Governor Abbott’s Executive Order Prohibiting COVID-19 Vaccine Requirements by Texas Employers Is Invalid
On October 11, 2021, Texas Governor Greg Abbott issued an executive order prohibiting any entity, including private businesses, from imposing COVID-19 vaccination requirements on employees or customers. But President Joe Biden recently mandated all federal contractors to ensure that their workforces are vaccinated or regularly tested for the coronavirus. President Biden’s order will be implemented soon by emergency regulations promulgated by the U.S. Occupational Safety and Health Administration (OSHA). Governor Abbott’s executive order plainly conflicts with President Biden’s mandate and OSHA’s regulations. Article 6, Section 2 of the U.S. Constitution, known as the Supremacy Clause, provides: “The Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The effect of the Supremacy Clause is that all laws, regulations, rules and orders created and enforced by the federal government override conflicting rules created by the various states. As the U.S. Supreme Court has noted, “. . . since our decision in M’Culloch v. Maryland, it has been settled that state law that conflicts with federal law is ‘without effect.’” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992).
For this reason, the courts certainly will strike down Governor Abbott’s invalid order, and neither Bell nor any other Texas employer will be required to comply with it. All federal contractors must comply with President Biden’s order or risk losing their federal contracts. Our jobs depend on Bell’s contracts.