Mandating No Mandates


Tennessee’s place in the battle of vaccination requirements

At a hotel in a politically blue state, when I went to use the fitness center, the desk clerk said no ID and COVID-19 vaccination card, no entry. I’d planned to exercise; I didn’t think to carry the proper papers. At my wife’s suggestion, I had a smartphone photo of my vaccination card, and as a registered guest, surely the ID wasn’t necessary. Yes, it was. I searched my phone, finding a photo of an old ID. From behind her mandated mask, the desk clerk asked, “Is it expired?”

“It may be, but I’m not, and that’s clearly me,” I said. After green-lighting me to use the fitness center, she leaned forward and whispered, “We think it’s nuts, too, and we can’t wait until this governor is gone.”

While blue states have leaned toward toeing a mandate line, many red states have objected on the grounds of constitutionality, freedom, and individual right to privacy. Tennessee’s officials even calling a special legislative session to address the issue. 

A result: on November 10, Gov. Bill Lee signed into law restrictions on what can, and can’t, be done to Tennesseans in the name of protecting them from COVID-19. For example, while not denying employers the ability to issue vaccination mandates, the law says, “A private business, governmental entity, school, or local education agency shall not compel or otherwise take an adverse action against a person to compel the person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason.” 

This is pushback at what’s happening at the federal level. President Joe Biden once said he opposed vaccine mandates. “No—I don’t think it should be mandatory.
I wouldn’t demand it to be mandatory,” Biden said on Dec. 4, 2020. However, by September 2021, he was mandating vaccinations for federal employees and vendors as well as private businesses with more than 100 employees. He also sent a message to unvaccinated Americans: “Our patience is wearing thin.” 

Government leaders often mistakenly believe that they need only issue an order and everyone in a city, county, state, or country will fall into line, quick-smart. But no. Laws and government rules and regulations are a giant maze built with walls of legal language which can sometimes be breached. This twisty-turny mandate environment is described in an Oct. 22, 2021, article published by The Commonwealth Fund, “COVID-19 Vaccine Mandates and Incentives Under Federal Law.”

A salient paragraph: “Employers who impose vaccine mandates or offer incentives, however, must navigate a complex web of legal requirements. Their ability to impose mandates is limited by the Americans with Disabilities Act (ADA) and Title VII’s prohibitions against disability and religious discrimination. Vaccine incentive programs are governed by the Affordable Care Act (ACA) prohibition against health status discrimination. An employee vaccination program also may violate medical privacy rules under ADA, Health Insurance Portability and Accountability Act (HIPAA), and Genetic Information Non-Discrimination Act (GINA) regulations.” Clearly, mandates aren’t as simple as they might seem.

With respect to federal over state authority, the National Constitution Center points to the Congressional Research Service saying that, “With few exceptions, the CRS says there are no laws that allow the federal government to issue a vaccine mandate to the general population.” However, it says vaccine mandates are possible through the Department of Health and Human Services or the CDC, regulations even under the Commerce Clause. This runs smack into states, such as Tennessee, passing state laws against mandates. 

The issue for many isn’t one of COVID-19 and the complexities of vaccinating hundreds of millions of people: it’s often a chance to bash someone’s political opposites. Those vocal about opposing a vaccine mandate might be identified as mindless reactionaries who care little about the health of others, and those vocally in favor of vaccine mandates may be tabbed as authoritarian, mind-controlling Big Brother clones out of George Orwell’s “1984.” Most people aren’t in either camp, however. They’re simply unnoticed because they don’t make noise.  

Inevitably, practical considerations show themselves. To what degree are the unvaccinated likely to be separated from society and denied the ability to work, enter a store, go to a restaurant, fly on a plane? And for that matter, to what degree might the vaccinated be separated from those who oppose the vaccine? Should everyone be forced to wear an identifiable symbol on their clothing with their vaccine status? 

Tennessee’s current elected representative majority have confronted these issues and decided there are lines over which government cannot cross to impose its will on citizens. There will never be universal agreement. They exercised their responsibilities, as they see them, to safeguard Tennesseans’ rights by mandating no ID or vaccination card required.   

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