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Gov. Dunleavy issues order against federal vaccine mandates; Critics say it’s ‘a whole lot of nothing’

Published: Nov. 3, 2021 at 7:26 PM AKDT
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JUNEAU, Alaska (KTUU) - Gov. Mike Dunleavy issued an administrative order on Tuesday, aimed at preventing state agencies from enforcing federal COVID-19 vaccine mandates for employers. The Alaska attorney general is also instructed to find any legal grounds to challenge federal vaccine mandates in court.

The order is part of an effort to push back against what Dunleavy calls unconstitutional “federal overreach” by President Joe Biden. It says that state agencies cannot use funds or personnel “to further a federal vaccine mandate for employers.”

But, there is a caveat. That line is preceded by the phrase: “To the extent allowable by law.”

“(That) tells you everything you need to know,” said Scott Kendal, an attorney and chief of staff for former Gov. Bill Walker. “To the extent a federal law is constitutional, it is supreme over state law. This (administrative order), to the extent it says it is doing that, is doing a whole lot of nothing.”

Kendall says it will be the courts that decide whether Biden’s vaccine executive orders are legitimate. If they aren’t struck down, they are in effect, regardless of Dunleavy’s administrative order.

And the U.S. Supreme Court has long ruled in support of federal vaccine mandates. Kendall notes other less controversial immunizations are already required by school districts in Alaska.

Bruce Botelho, former Alaska attorney general under Democratic Gov. Tony Knowles, agrees that the line, “To the extent allowable by law,” is significant and hints at the opposite challenge facing the Dunleavy administration. The state may also need to follow federal mandates “to the extent required by law,” Botelho added.

The order comes less than a week after the state of Alaska joined a lawsuit to challenge Biden’s vaccine executive order for federal contractors. Dunleavy said the state would also sue when Biden issues his order requiring private businesses with 100 or more employees to vaccinate their staff or have them undergo regular testing.

Court filings note that several state agencies are considered federal contractors and could be impacted by Biden’s mandate. The state health department, the Alaska Department of Corrections and the Alaska Department of Public Safety are all listed in court documents.

The state doesn’t track how many of its employees are fully vaccinated and it’s unclear what would happen if these agencies don’t comply with the executive order by a Dec. 8 deadline.

“The worst-case scenario would be if the contracts are cancelled, causing major financial impacts to all the agencies and to services to the public. We will be pulling more specifics together moving forward,” said Aaron Sadler, a spokesperson for the Department of Law, last week by email.

The risk of losing $300 million in federal contracts led Pat Pitney, the interim president of the University of Alaska, to require hundreds of staff members to follow the vaccine mandate, despite opposing it personally. The Alaska Railroad, another federal contractor, recently rescinded its own vaccine mandate, but officials noted vaccinations could be required if courts don’t act.

Some conservatives, including Rep. Cathy Tilton, R-Wasilla, applauded the governor for issuing the administrative order. She said previously that the governor’s authority comes from state’s rights despite the supremacy of federal law.

“I was pleased to see the governor come out, fighting for the freedom of Alaska and Alaskans,” she said on Wednesday.

Dunleavy also pledged to fight back against a requirement for the National Guard to mandate vaccines without religious exemptions, but he noted in an op-ed that his authority is limited in restricting mandatory vaccinations for the military or federal employees. He also said it should be up to business owners to decide on rules for their employees.

“Just as I don’t believe the government can order a private business to require vaccines, I don’t believe that government should keep private businesses from requiring a vaccination if they think that it is best for their employees and customers,” he said.

Both of Dunleavy’s chief opponents in the governor’s race for next November’s election were critical of him, saying he should be working harder in other areas.

“The real question is: What are you doing to end the pandemic?” asked Les Gara, a former Democratic legislator, who says Dunleavy should travel across the state, encouraging Alaskans to get their shots.

Walker, an independent, agrees.

“The focus on pushing back, I would be focused on pushing forward to getting as many Alaskans vaccinated as absolutely possible,” he said.

Pushing back against the IRS and threats at school board meetings

The governor’s administrative order also pledges to defend Alaskans’ constitutional rights from the federal government at school board meetings and from the Internal Revenue Service.

The U.S. Attorney General Merrick Garland issued a memorandum in October, saying federal law enforcement would work with states, tribes and local governments to protect school board members from violence or the threat of violence.

The memo came after the National Association for School Boards Association urged the Biden administration to act. It likened the behavior against school board members during recent rowdy COVID-19 meetings as “domestic terrorism.”

The association subsequently apologized to its members for the language it used, but conservative media outlets have argued the federal government is threatening parents’ freedom of speech when arguing against COVID-19 mandates at school board meetings. Dunleavy’s order attempts to address those concerns:

“To the extent allowable by law, no state agency shall participate with a federal agency, or spend state funds to participate in, or further any action by a federal agency that infringes on the constitutional rights of Alaskans,” the order states. “Nor may a state agency take actions that would unconstitutionally chill free speech or infringe upon other constitutional rights exercised by citizens against or in support of local school district policies. State agencies shall continue to enforce the criminal code of the State of Alaska.”

Botelho says the U.S. Justice Department’s order was clearly focused on protecting school board members and had no impact on parents’ freedom of speech. Kendall, again pointing to the phrase “to the extent allowable by law,” said this section is particularly meaningless.

“The example of respecting the First Amendment rights of parents at school boards, they already have their First Amendment rights, a school board or an administration can’t violate those rights,” he argued. “Restating them is clearly just a partisan political statement.”

Dunleavy also pledged to fight against the IRS being able to monitor bank accounts with $600 or more in cumulative transactions in a year. That idea was floated earlier in the year, but subsequently amended and any version of that plan is yet to be enacted through legislation.

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