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Kansas AG Derek Schmidt makes a good case: Let the courts decide on COVID-19 mandates

·3 min read
John Hanna/Associated Press file photo

Nearly two years in, it would be nice — and just might save lives — if we could agree on how to fight the COVID-19 pandemic. But our disagreements are growing almost as fast as the variants.

It sure doesn’t help when the bickering is needless and counterproductive — such as the failed lawsuit by the Northland Parents Association challenging Kansas City-area school mask mandates. A federal judge dismissed the suit Monday, and now Kansas City is wisely poised to extend its mandate another 30 days past its Thursday expiration date.

Trouble is, not all mandates are created equal, or maybe even lawful. Many of our COVID disputes are indeed warranted, if for no other reason than to set reasonable limits on governmental power even in a pandemic.

Last week, a judge in Cole County, Missouri, ruled that all local COVID restrictions in the state issued by unelected officials are illegal. On Monday, a U.S. judge in Missouri temporarily blocked a federal vaccine mandate for health care workers, effective in 10 states including Missouri and Kansas. Tuesday, a federal judge in Louisiana blocked it in the other 40 states. The courts have also stayed an Occupational Safety and Health Administration order that employers of 100 or more require COVID-19 vaccines or weekly testing.

These cases all raise vital questions about the power of government. The questions demand answers. The pandemic will end after all, while governmental powers rarely do.

Absent an explicit and specific act of Congress, does OSHA really have the authority to promulgate vaccine mandates? (And what is magic, from a scientific standpoint, about the order’s 100-employee level?) Can the Centers for Medicare & Medicaid Services really order the immunizations of health care workers?

I suspect those two agencies may have more authority to issue such mandates than the Centers for Disease Control and Prevention did to issue a moratorium on evictions. But my suspicions don’t mean a thing legally. And as much as it interferes with efforts to control the spread of COVID, such governmental powers must be tested in the courts.

Kansas Attorney General Derek Schmidt sure makes a good case for doing so, and is involved in lawsuits challenging the OSHA and CMS mandates, as well as a third case challenging a vaccine mandate for federal contractors. A hearing in the latter case takes place Friday, after a judge already blocked the contractor mandate in Kentucky, Ohio and Tennessee.

The lawsuits challenge both the agencies’ authority to issue the mandates and alleged shortcuts they took in issuing them.

“There is no pandemic exception to the Constitution or the rule of law,” Schmidt says. “Some of the most regrettable errors in government action in the course of our history have occurred in response to emergencies. We need to follow the rule of law even more diligently in times of stress than we do in ordinary times — because times of stress are when people are tempted to disregard boundaries and set precedents that have long-term detrimental consequences to ordered liberty.”

Schmidt also argues that although vaccine mandates may not cripple big health care facilities, they can pose existential threats to small and rural ones that can’t afford to lose even a few workers to mandate refusals.

I’ve heartily supported mask mandates and urged voluntary vaccines. But vaccine mandates are a whole other ballgame, and certainly any such dictates by unelected officials simply must be cleared by the courts — if they even can be.

Yes, a debilitating, sometimes deadly virus is still in the wind. But our rights are up in the air, too.

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