sets a foundation for further action, but it will not end the state or local enforcement of vaccine mandates. The bill does not specifically prohibit state or local enforcement of anything. The legislation lacks any clear definition of what it means to refuse to “recognize” or “observe” a federal vaccine mandate. And it doesn’t prohibit state or local agencies from taking any specific actions.
Amending HB29 with a provision that specifically bans the use of state personnel and resources from enforcing a vaccine mandate would take the first step toward nullifying such mandates in practice and effect.
VACCINE MANDATE ENFORCEMENT IN PRACTICE
The 490-page federal vaccine regulation requires every person employed by businesses with 100 or more workers to be vaccinated or undergo weekly COVID-19 testing. According to CBS News, that includes 84 million employees. The mandate also covers all federal workers and contractors. Companies that fail to comply will face fines of nearly $14,000 per “serious” violation. OSHA will serve as the primary enforcement agency for the mandate.
Implementation and enforcement of OSHA regulations can be done on either a state or a federal level. Alabama is one of 28 states where OSHA has full enforcement responsibility. But even in such states, OSHA receives assistance and cooperation from state agencies and employees. That’s why it’s imperative for Alabama to withdraw any and all state and local support from enforcing vaccine mandates.
This would leave OSHA in a bad position because it has a significant personnel problem. OSHA only employs 774 inspectors. Another 1,200 work for the states but enforce OSHA rules. That small force of inspectors must cover more than 7 million businesses. Currently, it would take them 160 years to inspect every business under its jurisdiction just one time. That’s why the feds will have to rely on snitches to have any hope of enforcing the vaccine mandate.
“There is no army of OSHA inspectors that is going to be knocking on employers’ doors or even calling them,” a former OSHA chief of staff told CBS News “They’re going to rely on workers and their union representatives to file complaints where the company is totally flouting the law.”
OSHA will also rely on state cooperation to enforce the mandate. It’s a “team effort.”
Here’s the dirty little secret they don’t want you to know — partnerships and “team efforts” don’t work when half the team quits.
If employees refuse to tell on their coworkers and employers, and if states refuse to help enforce the vaccine mandates, the vaccine mandates won’t be enforced.
End of story.
State action can set the stage to nullify the vaccine mandate in practice and effect.
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 action because most enforcement relies on help, support and leadership from the states. This is true of virtually every federal law, and it will clearly be the case with the vaccine mandates.
Human action is also key. States can ban enforcement help all they want, but if everyone still complies, there’s nothing to enforce. In order to nullify the mandate, people must reject and resist it first and foremost.
The state of Alabama 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 Alabama 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.
HB29 will be officially introduced when the Alabama House convenes on Jan. 11. It will be referred to the House Committee on Judiciary where it will need to receive a hearing and pass by a majority vote before moving forward in the legislative process.