OKLAHOMA CITY, Okla. (Dec. 6, 2021) – A bill prefiled in the Oklahoma House would set the stage to take on and nullify federal vaccine mandates, but it needs additional provisions to make it effective in practice.
Rep. Jim Olsen (R-Roland) prefiled House Bill 2981 (HB2981). The legislation declares that “forcing a vaccination mandate as a condition of employment against or upon a citizen of Oklahoma, which would infringe upon a citizen’s Constitutionally-protected rights, shall be null, void, unenforceable and of no effect in the state of Oklahoma.”
HB2981 also creates a cause of action in state court for Oklahoma employees to sue employers if they are forced to get a vaccine as a condition of employment and suffer “adverse effects.”
“Any public or private employer who requires employees to be vaccinated as a condition of their employment shall be liable for any adverse events suffered by employees as a result of such vaccination.”
This would force employers to consider the risks associated with mandated vaccines and could deter them from enforcing the federal mandate.
NULLIFICATION IN PRACTICE AND EFFECT
HB2981 features a declaration of nullification, but it lacks language that will have this effect in practice.
Language calling vaccine mandates “null, void and unenforceable” 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. It does say an “infringement on constitutionally-protected rights” is “unenforcible,” but there is no definition of infringement and it doesn’t prohibit state or local agencies from taking any specific actions. That would leave it to state agents to determine the issue of constitutionality and then end enforcement on their own — something that won’t happen. In practice, a court would have to find that a given federal action is “an infringement” before enforcement would end. This almost certainly wouldn’t happen.
Amending HB2981 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. As explained below, a determination of constitutionality isn’t necessary. A state can refuse to enforce any federal law regardless of constitutionality.
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. Oklahoma 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 Oklahoma 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.
As mentioned earlier, the state of Oklahoma 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 Oklahoma 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.
HB2981 will be officially introduced when the Oklahoma legislature convenes on Feb. 7. At that time, it will be referred to a House committee where it must receive a hearing and pass by a majority vote before moving forward in the legislative process.
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