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Question about vaccine mandate in states that prohibit vaccines

Amanda Karras

Fri, Nov 5, 2021 7:59 PM

Thanks,
Amanda

Amanda Kellar Karras
Deputy General Counsel /
Director of Legal Advocacy
P: (202) 466-5424 x7116
Email: akarras@imla.org
[facebook icon]https://www.facebook.com/InternationalMunicipalLawyersAssociation/[twitter icon]https://twitter.com/imlalegal[linkedin icon]https://www.linkedin.com/company/international-municipal-lawyers-association-inc./

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Rockville, MD, 20850
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A member is wondering how other local governments are handling the new CMS vaccine mandate for healthcare workers if you are in a state that specifically prohibits vaccine mandates. If you are in this scenario, have you determined that the vaccine mandate is applicable to your city/county healthcare workers? The FAQs for the CMS rule take the position that the Supremacy Clause governs. But the member is wondering what local governments are going to do in these situations where their state has taken a contrary position. Please send me your responses to akarras@imla.org<mailto:akarras@imla.org> and I'll pass them along. Thanks, Amanda Amanda Kellar Karras Deputy General Counsel / Director of Legal Advocacy P: (202) 466-5424 x7116 Email: akarras@imla.org [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [logo]<https://imla.org/> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<http://www.imla.org/> Plan Ahead! IMLA's Mid-Year Seminar, April 8-11, 2022 in Washington DC! IMLA's 87th Annual Conference<https://imla.org/annual-conference/>, Oct. 19-23, 2022 in Portland, OR!

Brett Kriger

Fri, Nov 5, 2021 8:15 PM

Articles
Preamble
I. Legislative Branch
II. Executive Branch
III. Judicial Branch
IV. States, Citizenship, New States
V. Amendment Process
VI. Debts, Supremacy, Oaths, Religious Tests
VII. Ratification
Amendments

COMMON INTERPRETATION
The Supremacy Clause

by Caleb Nelson
Emerson G. Spies Distinguished Professor of Law at the University of Virginia School of Law

by Kermit Roosevelt
Professor of Law at the University of Pennsylvania Law School

When the Philadelphia Convention got under way in May 1787, Governor Edmund Randolph of Virginia presented what has come to be known as “the Virginia plan”—a collection of resolutions forming a blueprint for the Constitution. As amended a few days later, one of the resolutions included the following proposal: “the National Legislature ought to be impowered . . . to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union, or any treaties subsisting under the authority of the Union.”

At first, supporters of this idea seemed optimistic about its chances. In early June, indeed, Charles Pinckney and James Madison moved to extend the proposed congressional “negative” so as to reach all state laws that Congress deemed “improper.” This motion, however, went down to defeat. The next month, over Madison’s objections, the Convention rejected the narrower version of the power too. In place of the proposed congressional “negative,” the Convention approved a precursor of the Supremacy Clause. That Clause went through various changes in the ensuing months, but the final version says:

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.

Instead of giving Congress additional powers, the Supremacy Clause simply addresses the legal status of the laws that other parts of the Constitution empower Congress to make, as well as the legal status of treaties and the Constitution itself. The core message of the Supremacy Clause is simple: the Constitution and federal laws (of the types listed in the first part of the Clause) take priority over any conflicting rules of state law. This principle is so familiar that we often take it for granted. Still, the Supremacy Clause has several notable features.

To begin with, the Supremacy Clause contains the Constitution’s most explicit references to what lawyers call “judicial review”—the idea that even duly enacted statutes do not supply rules of decision for courts to the extent that the statutes are unconstitutional. Some scholars say that the Supremacy Clause’s reference to “the Laws of the United States which shall be made in Pursuance [of the Constitution]” itself incorporates this idea; in their view, a federal statute is not “made in Pursuance [of the Constitution]” unless the Constitution really authorizes Congress to make it. Other scholars say that this phrase simply refers to the lawmaking process described in Article I, and does not necessarily distinguish duly enacted federal statutes that conform to the Constitution from duly enacted federal statutes that do not. But no matter how one parses this specific phrase, the Supremacy Clause unquestionably describes the Constitution as “Law” of the sort that courts apply. That point is a pillar of the argument for judicial review. In addition, the Supremacy Clause explicitly specifies that the Constitution binds the judges in every state notwithstanding any state laws to the contrary.

Under the Supremacy Clause, the “supreme Law of the Land” also includes federal statutes enacted by Congress. Within the limits of the powers that Congress gets from other parts of the Constitution, Congress can establish rules of decision that American courts are bound to apply, even if state law purports to supply contrary rules. Congress also has at least some authority to put certain topics wholly off limits to state law, or otherwise to restrict what state law can validly say about those topics. As long as the directives that Congress enacts are indeed authorized by the Constitution,

On Nov 5, 2021 3:00 PM, Amanda Karras akarras@imla.org wrote:
A member is wondering how other local governments are handling the new CMS vaccine mandate for healthcare workers if you are in a state that specifically prohibits vaccine mandates. If you are in this scenario, have you determined that the vaccine mandate is applicable to your city/county healthcare workers? The FAQs for the CMS rule take the position that the Supremacy Clause governs. But the member is wondering what local governments are going to do in these situations where their state has taken a contrary position. Please send me your responses to akarras@imla.org mailto:akarras@imla.org and I’ll pass them along.

