COLUMBIA, S.C. (Dec. 14, 2021) – On Friday, the South Carolina House passed a bill that bans the state from enforcing federal vaccine mandates.
A large coalition of Republicans filed House Bill 3126 (H3126). The proposed law as passed by the House bans the state from enforcing a federal vaccine mandate.
Section 3B is the key provision.
“The General Assembly holds that a federal vaccine mandate is unconstitutional and shall not be enforced by this State.” [emphasis added]
In effect, state entities would ignore any federal vaccine mandate, which could prove highly problematic for OSHA in South Carolina, where the state is the primary enforcement mechanism for federal regulations.
H3126 also prohibits the state or any political subdivision of the state from enacting its own COVID-19 vaccine mandate for any employee, independent contractor, nonemployee vendor, or student as a condition of employment or attendance. The proposed law specifically includes school districts in the prohibition.
On Friday, the House passed H3126 by a 60-25 vote.
The “shall not be enforced” language regarding federal mandates sets the stage to completely withdraw all state enforcement of a federal vaccine mandate, but additional language is needed to make non-enforcement explicit.
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.
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. There are no federal OSHA inspectors in South Carolina.
By declaring that a vaccine mandate shall not be enforced by the state, passage of H3126 would take the first step toward prohibiting enforcement of the vaccine mandate, but it needs additional specific provisions to ensure state and local governments do not enforce or even assist in the enforcement of any federal vaccine mandate.
With the state serving as the OSHA enforcement arm in South Carolina, withdrawal of state enforcement would put the feds in a tight spot.
The state plan stipulates that OSHA will step in and enforce federal rules if the state can’t (or won’t) enforce them. Even if the feds do step in, they would still need state cooperation and assistance to effectively enforce a vaccine mandate. That’s why it’s imperative to include language that bars state and local assistance to federal enforcement.
Amending the bill with language expressly prohibiting state or local government agencies from providing material support or resources to the enforcement or effectuation of 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.
H3126 also provides some protection for an employee terminated for failure to receive a COVID-19 vaccination. Under current South Carolina law, an employee is not eligible for unemployment if they are discharged for “misconduct.” Termination for refusing a vaccine would likely be viewed as misconduct under current law. H3126 would make any employee fired for failure to get a COVID-19 vaccine eligible for unemployment compensation.
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.”
Complete withdrawal of state enforcement 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.
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.
Rep. Jonathon Hill (R) voted against the bill. His explanation of his vote reveals a potential weakness in H3126 as amended and passed by the House.
“H3126, as amended by Amendment 16, makes concessions to federal vaccine mandates for employees and encourages some industries to comply with mandating vaccines for their employees so as to not lose federal funding. Instead of making concessions to unconstitutional federal mandates and the deficit spending which funds them, South Carolina for the sake of its citizens should be asserting its rights under the Tenth Amendment of the United States Constitution and resisting the mandates.”
Nevertheless, the “shall not be enforced by this state” clause creates a foundation for such resistance. Amending the bill as it moves forward in the process to include an express prohibition on providing “material support or resources” to federal enforcement efforts will take things another step further.
H3126 will now move to the Senate for further consideration. It will first be assigned to a committee, where it will have to pass by a majority vote before the full chamber can consider it.
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