Utah leaders want to block Biden’s vaccine plan. Can they?

Former federal judge says state government doesn’t have much room to maneuver.

(Trent Nelson | The Salt Lake Tribune) Lindsay Brown prepares a dose of the Pfizer COVID-19 vaccine at a drive-thru event organized by the Utah County Health Department in Spanish Fork on Friday, Sept. 10, 2021.

President Joe Biden’s proposed vaccine or testing mandate for large businesses had barely been announced when the howls of outrage started coming from Utah Republicans. Attorney General Sean Reyes threatened legal action. Gov. Spencer Cox said he disagreed with the program.

The GOP-controlled legislature also began exploring how to push back against what they described as an unconstitutional overreach. Lawmakers are planning a special committee hearing on Oct. 4 to gather public input on a possible response. But, it’s not clear what else they can do.

Biden’s directive, which has not been made public, would require private businesses with 100 or more employees to either require all workers to be vaccinated or undergo weekly testing for COVID-19.

The most direct and likely pushback from Utah against the policy would be a lawsuit. Attorney General Sean Reyes has joined with 24 other state attorneys general in threatening such a lawsuit.

University of Utah law professor Paul Cassell says he believes what Biden is proposing is unconstitutional, but he is not sure a state lawsuit would be the most effective path.

“It’s a question of who would have legal standing to pursue that case,” Cassell says. “It would be a much easier challenge for a business owner. It’s not instantly clear how the state is being harmed by a private employer mandate.”

Cassell, who was a federal judge from 2002 to 2007, says while the Legislature or other state officials may be champing at the bit to get involved in the fight, he doesn’t see much opportunity for them.

“I suppose the state could make a federalism argument — that the federal government is infringing on activities that have traditionally been up to the state. But, as a practical matter, I expect any legal reaction to come much more swiftly from individual businesses that are directly impacted,” Cassell says. “This is the kind of sweeping program that will be immediately challenged all over the country.”

Cassell believes what Biden is proposing will be blocked on constitutional grounds since the president is assuming an authority that is not specifically spelled out in the law.

The Legislature may find itself without any direct routes to challenge Biden’s rule. Any law they pass would be unenforceable as the Supremacy Clause in the Constitution says state law is subordinate to federal statute. They could approve a resolution, but that would not carry the force of law behind it.

The whole situation highlights the political tightrope leaders are attempting to walk. While they are encouraging Utahns to get vaccinated, many fervently believe a mandate is a bridge too far.

“You’re not going to move the needle by forcing people to do this,” Senate President Stuart Adams, R-Layton, says.

Adams acknowledges getting more Utahns vaccinated against the virus is the fastest way to put the pandemic in the rearview mirror, but he thinks requiring the vaccine will just cause those opposed to dig in their heels. He would rather resort to persuasion rather than a mandate.

“If we can find a way to sell this (the vaccine) in a positive light, our vaccination numbers will go up,” Adams says.

Adams does think a mandate would work if there were certain exemptions available.

“I’d favor a mandate if there were step-offs for religious reasons, health reasons or personal reasons,” Adams explains.

The first two are long-standing exemptions supported by the Constitution. But allowing people to opt-out for personal reasons defeats the whole purpose.

“It’s not a mandate if it’s not a mandate,” Cassell says. “If you can refuse to do something because you just don’t want to do it, then what’s the point of a mandate?”