TOPEKA, Kan. (Feb. 20, 2022) – A bill filed in the Kansas House would ban state and local enforcement of a federal COVID-19 vaccine mandate, an important first step to nullify it in practice and effect.
Three Republicans introduced House Bill 2535 (HB2535) on Jan. 25. The legislation would ban Kansas officials, agents and employees from enforcing or attempting to enforce any federal COVID-19 vaccine requirement. The proposed law includes felony criminal penalties for any state official found in violation of the law. Additionally, “an official, agent or employee of the state of Kansas who is found guilty of violating this section shall immediately have all compensation and all benefits terminated and shall be liable for damages to those natural persons directly affected by such official’s, agent’s or employee’s enforcement or attempted enforcement of any federal COVID-19 vaccine requirement.”
HB2535 also prohibits federal enforcement of any vaccine requirement in the state, including “severity level 7, nonperson felony” penalties applicable to federal agents who break the law.
VACCINE MANDATE ENFORCEMENT IN PRACTICE
Although the Supreme Court struck down the OSHA-enforced vaccine mandate, it left the door open for such a mandate in the future. The Court didn’t say the federal government couldn’t impose a vaccine mandate. In fact, it let stand a federal mandate for healthcare workers. SCOTUS merely held that Congres did not give OSHA enforcement authority. That means Congress could make a statutory change to empower OSHA to enforce a vaccine mandate. Or, the president could find another way to impose one.
Even though the Court struck it down, the Biden mandate reveals the difficulty the feds face enforcing any vaccine mandate.
The 490-page federal vaccine regulation required 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 covered all federal workers and contractors. Companies that failed to comply could have faced fines of nearly $14,000 per “serious” violation. OSHA would 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 would 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. Kansas 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 the state to withdraw any and all state and local support from enforcing vaccine mandates.
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 dis step in, they would still need state cooperation and assistance to effectively enforce a vaccine mandate.
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.
ARRESTING FEDERAL AGENTS
The provision imposing criminal penalties on federal agents is problematic and should be amended out in committee.
Under federal statutes, any case involving a federal agent acting within the scope of his or her official duties gets removed to federal court. In other words, the current structure of the legal system makes it virtually impossible to prosecute a federal agent in state court. Lawyers for the charged federal agent would immediately make a motion to remove the case to a federal district court under 28 U.S.C. § 1442(a)(1). Unless the state judge refused to comply, the case would then be out of state hands.
Nevertheless, the threat of arrest would create problems for federal agents trying to enforce vaccine mandate in Kansas and would certainly gum up the works even if they were never prosecuted. The question is whether or not local law enforcement will be willing to enforce the law on federal officials. This seems unlikely.
The state of Kansas 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 Kansas 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.
HB2535 was referred to the House Committee on Judiciary. It must receive a hearing and pass by a majority vote before moving forward in the legislative process. The deadline for bills to succeed in the first chamber is Feb. 24, so it’s unlikely it will make it this session.
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