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West Virginia lawmakers weigh in on COVID mandate advisory opinion

Attorney General Patrick Morrisey released an advisory opinion Friday on various kinds of COVID-19 mandates. (Photo by Steven Allen Adams)

CHARLESTON — As lawmakers gather in Charleston for regularly scheduled legislative interim meetings Sunday, an advisory opinion from Attorney General Patrick Morrisey regarding the legalities of COVID-19 vaccine mandates and vaccine passports was the talk of the town.

Coming one day after President Joe Biden issued vaccine mandates for federal employees, federal contractors and businesses with more than 100 employees, Morrisey released the results Friday of an advisory opinion sought at the end of last month by Senate President Craig Blair, R-Berkeley, and House Speaker Roger Hanshaw, R-Clay.

Blair and Hanshaw asked Morrisey to determine whether the state Constitution prohibits mandating public employees get vaccinated, whether the Constitution or state law prohibits requiring “vaccine passports” or proof of vaccination to enter public or private establishments, and whether the Constitution or state law prohibits private organizations and businesses from implementing vaccine mandates or whether the state had the legal authority to prevent organizations and businesses from requiring these mandates.

In his advisory opinion, Morrisey said and of the COVID-19 mandates listed by Blair and Hanshaw could violate what Morrisey calls “constitutional interests in personal medical decision-making,” religious freedom rights, as well as freedom of assembly, freedoms to vote and petition the government, and engage in society.

“In the end, a law requiring all state employees to be vaccinated or requiring all businesses to demand vaccine passports from all patrons would violate our State’s constitution (as it should be properly understood) and violate both state and federal law,” Morrisey said. “The same finding would follow no matter what aspect of ‘state’ government is implicated; mandates and passport requirements imposed by counties, municipalities, and other public actors would give rise to the same legal concerns as a mandate or passport requirement imposed at the statewide level.”

With the opinion coming over the weekend, Republican legislative leaders had little to say. Senate President Blair declined to comment, but House Speaker Hanshaw said the opinion would give lawmakers something to consider over the coming months.

“We have received the opinion from the Office of the Attorney General, and the legal landscape on this is changing every day,” Hanshaw said. “We don’t know what the announcements from the federal government will mean for us, but we will be spending a lot of time discussing this topic between now and the regular legislative session.”

Democratic leaders in the House and Senate spoke out against the Attorney General’s advisory opinion Sunday. Senate Minority Leader Stephen Baldwin, D-Greenbrier, and House Minority Leader Doug Skaff, D-Kanawha, said Morrisey didn’t directly address the questions the Blair and Hanshaw presented.

“As I read through it, it just didn’t seem particularly relevant to the questions that were asked of him by the Speaker and the President,” Baldwin said. “They asked some pretty specific questions about specific scenarios and (Morrisey’s) responses…didn’t respond to those specific situations. They seem to be more generalities, and so that’s not a real response to the question.”

“I think the Attorney General’s advisory opinion was nothing more than a political hack job,” Skaff said. “His job is to help interpret past precedents and law and take what past Supreme Court ruling have already said is legal to do and give his opinion. Instead, he decided to turn it around and give his own advice and direction on how we should pass legislation to direct and outcome that he wants, which is well beyond the scope of his job. It’s not his job to suggest legislation. It’s to interpret the law.”

Gov. Jim Justice has expressed no interest in mandating COVID-19 vaccinations for the public or state employees, preferring to use constant encouragement and incentives to drive the public towards vaccinations. The Governor has also expressed no interest in requiring business check the vaccination status of patrons. Justice spoke out Friday against Biden’s vaccine mandates.

“I’ve got big-time issues with all the stuff that’s going on with the Biden administration,” Justice said. “What President Biden is doing right now…I absolutely think that is wrong. I am absolutely not in support of doing that in any way in the State of West Virginia.”

However, Justice also said he would not support the call of several Republican lawmakers to call a special session to pass bans on businesses requiring proof of vaccination or mask mandates. Republicans in the House and Senate are also working to come up with the three-fifths necessary – 60 members in the House and 20 members in the Senate – to call themselves into special session.

“It just seems to me like we really have lost our way,” Justice said. “I always thought that true Republicans stood for letting private businesses do what they want to do, and now we’re trying to impose restrictions on private businesses? It seems like a complete role-reversal. It seems like something the Democrats would have come up with years ago…thank goodness at least that this is only a few who now have completely reversed roles.”

Several members of the Senate Democratic Caucus held a virtual press conference last week to oppose any special session that would tie the hands of state and local health officials during the pandemic or prohibit businesses from implementing vaccine mandates, mask mandates, or requiring proof of vaccination. Both Baldwin and Skaff said there was no support among Democratic lawmakers for a special session.

“Now is not the time,” Baldwin said. “If we’re talking about having a special session to be able to give public health and medical leaders more tools to combat COVID, we’re all in,” Baldwin continued. “But (Republicans) are actually talking about having a special session to take away tools to combat COVID when we’re at the height of this pandemic. We just don’t think that the responsible thing to do.”

“They want to make it harder for people to get passed this and get back to normal,” Skaff said. “Why would we call for a special session to call for a mandate against a mandate that will prevent us from getting back to normal sooner rather than later?”

“They want to have a special session against a mandate that allows free enterprise and allows businesses to do as they see fit and run their companies as they see fit,” Skaff continued. “They want a special session to go against what they’re supposed to stand for as a party – free business and free enterprise. I just don’t understand it. They say they’re for smaller government. Well, this is definitely not smaller government.”

Steven Allen Adams can be reached at sadams@newsandsentinel.com.

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