The Morning Dispatch: Texas Bans Vaccine Mandates

Happy Wednesday! The Atlanta Braves edged the Milwaukee Brewers last night to punch their ticket to the National League Championship Series, which means the last Morning Dispatch team has been eliminated from the MLB postseason. See you all in April!

Quick Hits: Today’s Top Stories

• The House of Representatives voted on Tuesday to raise the national debt ceiling by $480 billion, effectively extending government spending through early December. The House’s go-ahead follows Senate Minority Leader Mitch McConnell’s deal with his chamber’s Democrats to approve a stopgap measure, preventing the U.S. from defaulting on its loans on the stipulation that Democrats pass the next debt ceiling increase through reconciliation. 

• House Speaker Nancy Pelosi warned her chamber of planned cuts to a $3.5 trillion Democratic-led package in her weekly press conference Tuesday, bowing to the reality of continued refusals by moderate Sens. Kyrsten Sinema and Joe Manchin to support a bill with such a high price tag.

• About 4.3 million Americans—about 2.9 percent of the U.S. workforce—left their jobs over the course of August, according to the Labor Department’s Job Openings and Labor Turnover Survey on Tuesday. Experts attributed the data point to workers seeking better opportunities in America’s hot job market, with job openings continuing to outnumber unemployed workers.

• A memo Tuesday from Homeland Security Secretary Alejandro Mayorkas ordered immigration enforcement officials to cease “mass worksite operations,” which often result in the arrests of groups of undocumented workers, for at least 60 days. 

• President Joe Biden convened virtually with leaders of G20 countries and guest countries yesterday to discuss Taliban-occupied Afghanistan. According to a readout of the call, the heads of state talked about ongoing safe passage efforts, counterterrorism strategies, women’s rights, and humanitarian assistance to the Afghan people.  

• Rep. John Yarmuth, a Democrat from Kentucky and chair of the House Budget Committee, announced plans to retire from Congress when his term is up in 2022. 

Abbott Bans Vaccine Mandates in Texas

The details of President Biden’s forthcoming employer COVID mandate haven’t been released yet, but Republicans are already beefing up resistance to it in places where they hold power. Case in point: On Monday, Texas Gov. Greg Abbott issued a sweeping executive order banning all entities in the state from implementing COVID-19 vaccine mandates without including carve-outs for “reasons of personal conscience” or “medical reasons, including prior recovery from COVID-19.”

The order includes private businesses and is an expansion of previous action Abbott took to prevent local and state government entities from implementing vaccine mandates. His action also will “supersede any conflicting order” that local entities may have implemented. Under the order, companies who forge ahead with a vaccination requirement for workers face a fine of up to $1,000, the maximum amount allowed under Texas law. 

Abbott, who was vaccinated on television earlier this year and has urged his constituents to follow suit, explicitly contrasted his action with Biden’s in the order: “In yet another instance of federal overreach, the Biden administration is now bullying many private entities into imposing COVID-19 vaccine mandates, causing workforce disruptions that threaten Texas’s continued recovery from the COVID-19 disaster.”

Abbott also called on the state legislature to codify a similar order into law, and said he would rescind the executive order once the state had done so. The Texas Legislature is currently in a special legislative session that is set to wrap up October 19.

In one sense, the Texas governor’s latest move is simply an intensification of his earlier position: Abbott is doubling down on his previous order, broadening its scope to include private businesses as well as government entities. 

But the move also cuts against Abbott’s own previous stated reasoning on mandates, which was premised on keeping the government out of the private sector’s way when it came to such decisions. “Private businesses don’t need government running their business,” Abbott spokeswoman Renae Eze said of private vaccine mandates in August.

Abbott’s political rivals see the move as an about-face. Former state Sen. Don Huffines, who is challenging Abbott in the 2022 GOP primary, tweeted that Abbott had “reversed his position on the issue, caving to the pressure” brought by his campaign.

The Republican Party of Texas had also pushed Abbott to proactively forbid vaccine mandates. In an open letter, party chairman Matt Rinaldi wrote: “Time is running out to protect vulnerable Texans who are having to choose right now between losing their livelihoods or accepting forced administration of a COVID-19 vaccine.”

“Nothing in Gov. Abbott’s executive order prohibits or prevents somebody from being vaccinated,” Robert Henneke, general counsel at the conservative Texas Public Policy Foundation, told The Dispatch. But added that he didn’t believe individuals should have to be vaccinated if they had personal reasons against doing so. 

