All of the federal contractors in the state of Texas (and there are a lot of them) are about to find themselves in a difficult position. Governor Greg Abbott has issued an executive order forbidding any companies from instituting vaccine mandates. But as of yesterday, the Pentagon has informed all of its contractors in the Lone Star State that they must comply with Joe Biden’s federal vaccine mandate. The federal mandate doesn’t take effect until December 8, so there is still some time for negotiations or court appeals, but that may not matter. The statement from the Pentagon was phrased in a very absolute manner, invoking federal supremacy and suggesting that any companies following the Texas order and failing to mandate vaccinations may lose their contracts, effectively shutting them down. (Government Executive)

Defense contractors and their employees in Texas must get the COVID-19 vaccine despite the governor’s executive order banning vaccine mandates, the Pentagon said Thursday.

The Pentagon, in a statement Thursday, said that federal guidance supersedes local laws, like the executive order issued by Texas Gov. Greg Abbott on Monday. It pointed to federal guidance issued in September.

“These requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance,” the federal guidance states. “Additionally, nothing in the Task Force Guidance shall excuse noncompliance with any applicable State law or municipal ordinance establishing more protective workplace safety protocols than those established under the Task Force Guidance.”

This is a seriously big effing deal, as the President might say. The aerospace and defense industry employs nearly 150,000 contractors in Texas who all work under Pentagon contracts. Others in supporting industries are affected as well. It would be a huge blow to the state’s economy to suddenly lose that many well-paying jobs, not to mention the direct impact it would have on a vast number of families.

As already noted, the Pentagon is clearly relying on the Supremacy Clause in this decision. Found in Article VI, paragraph 2 of the Constitution, the Supremacy Clause generally grants the federal government the authority to take precedence over state laws or even state constitutions. But there are limits to everything and states have won challenges in the past when they’ve butted heads with Washington.

The real question is whether or not the Pentagon’s order and Joe Biden’s mandate qualify under the clause. There are three questions that will need to be answered to determine that if push comes to shove.

• Does the presidential vaccine mandate qualify as “a federal law?”
• Does the federal mandate qualify as an exercise of the federal government’s constitutional powers?
• Is such a mandate exclusively entrusted to the federal government?

The answer to the second question seems fairly obvious and the courts have addressed it in the past. Temporary mandates under a state of emergency have been recognized previously, so Biden should pass that test, at least for the time being. Question number one is a bit trickier because the Constitution almost entirely deals with rules of the road affecting laws passed by Congress and signed by the president. There is no federal law saying that employers must mandate vaccinations. But by the same token, Abbott’s order banning vaccine mandates is similarly a non-legislative action, so you have two executive officeholders butting heads.

The last question may be the stickiest one. We’ve had a patchwork of different laws and executive orders cropping up across the many states since the pandemic broke out, frequently heading in nearly opposite directions from each other. Thus far, nobody has made much of a fuss over that, mostly leaving the states to choose their own course. From that standpoint, we might suspect that a court would take Abbott’s side. But the Biden administration would likely argue that the contractors are accepting federal funds, thereby putting them on the federal playing field and allowing the Pentagon to apply the rules evenly wherever such contracts are being fulfilled.

I honestly don’t know. It could take a long time to sort this one out in the courts, but I would imagine that any contractors who follow Abbott’s orders and don’t institute a vaccine mandate could see their contracts suspended or canceled in short order. Yes, they could challenge the suspension in court, but that wouldn’t do much for their employees in the short term. This is shaping up to turn into a serious mess. Those companies will either face stiff fines from the state of Texas or a loss of their primary revenue source from Washington. It could get ugly pretty quickly.

The last thing we should be addressing is how long this is going to go on. States of emergency and the mandates they allow to be created are supposed to end at some point unless permanent laws are passed to replace them. Does Joe Biden think he can keep imposing his will in this fashion for the entirety of his presidency?