COLUMBIA, S.C. (Dec. 8, 2021) – A bill filed in the South Carolina House would take the first step toward blocking state and local enforcement of unconstitutional federal mask and vaccine mandates. An amendment would make the bill go even further in nullifying such mandates in practice and effect.
A large coalition of Republicans filed House Bill 3126 (H3126). The legislation declares “unlawful federal mask mandates” and “unlawful federal vaccine mandates” are “invalid in this State and may not be recognized in this State and is null, void, and of no effect in this State.” The bill includes a detailed definition of both an unlawful mask and an unlawful federal vaccine mandate.
H3126 would prohibit the state or any of the state’s political subdivisions from accepting any federal funds to enforce an unlawful federal mask mandate or unlawful federal vaccine mandate.
This provision would take a first step in blocking state and local enforcement of federal vaccine or mask mandates by cutting off some funding. Amending the bill with language withdrawing the state from enforcing OSHA regulations and explicitly prohibiting state or local government agencies and their employees from enforcing the mandates would take a significant step toward making such mandates “null and void” in practice and effect. A bill introduced in New Hampshire provides a good example of such language.
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 federal enforcement agency for the mandate.
But OSHA has an Achilles heel, a serious lack of enforcement capability.
OSHA only employs 774 inspectors for the entire country. Approximately 1,200 more 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 heavily on state cooperation to enforce the mandate. Stating that it’s a “team effort.”
Implementation and enforcement of OSHA regulations can be done on either a state or a federal level. South Carolina is one of 22 states that enforce OSHA regulations through a federally approved state plan. This is similar to the state-run exchanges for Obamacare.
As the first Step, South Carolina should withdraw from the state OSHA enforcement plan, stop enforcing OSHA regulations and leave it to the federal government. As a second step, the state should explicitly ban state and local participation in the enforcement of mask and vaccine mandates.
This would leave OSHA in a bad position, at best.
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.
LEGAL BASIS
The state of South Carolina 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 South Carolina 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.
WHAT’S NEXT
H3126 was referred to the House Committee on Ways and Means where it must pass by a majority vote before moving forward in the legislative process.
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