Abbott Claims Power to Ban Vaccine Mandates by Private Businesses

Texas Governor Greg Abbott issued an executive order Monday purporting to ban vaccine mandates, a move that runs counter to federal court rulings authorizing private businesses to require their employees to receive the vaccine.

In his order, Abbott didn’t say specifically why he thought he had the power to ban vaccine mandates, but instead cited vaguely “the power and authority vested in me by the Constitution and laws of the State of Texas.”

He also said that businesses that fail to comply with his order will be subject to a maximum fine of $1,000 under section 417.173 of the Government Code, also called the Disaster Act. That section says, “A state, local, or interjurisdictional emergency management plan may provide that failure to comply with the plan or with a rule, order, or ordinance adopted under the plan is an offense (punishable by up to 180 days in jail or a fine of $1,000).”

One of Abbott’s other executive orders under the Disaster Act recently has been flaunted by some school districts. They are requiring face masks in spite of Abbott’s order to the contrary. Throughout the pandemic the governor has claimed expansive powers under a specific provision of the Disaster Act that allows him to suspend regulatory statutes.

However, because the vaccine mandates derive from private corporate action and not from Texas statute, that provision wouldn’t apply in this case.

In a separate message to the Secretary of the Senate on Monday, Abbott added the same issue to the agenda for the ongoing third special session of the legislature. He asked the legislature to consider “legislation establishing that 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 for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”

The move suggests that Abbott is aware that his executive order isn’t largely symbolic and stands a better chance of holding up in court if actually passed into law.

Some GOP lawmakers appeared to be annoyed by the governor’s order. Rep. Matt Schaefer tweeted, “COVID vaccine mandates can, and should be addressed by the legislature. But separation of powers should matter to all of us. Executive orders can do the right thing in the wrong way.”

Democrats also pointed to executive overreach but additionally criticized the order for the reason that they thought it was bad public health policy. State Senator Nathan Johnson said, “It’s like the Governor doesn’t want us to get back to the life we wish to have back. Businesses and hospitals are outraged and horrified that he would interfere with private enterprise and public health in one astoundingly ill-conceived, imperial act.”

Increasing numbers of large corporations have begun mandating the vaccine for their employees, including Southwest Airlines and American Airlines, which are headquartered in Texas.