Governor Abbott’s Dubious Executive Order Prohibiting Compelled Vaccination

O n Monday, Texas governor Greg Abbott issued an executive order that has been described by his staff as “prohibiting vaccine mandates” by even private businesses — i.e., as a prohibition on vaccination as a condition of employment. Literally, however, the order does not do that. It merely states that no one can force another person to be vaccinated, which is a different thing.

The operative part of Abbott’s order follows a series of “whereas” clauses that lay out why the governor has decided to take action. One of these does indeed complain that “in yet another instance of federal overreach, the Biden Administration is now bullying many private entities into imposing COVID-19 vaccine mandates.” This, he says, is “causing workforce disruptions” and contributing to the fear many Texans have about “losing their livelihoods.” Those most worried are Texans who object to being vaccinated “for reasons of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”

The governor thus seems to be making a case for outlawing mandates that lack exemptions based on religious convictions and health risks. I’d note that the least controversial government-imposed mandates have included these two exemptions.

There are important differences, though. First, Abbott is issuing the exact opposite of a vaccine mandate — he wants instead to say something like, “You can’t mandate unless you include these exemptions.” Second, states that have issued vaccine mandates have mainly targeted state employees and contractors, or students at state schools; Abbott purports to be issuing his directive to private companies, regardless of whether they have business with the state. Third, the health exemption featured in other states’ mandates generally relates to situations in which the person has some medical condition that would make the vaccine risky; Abbott’s exemption is broader, pointedly including people for whom the vaccine is not so much risky as unnecessary, they contend, because they now have natural immunity from having previously been infected by COVID-19.

All that said, after the discussion of mandates in the whereas clauses, Abbott does not mention mandates in the provision articulating his directive. Instead, he asserts, “No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination” based on the afore-described religious or health reasons.

Let’s set aside the oddity of invoking the word can rather than may. (Legal conditions are concerned with what is permissible, not what it is physically possible.) Abbott’s order does not, on its face, prohibit private businesses from mandating vaccines as a condition of employment. It says that any “entity” — which obviously can include private businesses — is barred from forcing a person to be vaccinated (“compel[ling] receipt of a COVID-19 vaccine”).

This may sound punctilious, but the law may not be vague about what it is prohibiting, especially when a hefty fine for noncompliance is contemplated (as it is in this case). When it gets down to brass tacks, all Abbott’s order says is that a person cannot be forced by his private employer, or anyone else, to be vaccinated. It does not say that a private employer is prohibited from terminating an employee who refuses to get vaccinated. Saying, “No one can make you get vaccinated,” is different from saying, “No one may fire you for refusing to get vaccinated.”

As a side note, another oddity of Abbott’s order is its treatment of the state legislature. In the whereas clauses, the governor asserts legislative supremacy: Pursuant to state law, “the legislature has established its primary role over immunizations, and all immunization laws and regulations in Texas stem from the laws established by the legislature.” But in the enforcement provisions, Abbott then presumes to suspend state laws, which he just got finished saying were supreme, to the extent that those laws might enable local officials to impose restrictions inconsistent with Abbott’s order. So, who is supreme — the people’s representatives enacting laws, or the governor unilaterally issuing orders?

In any event, I believe the governor is going to have a hard time persuading courts to uphold his order as a prohibition on mandates. To the extent his office is hyping it as an “Executive Order Prohibiting Vaccine Mandates,” it fails to do that in clear language.

If upheld, though, the practical consequences of this decision would be disturbing for progressives and conservatives. The former, clearly, have no compunction about running roughshod over individual autonomy and medical privacy in dictating what they see as the promotion of public health. But conservatives will rightly wonder why an individual employee’s personal decision about vaccination should override a private business owner’s decision to require employees to be vaccinated if they want to work at that business. Personal liberty includes economic liberty. An owner may rationally believe a vaccination mandate for employees promotes customer safety, which may help business; and no one is forcing the employee to work for the private owner — the employee can go work someplace else, where the owner’s conditions are more to his liking.

That is to say, Governor Abbott must know that an order against vaccination mandates would be controversial. If he is going to try to impose such a restriction, he shouldn’t mince words. He should clearly state that he is forbidding private businesses to mandate vaccination, and be prepared to live with the blowback.