But there is a split among conservatives on the issue, with others arguing that government should neither compel business to push vaccines nor prevent them from doing so. 

“My ideal scenario is that politicians broadly should stay out of this and let businesses decide how they want to approach this,” John Tamny, director of the Center for Economic Freedom of FreedomWorks, told The Dispatch. He added: “If a failure to mandate results in a lot of sick employees, that too will have a major impact if businesses are going to be shut down and lose workers … If [businesses] decide that going the vaccine route is what’s going to enable them to operate more efficiently, they should be able to make that decision.”

“Yes, Gov. Abbott can do this, at least statutorily. Texas gives the governor enormous emergency power when a disaster has been declared,” Gabriel Malor, a Virginia-based appellate litigator, said in an email to The Dispatch. “In this case he’s wielding that power to reduce the incidence of vaccination in his state, but that is within his broad discretion.”

“The law is curtailing employers’ rights … it removes from them the freedom to set their own workplace policies in accordance with their own beliefs and safety goals,” Malor added. “But I don’t see a lurking constitutional violation here. There is no fundamental right to run a business with a vaccinated workforce. Since this order says that no entity in Texas can compel the COVID-19 vaccine, the best that businesses who want to protect themselves from the virus’ worst effects can do is offer incentives to get vaccinated.”

In the meantime, many businesses are caught between Abbott’s new mandate and Biden’s forthcoming one.

“Violation of Gov. Abbott’s order is punishable by a fine,” Malor said. “Violation of an OSHA Emergency Temporary Standard is also typically punishable by fines. Assuming that both Abbot’s order and the anticipated OSHA ETS are operative (that is, neither has been previously blocked by a court) it is conceivable that a business could be in violation of both, depending on what the ETS looks like. That’s a tough spot to be in.”

The New York Times reports that both American and Southwest Airlines are set to defy the governor’s new order. “We believe the federal vaccine mandate supersedes any conflicting state laws, and this does not change anything for American,” a spokesman for American said. 

According to a tracker by the Texas Tribune, slightly more than 50 percent of Texans are fully vaccinated. Hospitalizations and reported new cases are on the decline.

January 6 Probe Flexes Subpoena Power

As the Uphill team noted last week, the House select committee investigating the Capitol riot cracked its whip last month by sending subpoenas to four individuals who were in close communication with former President Donald Trump in the days leading up to January 6. That list includes former White House Chief of Staff Mark Meadows, former Defense Department official Kashyap Patel, former White House adviser Steve Bannon, and former White House social media staffer Dan Scavino. 

The committee has also issued 11 subpoenas to individuals who organized rallies contesting President Joe Biden’s electoral victory—including the Save America Rally that preceded the storming of the Capitol on January 6—and has requested records from social media companies and executive agencies that may offer insight into key White House conversations in the days leading up to the Capitol riot.

Meadows, Patel, Bannon, and Scavino were given an October 7 deadline to hand over any documents related to the events of January 6 and were instructed to sit for depositions the following week. The committee has said that it will consider advancing criminal contempt of Congress referrals to the Justice Department for those who fail to comply with the subpoenas.

Both Meadows and Patel have reportedly been “engaging” with the committee, according to a statement last week from committee Chairman Bennie G. Thompson and Vice Chair Liz Cheney. But Bannon? Not so much. According to Thompson and Cheney, Bannon, who was fired by the Trump administration in 2017 but continued to provide counsel to the former president through January 2020, “has indicated that he will try to hide behind vague references to privileges of the former President.” The panel’s statement declined to say whether Scavino is cooperating with federal investigators. 

Trump has signaled that he will assert executive privilege, the 1974 court-established balancing test that weighs the understanding that a president should be able to consult candidly with his closest advisers with the reality that this privilege does not always exist in cases where there is a demonstrated need to make certain information available to Congress.

Trump has discouraged his former advisers from cooperating with federal investigators. Last week, one of his lawyers sent letters to Meadows, Patel, Bannon, and Scavino instructing them to ignore the House select committee’s subpoenas. “President Trump is prepared to defend these fundamental privileges in court,” the letter said, per reporting from Politico. 

