State Anti-Vaccine Mandate Laws May Not Survive Federal Lawsuits

A 5-dose vial of the Pfizer COVID-19 vaccine is held in Los Angeles, Calif., on Sept. 21, 2021. Frederic J. Brown/AFP via Getty Images

State laws that oppose President Joe Biden’s vaccine mandates have added another layer on to a complex legal situation, but an expert says they may fail to stop federal law.

Recently, seven conservative states have passed bills making it easier for businesses, and individuals, to oppose the Biden administration’s vaccine mandates.

The states are Tennessee, Kansas, Florida, Iowa, Kentucky, Wyoming, and North Dakota.

Right now, these laws stand after the Occupational Safety and Health Administration (OSHA) suspended the federal vaccine mandate following numerous lawsuits.

It remains unclear whether Biden’s mandate will survive the courts.

But if it does, state laws will likely face a federal lawsuit, said William Rutchow, a lawyer at business law firm Ogletree Deakins.

The states will probably lose it, Rutchow said.

“As a general rule, if a federal statute and a state statute are in direct conflict, then the federal statute takes precedent and preempts the state statute,” Rutchow said.

“There are a lot of subtleties to that when you’re talking about a specific law or regulation.”

Under the Constitution’s Supremacy Clause, federal law is the “supreme law of the land” over state laws.

In several legally important cases, this rule previously resulted in federal rules overriding state ones.

Tennessee’s anti-mandate law already has an exemption for federal contractors so they can obey federal mandates, said John Dunn, the director of communications for the Tennessee Comptroller of the Treasury.

“Businesses that have federal contracts can apply to our office to receive an exemption and remain in compliance with the state law,” he said.

Despite the risk of a federal override, the seven conservative states with anti-mandate laws chose to take drastic action.

Each state called an emergency session of the legislature in response to the federal mandate.

Although the state laws may not be able to block the mandate, business owners should obey them for now, said Rutchow.

“As of right now, there is no countervailing federal law—because the OSHA emergency temporary standard has been stayed, because of the litigation that is pending against it.”

Rutchow said he thought the seven states passed these laws quickly because of politics.

“There’s a large piece of this that is political,” he said.

“President Biden is a Democrat. Most of the states, including Tennessee, that have enacted state laws go in the other direction.”

These contradicting mandates some institutions and businesses caught in between.

Already, the University of Tennesee at Knoxville ended mask mandates to obey the Tennessee law, then started them again 24 hours later to obey the Biden administration.

Businesses will have to wait and see, said Rutchow.

“Something’s going to have to give,” he said. “I can’t predict now what will happen.”