A conflict regarding COVID vaccination policy has emerged in Texas with implications for the re-emergence of travel. It may also lead to questions from advisors’ clients regarding how to proceed while the controversy works its way through the courts.
I refer to the executive orders issued by Greg Abbott, Governor of Texas, beginning in April 2021, with the most recent action just a few days ago regarding the application of vaccination mandates by firms under the legal jurisdiction of Texas. In April 2021, Abbott forbade any “governmental entity” from requiring anyone to get a COVID vaccination or to require disclosure of one’s vaccination status as a condition to receiving any service or access to any place. Executive Order GA-35, April 5, 2021. An exception from the disclosure provision was created for nursing homes, assisted living and long-term care facilities.
On May 18, 2021, Abbott issued a sweeping prohibition against any Texas government body requiring the wearing of face masks, with some exceptions. Executive Order GA-36. On July 29, 2021, Executive Order 38 restated all of the restrictions on government action to enforce vaccinations, vaccination passports, with the usual exceptions. This Order also made clear that there were no COVID-related restrictions on business operations, and that violations of the Governor’s Executive Orders could not be punished by imposition of jail time in addition to the state financial penalties.
In August, Abbott again repeated the orders that no vaccination could be mandated. and no disclosure of vaccination status could be required in Texas. All contrary orders of local Texas authorities were superseded while the Texas legislature considered the issues. Executive Order GA-39, August 25, 2021.
Faced with the planned imposition of a federal requirement that contractors with the federal government must assure vaccination status of all employees, the Texas Governor issued Executive Order GA-40 extending the prohibitions to any “entity in Texas,” enabling any Texan to refuse vaccination “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”
The issue presented is whether the Governor’s prohibitions on persons and firms can override conflicting federal requirements. This question is destined for resolution by the U.S. Supreme Court as the conflict between federal and state rules appears irreconcilable.
The Supremacy Clause of the U.S. Constitution (Article VI, Clause 2) provides,
This 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.
Without going too deeply into the legal weeds, the Supreme Court has said,
Absent explicit pre-emptive language, we have recognized at least two types of implied pre-emption: field pre-emption, where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, . . . and conflict pre-emption, where compliance with both federal and state regulations is a physical impossibility, . . . or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.
You can read a fine summary of legal principles governing this complex area of law here.
Undoubtedly Texas will devote many words trying to show that either the federal mandates lack the force of federal law or that, even more difficult, that there is no conflict between the federal rules and the Texas approach, or, also challenging, that there is some reason to defer to the state on matters normally falling within the police powers reserved to the states under the Constitution.
If Texas were to prevail, it would create a scenario in which there might be many variable state requirements, and state limitations, controlling how businesses and people respond to COVID. Such variability arguably creates space for the mutation of the virus and prolonging of the pandemic. That said, many people appear to believe that state primacy is the most important consideration. I don’t propose to resolve the dispute here but simply to delineate the nature of the problem.
I am, however, reassured in my view that federal rules will be upheld by the announcements from American Airlines and Southwest Airlines that they believe the federal requirements must, and will, be treated as supreme. I believe the case for federal supremacy here is compelling but there is no doubt that the conflict is complex.
Many consumers will likely be both confused and frustrated by the continuing uncertainty arising from this conflict. There is no escape, however, from the reckoning that must now occur in the highest court. That will take some time, likely some months at least, for final resolution, given that the stakes are so high.
The best and safest path for advisors in the interim is to, whenever possible, encourage consumers to get vaccinated. Those who are vaccinated will have the easiest time regardless of who wins the legal battle. Advisors who give such advice need not side with one or the other political positions. In the travel setting, the question is a practical one. No one who is vaccinated is going to lose access to any service, whereas the unvaccinated will be at risk that a final decision in favor of the federal approach will leave them with disrupted plans and perhaps no time to recover.
Therefore, absent a genuine basis for exemption, a complex subject in itself, the safest course for the advisor is to recommend vaccination. As time passes, many more businesses, including restaurants and entertainment venues, are requiring proof of vaccination, and advisors do not want their clients taken by surprise at their destination.