Trump may be on thin legal ice here; many legal scholars argue that privilege authority rests only with the sitting president. “Under our system, the authority attaches to the office, not the human,” former Obama White House Counsel Neil Eggleston said in a recent interview with Harvard Law Today. “President Biden has this power because he’s president, not because he’s Joe Biden. And when President Trump was in office, he had the power because he was President Trump, not because he was Donald Trump.” 

For his part, President Biden has thus far signaled that he is willing to cooperate with the House select committee. After White House press secretary Jen Psaki initially stated last month that Biden would waive executive privilege completely, she later clarified that the White House will review records on a “case-by-case” basis. The White House waived privilege for the first set of documents requested by the committee last week.

Will Trump’s attempts to block records and testimony from Congress be successful? As David and Sarah pointed out on Monday’s episode of Advisory Opinions, former presidents and their former advisers do have some executive privilege, but that privilege diminishes over time. 

Democratic Rep. Adam Schiff, a member of the House select committee, told The Dispatch on Tuesday that the committee is “not going to tolerate people refusing to cooperate” with the committee’s subpoenas. 

“As we witnessed with Bannon during the course of the Russia investigation when he was subpoenaed by a Republican chairman, he came prepared with 25 questions that were written out by the White House that was the subject of our investigation,” Schiff added. “That kind of stuff is not going to work here.”

Worth Your Time

• Matt Labash is back. The former Weekly Standard staff writer, one of the most talented writers working today, announced a new Substack newsletter he’s calling Slack Tide. “So what will this thing of ours look like?” Labash writes in his introduction. “Well, not to go too Zen monk/Matthew McConaughey on you, but it is what it is, and will become what it needs to be. There will be a little politics, of course. Though after our last half-decade of binge-drinking political toxins, you probably can’t have little enough. So we will also tackle whatever comes (and by ‘we,’ I mean me and my new editor, Grammarly):  life and death and family and music and books and fishing and God. In other words, any and all things, not necessarily in that order. Since all these things are of a piece in my universe. There are no clean lines of demarcation.”

• If you liked Labash’s introductory post, don’t exit the Slack Tide tab you have open on your laptop or phone just yet. In his first post on the site, Labash writes about his love/hate relationship with comments sections. By the end of the piece he seems to come around to the idea of having a comments section after a spontaneous act of kindness occurs in the back-and-forth below his first post. He writes, “God bless my cursed comments section for showing me how wrong I was about comments sections, where unlikely magic can happen. Because magic, when it does happen, tends to happen on its own time, not ours. Maybe I’ll keep that comments section around after all.  I think it’s in good hands.” 

Presented Without Comment

Toeing the Company Line

• In Tuesday’s Uphill, Haley breaks down some of the ongoing negotiations to cut down the $3.5 million trillion spending package and Ryan tackles efforts within Congress to pass war powers reforms. On the latter, the legislation would “curb presidential powers related to national emergencies. There are 39 national emergencies currently on the books. When he was in office, former President Donald Trump used national emergency powers to divert military funds to the construction of a wall along the southern border.” 

• Dust off your calculators, because the Manhattan Institute’s Brian Riedl is back on The Remnant to discuss everything you’ve ever wanted to know about the federal budget, spending, taxes, and deficits. He also touches on the right’s curious lurch toward industrial policy and common good capitalism, and why conservatives and progressives alike can’t resist the prospect of a free lunch. Is the Laffer Curve a force for evil? How progressive is the U.S. tax code? And why is Joe Biden so determined to outspend Mack the Knife?

• Joe Biden’s struggles have been very apparent in the last few rounds of polling. Almost all of the latest headlines pertaining to polls about the president are dire, but as Chris Stirewalt and Sarah remind us in The Sweep it’s very early to be talking about 2024, let alone 2022. 

Let Us Know

Pelosi told House Democrats to be ready for cuts to the $3.5 trillion reconciliation bill, which includes two years of free community college, money for universal pre-k, child tax credits, Medicare expansion, paid family leave, and climate measures. If you had a red pen, which provisions would you cut? Any in particular you would keep?

Reporting by Andrew Egger (@EggerDC), Charlotte Lawson (@lawsonreports), Audrey Fahlberg (@AudreyFahlberg), Haley Byrd Wilt (@byrdinator), Ryan Brown (@RyanP_Brown), Harvest Prude (@HarvestPrude), and Steve Hayes (@stephenfhayes).