Texas governor opens new front on vaccine mandates

Texas Gov. Greg AbbottGreg AbbottAbbott signs new Texas congressional maps into law The Memo: Will COVID-19's dip boost Biden? GOP leaders escalate battle against COVID-19 vaccine mandates MORE (R) is opening a new front in the war over vaccine mandates, setting up a showdown with the Biden administration.

Abbott on Monday issued an executive order banning COVID-19 vaccine mandates by any “entity in Texas,” including private businesses. That order conflicts with a forthcoming federal regulation announced by President BidenJoe BidenOvernight Energy & Environment — Presented by American Clean Power — Methane fee faces negotiations White House rejects latest Trump claim of executive privilege The No Surprises Act:  a bill long overdue MORE to require that businesses with 100 or more employees ensure their workers are vaccinated or get tested weekly.

Abbott’s move is an escalation in the Republican battle against vaccine mandates, something that many public health experts view as a key tool in the fight against the pandemic, given that voluntary efforts like incentives have hit their limits. The politicization of vaccine mandates could also undermine vaccination efforts even for other diseases, some experts warn. 

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“In yet another instance of federal overreach, the Biden Administration is now bullying many private entities into imposing COVID-19 vaccine mandates,” Abbott wrote in the order. 

On Tuesday, Florida Gov. Ron DeSantisRon DeSantisThe Hill's Morning Report - Presented by Facebook - Biden, Democrats inch closer to legislative deal Democrats face growing hurdles in bid to oust DeSantis DeSantis eyes ,000 bonus for unvaccinated police to relocate to Florida MORE (R), who like Abbott has also pushed back on local mask mandates and vaccine passports, floated the idea of a similar move against vaccine mandates in his state, though he said it would likely require the state legislature to act.

“I think you need a law to be able to just say you shouldn’t be terminated for this reason,” DeSantis said, according to Bloomberg.

The White House quickly pushed back against both governors, saying it would continue with implementation of the federal regulation.

“Over 700,000 American lives have been lost due to COVID-19, including more than 56,000 in Florida and over 68,000 in Texas, and every leader should be focused on efforts to save lives and end the pandemic,” White House press secretary Jen PsakiJen PsakiDemocrats ready to put a wrap on dragged-out talks 'Saturday Night Live' flashes back to the 'ghost of Biden past' Unanswered questions remain for Buttigieg, Biden on supply chain catastrophe MORE said. “Why would you be taking steps that prevent the saving of lives that make it more difficult to save lives across the country or in any state?”

Public health experts have largely praised the role of vaccine mandates as the virus continues to kill almost 2,000 Americans, mostly unvaccinated people, every day.

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“We’re still at a high level of transmission in the nation and in Texas only one half of the population is vaccinated,” tweeted Peter Hotez, a professor at the Baylor College of Medicine in Texas. “We need all tools possible, including vaccine mandates, to close the gap and halt COVID-19 transmission here.”

Democrats are touting vaccine mandates as a popular issue that is key to public health, bashing Republicans over their resistance to mandates. A Gallup poll last month found that 58 percent of the public supports vaccine mandates for businesses with 100 or more workers, with 42 percent opposed.

The issue has taken center stage in the closely watched Virginia governor’s race, where Democratic nominee Terry McAuliffe has launched ads against Republican Glenn Youngkin for his opposition to vaccine mandates. 

“Right here in this county, all the ICU beds are full,” McAuliffe said in a debate last month. “So I am for requiring, mandate vaccinations. He's not. He likes to do PSAs. PSAs aren't going to get you anything.”

Youngkin countered that he has been a “strong, strong advocate for everyone to get the vaccine” but that “individuals should be allowed to make that decision on their own.”

Every Republican senator last month voted for an amendment to block Biden’s regulation on businesses for vaccine mandates, with every Democrat opposing the amendment. 

Asked about the Texas order on CNBC on Tuesday, Scott Gottlieb, the former Food and Drug Administration commissioner in the Trump administration, said he disagreed with Abbott’s order and worried about the broader implications of vaccines becoming politicized.

“I think we're going to see this fight over vaccines bleed into other realms, vaccinations for children, vaccinations for flu, and we're going to see vaccination rates decline across the country now that this is something that people think defines their political virtue,” Gottlieb said.

“I don't think governors should be stepping in to block private businesses from imposing mandates,” he added, while noting he also does not think the Biden administration should require businesses to have mandates, arguing it should instead leave it up to businesses. 

Mark Jones, a political scientist at Rice University, noted that Abbott’s move comes as he is facing two primary challengers from his right in Don Huffines, a former state senator, and Allen West, a former congressman.

“They are hammering Abbott from the right on anything related to COVID-19 that they consider to be insufficiently conservative,” Jones said.

“Abbott’s both supporting the base's position in opposition to vaccine mandates, but also more generally picking a fight and battling the Biden administration,” he added.

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There are also legal questions about the extent to which Abbott’s order will actually have an effect, and it is expected to face challenges in the courts.

Lawrence Gostin, a health law expert at Georgetown University, said that even if the Texas Legislature codified the action in law to give Abbott stronger legal footing, the Biden administration’s pro-mandate regulation “would preempt and supersede the Texas law under the Supremacy Clause of the US Constitution.”

Texas’s move “does put a business in a tough position because they're asked by the federal government and the state to march north and south at the same time,” Gostin added.

Still, he said he expects businesses’ legal counsel will tell them that the federal regulation, which is still in the process of being issued, prevails. 

Already, two major airlines based in Texas, Southwest Airlines and American Airlines, said Tuesday they would continue with their vaccine mandates for employees.

“We are reviewing the executive order issued by Gov. Abbott, but we believe the federal vaccine mandate supersedes any conflicting state laws, and this does not change anything for American,” a spokesperson for American said.