By: Michael Boldin
CONCORD, N.H. (March 19, 2022) – On Wednesday, the New Hampshire House passed a bill to ban state and local enforcement of a federal vaccine mandate, an important first step to nullify it in practice and effect.
Introduced by Speaker Packard along with five cosponsors, House Bill 1455 (HB1455) would prohibit “state enforcement of any federal law, order, or rule that requires an individual, as a condition of employment or any other activity, to provide proof of vaccination against COVID-19 or to submit more than once per month to COVID-19 testing.”
Such prohibited activities under the proposed law would include, but are not limited to:
(a) Investigating the violation of, or imposing any penalty
(b) Providing any assistance to any federal department or agency in investigating or penalizing either through personnel activity or through the use of any state or local government property
(c) Providing the COVID-19 vaccination status of any named individual to any federal department or agency, or engaging in any communication with any federal department or agency regarding any investigation into a violation
Previously, the House Health, Human Services and Elderly Affairs Committee narrowly approved the bill, voting 11-10 to give the full House an Ought to Pass (OTP) recommendation. And on March 16, the full House passed the bill with a vote of 174-159.
VACCINE MANDATE POTENTIAL AND ENFORCEMENT
Although the Supreme Court earlier this year rejected the Biden Administration’s workplace vaccine mandate for all businesses with 100 or more workers, it’s unlikely that the current or a future administration won’t modify it and try again since the Court left open a wide path for them to do so.
Tenth Amendment Center national communications director Mike Maharrey said that while people seem to think the threat has passed, the door is open for another mandate down the road. “States need to quit just reacting to federal overreach and acting like everything is OK when there isn’t any immediate threat. There is always a threat when it comes to the feds. That’s why it’s crucial to build a firewall against the next attempted mandate,” said Maharrey.
Regarding any workplace mandate, OSHA has an Achilles heel, a serious lack of enforcement capability.
OSHA only employs 774 inspectors for the entire country. Approximately 1,200 more work for the states but enforce OSHA rules. That small force of inspectors must cover more than 7 million businesses. Currently, it would take them 160 years to inspect every business under its jurisdiction just one time. That’s why the feds will have to rely on snitches to have any hope of enforcing the vaccine mandate.
“There is no army of OSHA inspectors that is going to be knocking on employers’ doors or even calling them,” a former OSHA chief of staff told CBS News regarding the failed workplace mandate. “They’re going to rely on workers and their union representatives to file complaints where the company is totally flouting the law.”
Implementation and enforcement of OSHA regulations can be done on either a state or a federal level. New Hampshire is one of 28 states where OSHA has full enforcement responsibility. But even in such states, OSHA receives assistance and cooperation from state agencies and employees. The passage of HB1455 would withdraw any and all state and local support from enforcing vaccine mandates.
This would leaves OSHA in a bad position, at best.
Here’s the dirty little secret they don’t want you to know — partnerships and “team efforts” don’t work when half the team quits.
If employees refuse to tell on their coworkers and employers, and if states refuse to help enforce the vaccine mandates, the vaccine mandates won’t be enforced.
End of story.
State action can set the stage to nullify the vaccine mandate in practice and effect.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” is an extremely effective method to hinder the enforcement of any federal action because most enforcement relies on help, support and leadership from the states. This is true of virtually every federal law, and it will clearly be the case with the vaccine mandates.
Human action is also key. States can ban enforcement help all they want, but if everyone still complies, there’s nothing to enforce. In order to nullify the mandate, people must reject and resist it first and foremost.
The state of New Hampshire can refuse to use state personnel or resources for the enforcement of any federal act whether it was first deemed constitutional or not.
Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
If New Hampshire doesn’t want to enforce vaccine mandates, it doesn’t have to — no matter what a federal court says about the constitutionality of such mandates.
The bill will now move to the Senate for further consideration.