DeSantis, Abbott Lead Pushback Against Vaccine Mandates

BUCK: Let’s start with the good news from Florida as of today. I was very excited to see this. Clay, we have a member of the Florida State legislature. What Texas has done is say at the executive level, no vaccine mandates period. That means the same way your business cannot discriminate on the basis of race, can only serve some customers, you know, there are some things that states cannot or can allow, depending what we’re talking about, businesses to do. And looks like in Florida they’re going through the legislative arm instead of just the executive branch. Governor DeSantis announced a special session to pass legislation to protect Floridians’ medical freedom and right to earn a living. Florida is fighting back against unjust mandates. That was the tweet from Representative Anthony Sabatini of Florida this morning. Clay, this is the pushback, my friend.

CLAY: It’s what we need to see. And we have talked a lot about this in the context of federalism and the good fortune that we have that Republican governors have existed at all in this country because if they didn’t we might well be Canada or Australia and have been locked down for much of the past year with no recourse because everybody would have been out there trying to do the same thing, right? And so as you break this down and start to analyze it, it is a really big and strong and monumental and important thing that Governors Abbott and, certainly, DeSantis are doing. And the way that this is going, I believe, is going to end up in a massive battle, legally.

Let me say this too. It’s important for people like us with substantial audiences to keep hammering a fact which is an inconvenient truth that most will not discuss. Florida yesterday had the lowest rate of covid in the contiguous United States. Only Hawaii yesterday, according to New York Times data, had a lower rate per capita of covid infection than Florida.

BUCK: Clay, we have to find out how Governor Ron DeSantis managed to spread the covid everywhere else in the country. He must control the seasons.

CLAY: And it’s also important — and this is why I would love to have Dr. Fauci — and we need to get to basically Fauci being proven to be a liar, Rand Paul being proven correct based on an NIH statement during the course of today’s show. But, Buck, Vermont, which is one of the most vaccinated states in the entire country — nobody is covering this — is consistently setting every day new highs in covid. Over 90% of adults in Vermont are testing positive for covid, despite 90%of people being vaccinated new highs are being set in covid cases. And the question that Dr. Fauci and everybody of his ilk should have to answer is one that I bet Ron DeSantis in Florida and Greg Abbott in Texas would like to ask as well: If everybody being vaccinated eliminates covid, how do you explain Vermont? There is no explanation.

BUCK: They’re still clinging to “It’s only the unvaccinated.”

CLAY: Which is untrue.

BUCK: Which is not correct, right? So this is where there’s a little bit of a panic, I think, among the establishment, the medical establishment. I would also note that, you know, Clay, we here on this show were pushing for protection against private sector mandates, maybe even had a discussion with a governor from another state who did not seem interested and wanted to give a phony, pseudo-constitutional lecture on how a state cannot do what in fact the states of Texas and now Florida will be doing because when you understand the nature of what the left is trying to accomplish here, you can see their next moves. It was pretty clear that they were going to be using the private sector to force people to get the shot. And I also think, in addition to the businesses that are doing it, people are now seeing — and I’m not saying — I hate the, “Oh, they’re coming for your children.”

CLAY: Yeah.

BUCK: There will be blue states that are mandating your 6-year-old get the covid vaccine. It’s going to happen within 90 days. They’re going to be mandating it.

And so now people are saying, okay, so what do we do? We’re gonna sit around and give each other, you know, give each other pats on the back because we’re small government or whatever while everyone’s being forced to get the shot or get fired or have to take all these extreme measures that the government’s mandating. So Florida and Texas leading the charge holding line. Remember, Florida’s not — there are other redder states that are not being as courageous on this issue. Florida is, you know, a little red, but it’s not that red. So to get the Florida legislature moving behind this and to take this action so that people won’t lose their jobs over this is slowing some real courage on the part of the Republican legislators and also Governor Ron DeSantis there. I wish it would be mirrored in some of the redder states.

