By GARRY RAYNO, InDepthNH.org
CONCORD — New Hampshire joined a lawsuit Friday to block federal COVID-19 vaccine mandates along with nine other states with Republican governors.
The suit against the federal government claims the mandates for federal contractors and federally contracted employees is illegal, although a 1905 U.S. Supreme Court decision declared mandatory smallpox vaccines constitutional in Jacobson vs. Massachusetts.
“The State has made clear that the available Covid-19 vaccines are safe and effective and that every eligible person in New Hampshire is encouraged to get a Covid-19 vaccine,” said Attorney General John M. Formella in joining the suit. “That said, the benefits of the Covid-19 vaccine do not justify violating the law. This lawsuit is being filed to protect the State of New Hampshire from the federal government’s attempt to impose illegal mandates.”
The suit filed in the Eastern U.S. District Court of Missouri does not contest the vaccine mandate for federal employees, healthcare workers in facilities that receive Medicare or Medicaid funding, and businesses with 100 employees or more.
In the suit, the states claim the federal executive order usurps powers that traditionally belong to the states, including police powers and violates the constitutional separation of powers provision between the federal and state governments.
They also claim the federal government failed to follow protocols in publishing the mandate rules in the federal registry and violated the provisions of the Federal Acquisition Regulatory Council, which has sole authority to issue government wide regulations.
“This power grab is sweeping in its scope. Employees of federal contractors constitute one-fifth of the total U.S. workforce. And the mandate goes so far as to demand vaccination even from employees who work entirely within their own home. That is unconstitutional, unlawful, and unwise,” according to the 44-page suit.
The states seek injunctive relief to block the implementation of the vaccine mandates as well as the guidance issued to accompany the mandates.
House Speaker Sherman Packard, R-Londonderry, said joining this lawsuit was the correct call.
“The state of New Hampshire is doing the right thing by standing up to illegal mandates, particularly one that has such devastating effects – loss of income, loss of medical privacy and an increasing number of unemployment casualties,” Packard said.
The states claim the mandates affect a large percentage of their workforce and that many state agencies and political subdivisions are contractors with the federal government and thus are obligated to follow the mandates.
“As sovereign states, the Plaintiff States have quasi-sovereign interests in protecting the rights of their citizens and vindicating them in court. The States may sue to challenge constitutional violations that ‘affect the [States’] public at large’” according to the suit.
The states say they seek to protect their sovereign interests, their quasi-sovereign interests, their proprietary interests, and their interests as “parentes patriae.”
The plaintiff claims the mandates will further impact supply chain issues and raise prices which will impact the 10 states.
“On information and belief, a natural and predictable consequence of the federal contractor vaccine mandate is that employers who are critical to the supply chain, and are also federal contractors, will likely lose significant numbers of employees,” according to the suit. “It is entirely predictable, therefore, that the contractor vaccine mandate will exacerbate current supply chain issues. As a result, prices will continue to rise and cause direct injuries to the Plaintiff States as purchasers.”
The 10-state suit comes one day after Florida Gov. Ron DeSantis filed suit seeking to block the mandate for federal workers, targeting NASA employees in his state.
Gov. Chris Sununu has said since the mandates were announced he would join a lawsuit against the mandates with other governors seeking to block the orders.
Having to enforce the federal mandate was one of the reasons given by the four Republican Executive Council members when they blocked $27 million in federal Center for Disease Control money to expand the state’s vaccination programs.
Sununu, who had backed accepting the federal money along with Department of Health and Human Services Commissioner Lori Shibinette, had disagreed with the contention the state would have to enforce the federal mandates if it accepted the money.
New Hampshire is the only state in the country to reject the money.
Since the council’s rejection, Shibinette said losing the federal money will delay the roll out of booster shots and children’s vaccination clinics. Friday the Federal Drug Administration approved Pfizer vaccinations for five to 11 year olds.
Since the rejection of the federal money, the Joint Legislative Fiscal Committee and the Executive Council have approved about $5 million in federal pandemic relief money for the state’s vaccination program.
Garry Rayno may be reached at firstname.lastname@example.org.