Thanks,
Amanda

[logo]https://imla.org/
51 Monroe St. Suite 404
Rockville, MD, 20850
www.imla.org http://www.imla.org/
Plan Ahead!
IMLA’s Mid-Year Seminar, April 8-11, 2022 in Washington DC!
IMLA’s 87th Annual Conferencehttps://imla.org/annual-conference/, Oct. 19-23, 2022 in Portland, OR!

This effort to treat an OSHA rule as though it were part of the Constitution or a law enacted by Congress will certainly end up in the courts. Different states will likely go along with the effort or oppose it based on political affiliation. The Supremacy Clause unambiguously apples only to federal constitutional powers and laws enacted by Congress. Articles Preamble I. Legislative Branch II. Executive Branch III. Judicial Branch IV. States, Citizenship, New States V. Amendment Process VI. Debts, Supremacy, Oaths, Religious Tests VII. Ratification Amendments COMMON INTERPRETATION The Supremacy Clause by Caleb Nelson Emerson G. Spies Distinguished Professor of Law at the University of Virginia School of Law by Kermit Roosevelt Professor of Law at the University of Pennsylvania Law School When the Philadelphia Convention got under way in May 1787, Governor Edmund Randolph of Virginia presented what has come to be known as “the Virginia plan”—a collection of resolutions forming a blueprint for the Constitution. As amended a few days later, one of the resolutions included the following proposal: “the National Legislature ought to be impowered . . . to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union, or any treaties subsisting under the authority of the Union.” At first, supporters of this idea seemed optimistic about its chances. In early June, indeed, Charles Pinckney and James Madison moved to extend the proposed congressional “negative” so as to reach all state laws that Congress deemed “improper.” This motion, however, went down to defeat. The next month, over Madison’s objections, the Convention rejected the narrower version of the power too. In place of the proposed congressional “negative,” the Convention approved a precursor of the Supremacy Clause. That Clause went through various changes in the ensuing months, but the final version says: 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. Instead of giving Congress additional powers, the Supremacy Clause simply addresses the legal status of the laws that other parts of the Constitution empower Congress to make, as well as the legal status of treaties and the Constitution itself. The core message of the Supremacy Clause is simple: the Constitution and federal laws (of the types listed in the first part of the Clause) take priority over any conflicting rules of state law. This principle is so familiar that we often take it for granted. Still, the Supremacy Clause has several notable features. To begin with, the Supremacy Clause contains the Constitution’s most explicit references to what lawyers call “judicial review”—the idea that even duly enacted statutes do not supply rules of decision for courts to the extent that the statutes are unconstitutional. Some scholars say that the Supremacy Clause’s reference to “the Laws of the United States which shall be made in Pursuance [of the Constitution]” itself incorporates this idea; in their view, a federal statute is not “made in Pursuance [of the Constitution]” unless the Constitution really authorizes Congress to make it. Other scholars say that this phrase simply refers to the lawmaking process described in Article I, and does not necessarily distinguish duly enacted federal statutes that conform to the Constitution from duly enacted federal statutes that do not. But no matter how one parses this specific phrase, the Supremacy Clause unquestionably describes the Constitution as “Law” of the sort that courts apply. That point is a pillar of the argument for judicial review. In addition, the Supremacy Clause explicitly specifies that the Constitution binds the judges in every state notwithstanding any state laws to the contrary. Under the Supremacy Clause, the “supreme Law of the Land” also includes federal statutes enacted by Congress. Within the limits of the powers that Congress gets from other parts of the Constitution, Congress can establish rules of decision that American courts are bound to apply, even if state law purports to supply contrary rules. Congress also has at least some authority to put certain topics wholly off limits to state law, or otherwise to restrict what state law can validly say about those topics. As long as the directives that Congress enacts are indeed authorized by the Constitution, On Nov 5, 2021 3:00 PM, Amanda Karras <akarras@imla.org> wrote: A member is wondering how other local governments are handling the new CMS vaccine mandate for healthcare workers if you are in a state that specifically prohibits vaccine mandates. If you are in this scenario, have you determined that the vaccine mandate is applicable to your city/county healthcare workers? The FAQs for the CMS rule take the position that the Supremacy Clause governs. But the member is wondering what local governments are going to do in these situations where their state has taken a contrary position. Please send me your responses to akarras@imla.org<mailto:akarras@imla.org> and I’ll pass them along. Thanks, Amanda Amanda Kellar Karras Deputy General Counsel / Director of Legal Advocacy P: (202) 466-5424 x7116 Email: akarras@imla.org [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [logo]<https://imla.org/> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<http://www.imla.org/> Plan Ahead! IMLA’s Mid-Year Seminar, April 8-11, 2022 in Washington DC! IMLA’s 87th Annual Conference<https://imla.org/annual-conference/>, Oct. 19-23, 2022 in Portland, OR!