CLAY: Well, it should be mirrored in every state that has the opportunity to do this because at a minimum we are headed for a Supreme Court review of how do we determine the legality here? Can the federal government — which by the way, Buck, I want to keep emphasizing, they still haven’t promulgated their officials rules. They announced that they were going to do it, but the OSHA requirement on covid vaccination for any company that has over a hundred employees, that still hasn’t happened. And so I continue to believe that not only do you need to stand up to it because it makes it clear this is gonna be a legal battle, but I think the Biden administration is aware that that might be a legal battle they lose. And so they’re trying to drag out the implementation of these covid vaccine requirements, the mandates from the federal government as long as they can so that hopefully — I really think it’s this — they are hoping they can say, “Hey, so many people went ahead and got vaccinated that now we don’t have to implement a federal mandate. We still think individual companies should do it, but we’re gonna back off.” They’re gonna give us a carrot after threatening to hit us with a stick.

BUCK: Absolutely. And you start to look at this, Clay, can the federal government mandate that every household in America has to buy a firearm? I mean, under the expansive approach that the Democrats seem to take here of the Commerce Clause and the federal government in this case using OSHA but, you know, where does this stop and start? If you don’t leave certain things to states only, we often talk about federalism here on the show, then you just have a D.C.-based super legislature and states are effectively irrelevant. There are things that should be left to the states, and health is overwhelmingly one of them, especially when it comes to things like quarantine powers and safety regulations and things of that nature. States have a tremendous leeway with that. They have plenary powers. Florida and Texas recognize that.

CLAY: Yeah, and so this is a little bit of a complicated legal dynamic, but I do think people should be aware of this. By trying to have OSHA mandate it, what would end up being the dispute is, does OSHA have the authority to mandate a federal vaccine? And it’s different than, for instance, if the Congress tried to mandate it. I think there’s a lot of people out there if you want to have that debate and if you want to go into the House and you want to go in the Senate and you want the federal government to trying to mandate under legislative power. But what they’re trying to do is put this under the OSHA regulatory regime which is the same thing, Buck, that was found to a certain degree to be unconstitutional because, remember, when we go back to the eviction moratorium that the Supreme Court shut down, that was not a federal legislation. That was also under the CDC, and they found that it exceeded the scope of the CDC’s authority to keep evictions from occurring as a public health matter. Similarly, I think it’s likely that the agency and regulatory states of this regulation being promulgated underneath OSHA is not going to be permissible, whereas if they went to Congress and the House and the Senate said we’re gonna do this, that would be a stronger case.

BUCK: This is because the bureaucracy has become the fourthly and unelected branch of our government, in many ways more powerful than, more intrusive than even what you get from the legislative branch and the judiciary and the elected executive branch in the sense that you actually have members of Congress and the president — well, the president obviously and then members of Congress are part of the legislative. But the point here being you’re not supposed to be living at the whim of the EPA or —

CLAY: Unelected officials.

BUCK: — the OSHA or HHS. HHS is a massive institution in America now. And when they say things like, “Oh, but it’s private businesses making these decisions,” the federal government behind the scenes because of Medicare and Medicaid and all these different HHS regulations and reimbursements calls the shots in the hospital system. People don’t understand. It’s not as simple as — I’ve got a lot of Libertarian friends. They have not been particularly helpful in this fight against covid because they keep thinking there’s some neutral space here that we’re defending when really we’re just taking artillery rounds all the time.

CLAY: Yeah.

BUCK: The other side does whatever they want. And I think Florida and Texas, to bring it all back, are making the right move by at least. They gotta try to defend these basic rights. You know, to your point about how the courts play this out, Clay, we’ll see. But beyond that, timing here really matters. Even delaying it 60, 90 days, maybe six months, might mean the difference between a really onerous and aggressive mandate going into effect. Because once the needle goes into your arm it’s done and this is why back in August I felt so vociferously about taking action in red states. And I have a feeling some other red states may be taking action. But I will not getting any apology notes from my governors I have a feeling too.

CLAY: Here’s the other thing I think procedurally that you hit on that’s so important: timing. There are a lot of companies out there in Texas and Florida that may not want to take this vaccine mandate but need a fig leaf. They need a cover, legally, to be able to argue where they are not doing it. DeSantis and Abbott now have given them that fig leaf. And I think we need that in many other states, as many as we possibly can.