Later this month, the Wyoming Legislature will convene for a special session. Such gatherings are rare: Only 23 have occurred since Wyoming became a state in 1890. The last one took place just a few months into the pandemic, as lawmakers looked to allocate badly needed relief funds in the wake of a major economic slowdown.
This time around, the impetus for the session is President Joe Biden’s executive order that will require workers at businesses with more than 100 employees to either be vaccinated against COVID-19 or tested weekly. The move, which came after a dramatic rise in the virus brought on by the more contagious delta variant, instantly stoked anger in Wyoming. Gov. Mark Gordon characterized the move as government overreach and promised to fight it in the courts. Many state lawmakers and the Wyoming Republican Party issued similar decrees. And rather than wait for the courts, they pushed to fight it through legislative action.
But regardless of how you might feel about the vaccine requirement, there are a few notable problems with calling a special session now. And those problems suggest that many lawmakers are more concerned with demonstrating their animus toward the federal government than taking meaningful steps toward change.
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First, while the special session is set to begin on Oct. 26, there is no actual mandate to fight at this point. Biden’s order didn’t unilaterally impose one. Instead, it must still go through the federal rule-making process before it takes effect. There’s no indication whether those rules will be coming in a matter of weeks or months. The upshot? Lawmakers are gathering to fight something without knowing exactly what that something is, which blunts their ability to block it. That’s the reason why Gordon didn’t call for the session yet. But under pressure from the Wyoming Republican Party leadership, lawmakers are gathering anyway.
Then there’s the matter of the U.S and Wyoming constitutions. The U.S. Constitution includes within it the Supremacy Clause, which holds that federal law supersedes state statute. The Wyoming Constitution and Wyoming Supreme Court rulings make it clear that the U.S. Constitution and federal law prevail over state laws and regulations. So whatever law that the Legislature might pass, it can’t trump its federal counterpart. Legal experts say this is one reason that lawmakers will have a difficult time battling the mandate.
Given those realities, a special session at this juncture is more performative than practical. Lawmakers in favor of the session say they’re responding to the desires of their constituents. But isn’t there a responsibility of lawmakers to explain the realities of federal rule-making and the Supremacy Clause rather than rush to pass laws with little practical effect? That’s especially the case when a special session, which is expected to be held mostly in-person, will cost the state $25,000 a day.
Then there’s the matter of the anti-mandate bill that lawmakers are proposing. Multiple proposals would ban vaccine requirements not only made by public institutions, but private businesses as well. In other words, the party of small government and low regulation is proposing regulations that tell businesses they can’t decide what’s best for their firm or their employees. Instead, that judgement would be decided at the Capitol in Cheyenne.
Consider a business that serves medically fragile or immunocompromised individuals. Its owner may decide that, to keep its clients safe, requiring staff members to get a vaccine that protects against a contagious and potentially deadly disease makes sense. Proponents of a ban want to take away that choice. How is that deferring to the private sector? How is that small government?
Similar arguments supporting business choice have been made by opponents of a statewide indoor smoking ban. And it’s more than a little ironic that some of the same people who oppose smoking bans on such grounds are clamoring to enact a ban that would also limit private business owners’ rights to decide what’s best for their companies.
There’s a greater irony still. This whole affair will likely be decided not in the statehouse, but the courthouse. There are legal questions to consider: namely, whether the federal OSHA statute supports the yet-to-be-seen regulations concerning the vaccine mandate. That court challenge will arise once the rule-making process is complete. And the matter might very well end up being decided by the U.S. Supreme Court.
Given that reality, why the push for a special session now? Well, for one it makes for good politics. For most Wyoming lawmakers, there are few downsides to a public fight with the federal government, regardless of whether the fight is performative. But that performance isn’t free: Lawmakers will spend taxpayer money gathering in Cheyenne. And they’ll focus on bills that will likely have little impact, all the while avoiding the existing structural issues facing our state.
Because the special session won’t solve the problem of young people fleeing out state for more opportunities elsewhere. It won’t solve the problem of our overreliance on the energy industry to fund services like public schools and health care. It won’t solve the problem of shrinking small towns, an education system that’s not fiscally sustainable or our state’s persistently high suicide rate. Enough with the distractions. Isn’t it time lawmakers focused on our state’s most pressing concerns?