The Texas Anti-Mandate Mandate

12 Oct 2021

BUCK: I first wanted to say that Clay pointed out to me as we were getting revved up here, you’ll notice Clay and I, the show actually for us never stops because even when we have a few minutes of pause we usually continue the discussion or get into a really intense discussion about the next topic so it never…

We try to just have sips of coffee in between going on and on about this stuff, but Clay put it up the Southwest CEO has said that he actually never wanted a covid mask mandate. He’s opposed to a covid vaccine mandate, and the Biden administration has forced his hand. Now, this is what we’ve been saying was going to happen for months, that people who thought — ’cause I would get the emails.

Clay, I would have people who would write me, “Stinks for you as a New Yorker,” or if I lived in California. Clay’s in Los Angeles right now. Remember, there are millions of Republicans… (laughing) I think it’s easy to forget this if you live in North Dakota, just ’cause you’re not around these folks. But there are millions of Republicans in California and New York who don’t want to be dealing with this nonsense, don’t want to be put through the vaccine mandate.

And, Clay, the reality that we’ve seen is the federal government has stepped in. They’ve stepped in against private businesses. Now we have a couple things happening. One, the possibility here — and it does seem like a mixed picture — some people staying home — based on the calls we just got. You all heard them. We have Southwest Airlines pilots calling in saying, “Yes. Some people are standing back.

“Some people don’t want to go in. They opposed the mandate. But there’s also some Southwest logistics stuff.” But then, Clay, “Texas governor Greg Abbott,” this is what I want to get your take on the governor of Texas quotas the New York Times here, “issued a broad executive order yesterday that bars virtually any vaccine mandate in the state.

“Abbott has been among the most vocal political leaders in the U.S. opposing vaccine mandates. No entity in Texas can compel receipt of a covid vaccine by any individual, including an employee or a consumer who objects to such vaccination for any reason of personal conscience based on a religious belief or for medical reasons, including prior recovery,” a/k/a, natural immunity “from covid-19.” Clay, this is what we are talking about. This is what I was asking a different governor to do back in August if we all recall. Texas stepping into the breach.

CLAY: Bravo, Greg Abbott. I’m proud of my fellow Vanderbilt Law School graduate.

BUCK: Oh, look at that.

CLAY: Yeah, this a good advertisement for Vanderbilt Law School. Fantastic place, by the way. For using the power that he has under federalism to protect the people of Texas from what I believe — and I think you believe — are unconstitutional vaccine mandates. Another connection here, Buck. Do you know where Southwest Airlines is based? Texas.

So the fact that Dallas, which I believe is where Southwest Airlines began, in fact, for a long time — and I still think their stock symbol is LUV because they started flying at Dallas Love Field. That’s where Southwest Airlines was founded. I wonder on some level whether the CEO of Southwest Airlines felt emboldened to make…

Look, Buck, there haven’t been that many CEOs who have come out and said, “Hey, I’m not in favor of the covid vaccine mandate,” and I think the reason why Southwest CEO came out and made these comments is because there are a multitude of factors that led to a Southwest issue with their flights. But I think there is a substantial portion of Southwest pilots in particular who are opposing this.

And I think this is the CEO trying to acknowledge their disapproval and shift the blame from the company to the Biden administration. But, Buck, the interplay here is fascinating to me legally because many Southwest employees are based in Texas. So what is going to govern here in a court of law, the governor’s protection of your right not to be subject to a covid vaccine mandate or the federal government’s attempt to mandate a covid vaccine mandate.

BUCK: And this is part of it. And I think everyone needs to understand this. Even if, let’s say — ’cause there’s arguments right now, for example. We could even play it. Congressman Dan Crenshaw, obviously a great guy, former SEAL, Texas congressman. He takes that position that some on the right do that, “Oh, but this is the government doing more than the government should do.”

I actually… As a constitutional matter I think that’s actually not true. The states have very wide leeway and there are a ton of different ways that the state already regulates businesses for health and safety and other reasons in every state all across the country. So it’s just another regulation that you may not oppose.

But that’s not the same thing as acting like this is breaking new ground with government regulation by a state. That’s one part. But the other part of it is the timeline here, Clay, matters. The Biden administration is gearing up to have the OSHA regulation come out. I think the Biden administration is also getting ready to use the interstate commerce clause, using their powers to demand vaccine passports for all domestic flights this winter.

I’d say it’s 50-50 right now, but that could happen. States taking action today and forcing it to the courts will at least prevent some level of mandate from going into effect ’cause once you get the shot, you’ve had to get the shot, and you’ve been somebody put through the mandate — and your freedom, your individual choice has suffered.

CLAY: The conspiracy theorist in me, Buck… The OSHA regulations have not come out yet, right? Biden has announced a covid vaccine mandate, but he’s requiring OSHA to draft those regulations, which will then be applied. But many companies already accepted the mandate even in the absence of the OSHA requirement. This, to me…

The conspiracy theorist in me makes me think that the Biden administration is aware that what they’re attempting to do is unconstitutional. And it ties in, Buck, with, you know how they’re letting everybody in all over the border and we talk about that on a regular basis?

