While courts in other states continue to expose what is wrong – legally – with mask and vaccine mandates in schools and other environments, many New Hampshire school districts still insist on masking our children.
Those policies have not gone uncontested, but people tend to invoke or emphasize their Constitutional rights and those arguments are usually unsuccessful. Very few courts have entertained, let alone upheld, them, but why?
Constitutional arguments are often amorphous, too nebulous, and difficult to prove. Consequently, numerous courts in other states have upheld government mandates in response to many different Constitutional challenges.
However, one type of challenge has gained traction: the lack of statutory or regulatory authority.
We want to thank Robert Fojo for this Op-Ed.
Please direct yours toEditor@GraniteGrok.com.
As the United States Supreme Court concluded on January 13, 2022, in National Federation of Independent Business, et al. v. Department of Labor (a decision that stayed a COVID-19 vaccine mandate imposed by the Secretary of Labor and the Occupational Safety and Health Administration [“OSHA”] on employers with over 100 employees), government institutions “are creatures of statute” and “accordingly possess only the authority that Congress has provided.”
In a decision issued last Friday, an Illinois state court judge wrote, “The Court acknowledges the tragic toll the COVID-19 pandemic has taken, not only on this State, but throughout the nation and globe. Nonetheless, it is the duty of the Courts to preserve the rule of law and ensure that all branches of government act within the bounds of the authority granted under the Constitution.”
Several courts in other states have applied these same legal principles to halt mask and vaccine mandates: they concluded the government entity issuing the mandate lacked the statutory authority to impose such a broad health measure. Below are the decisions in which courts have halted mandates on this basis:
- Nat’l Fed’n of Indep. Bus. v. DOL (U.S. Supreme Court, January 13, 2022) (case referenced above): stayed OSHA’s vaccine mandate for large employers because it lacked statutory authority.
- Austin v. Board of Education (Illinois state court, February 4, 2022): temporary restraining order against school vaccine mandate and mask mandate because the state board of education and school districts lacked authority to issue those measures.
- Matt Sitton, et al. v. Bentonville Schools, et al. (Arkansas state court, October 12, 2021): temporary restraining order against school district mask mandate because District lacked the express authority to issue broad health measures.
- Jacob Doyle Corman, III, et al. v. Acting Secretary of the Pa. Dep’t of Health (Pennsylvania appeals court, November 10, 2021) (affirmed by Pennsylvania Supreme Court): declared order by Acting Secretary of the Pennsylvania Department of Health directing all students, teachers, staff, and visitors in schools in the Commonwealth to wear face coverings, regardless of vaccination status, was void and unenforceable because Acting Secretary lacked the statutory and regulatory authority to issue the order.
- State v. Biden (Georgia federal court, December 7, 2021): enjoined Executive Order 14042, which requires contractors and subcontractors performing work on certain federal contracts to ensure their employees and workers are fully vaccinated against COVID-19 because, in part, the order exceeds the authority Congress granted to the President to address administrative and management issues in procurement and contracting.
- Commonwealth v. Biden (Kentucky federal court, November 30, 2021); enjoined the same mandate for federal contractors because President exceeded his authority.
- Let Them Choose v. San Diego Unified School District, et al. (California state court, December 20, 2021): granted a writ of mandate restraining a vaccine mandate by the San Diego Unified School District because the District attempted to impose a new requirement (the COVID-19 vaccine) in a field that the state legislature fully occupied through its health and safety regulations, and the California Department of Public Health had not added COVID-19 as a required vaccine under those regulations.
We raised the same argument in many of the lawsuits we filed in New Hampshire. Despite this growing trend in court precedents elsewhere, the New Hampshire judiciary has ignored the egregious statutory violations taking place.
People are quick to point to Constitutional rights when challenging government mandates, but such rights are difficult to establish in order to mount a compelling challenge to government action. Arguing, instead, that a certain government entity lacks the statutory authority to issue a mandate is a clearer, and more potent attack on the kind of unprecedented government overreach we have all experienced these last two years.
Going forward, legal challenges must focus on pinpointing the type of power the government institution under scrutiny has, then forcing that institution to identify the specific authority that provides it with the power to enact the mandate in question.
These institutions do not have inherent authority; rather, their authority is delegated by the people, and whatever authority is not delegated is retained by the people.
Governments need to be forced to identify the specific authority that permits them to mask or vaccinate children. Without that authority, these mandates are illegal.