BUCK: Sure.

CLAY: Many of those people have covid. Do you know what they’re not doing? Mandating covid vaccines for illegals coming into our country. Why are they not doing that? Because I think they know that it would be struck down. And so, what they’re trying to do is the same thing they tried to do with the eviction moratorium. They are going to try to implement this policy and hope that so many people follow it that by the time it actually gets struck down, many people — even though it’s unconstitutional — have already committed to the authority that they have put in place.

BUCK: I think that’s absolutely correct. That’s what, I mean. That is a legal analysis of what I mean by timeline. I know you know that but for everybody listening, the timing… That’s why back in August, you know, we had a little interview here. We had a discussion.

CLAY: Yeah. Let’s just point this out, ’cause you were right. We had Kristi Noem on, and some people got upset. And your argument, which is a really strong one, is, “We need governors to do what Greg Abbott did in Texas, what Ron DeSantis has done in Florida, what many different Republican governors have done, which is prohibit the vaccine mandate from being law in their states, so companies are not able to force people and we can determine the constitutionality of these demands ’cause they’re coming everywhere.”

BUCK: The federal government was gearing up for overreach that was going to affect red states. I knew it. We saw it. We said it. And that was right. That position was correct. The federal government did do what we were worried they’re going to do.

CLAY: Yes.

BUCK: And then red states were affected. And now at least Texas is responding to this, in my view, wholly appropriately and in a way that should set the stage for others. But I knew. I was already in contact with people from Ron DeSantis’ office who were saying they were trying to see if the legislative significance, if they could bring I it back. They knew what was coming and were gonna take action.

This whole “Let the free market decide! Oh, we don’t want to be Big Government here.” Big Government is when the federal government comes into your state and says, “You have to get the shot because we say so,” and a governor’s role — unless that governor is a little too fond of corporate donors and donations — is to step up and say, “We will protect the autonomy and the freedom of an individual using the plenary powers of the state. This is not a federal role. We will see you in court.” That’s what should have happened.

CLAY: And that’s what I am fascinated by. This is sort of like a great law school hypothetical. They come up with untested law and say, “Okay…” Anybody out there who ever wonders, “Hey, what’s it like in law school when you take an exam or even take the bar exam?” They very often come up, Buck, with hypotheticals that don’t have an easy answer and you have to argue either side.

So here we have a direct conflict between a state exercising its power under federalism to try and I think what you’re saying… I want people to understand what you’re saying, ’cause I think it’s really important. There’s a different between saying, “Hey, we’re not going to allow the federal government to come in and mandate something,” and that is the essence of Big Government.

And there’s a big difference between saying, “We’re not going to allow that,” right? Like you can still make your own decision about the vaccine, but you have to stand up for your individual state residents’ right and also your state corporations to make their own choices, right? And so this battle between who governs — the state or the federal government, as it pertains to it federal vaccine mandates — is unsettled law.

BUCK: To be clear, the Texas executive order says, “No, no, you can’t do this. If you’re doing business in the state of Texas right now, you cannot mandate that your employees or customers get the vaccine.” That’s what I really wanted.

CLAY: A big deal.

BUCK: That’s a big deal.

CLAY: That’s where the conflict is. Ultimately ,the courts are going to decide how this interplay works. And for people out there who are fascinated by federalism or who are intrigued about balancing power between the state and the federal government? This is why our framers created federalism, to allow state laboratories to exist in issues such as these.

BUCK: And as this unfolds, though, there’s also the reality of what does all this look like going into the winter? What do we really think of vaccine mandates if in fact we see not only is there a surge in the vaccinated getting covid, but a surge in the vaccinated, God forbid, getting hospitalized and even dying this winter, and the government is still going to be taking this tyrannical approach?

So as with more time we also will have more information and data about how reasonable — or unreasonable, in my perspective and your perspective — these kinds of mandates really are. So that’s why action now matters to defend people. What do you think about the Texas decision? Some of you might disagree with it. That’s fine. We’re open to hearing about it. But I’m sure some of you living in Texas are like, “Wooo, Texas! Land of the free.”


BUCK: We are your unsinkable aircraft carrier of freedom. That’s how we roll here on the Clay and Buck show. Jen Psaki disagrees. (chuckling)

CLAY: Of course she does.

BUCK: Of course she does. We just had this for you because they had their press conference, and we are right live with you, as you know, and bringing you breaking news throughout the entire three hours of the show every day as it happens. And sure enough, Press Secretary Jen Psaki, it came up that she was asked about the…

Remember, Ron DeSantis has banned most but not all, I believe — I need to check on this — vaccine mandates of any kind in the state. I think there’s still some private sector mandates that can go into effect. They’re looking at how they want to handle that, but certainly no government mandate including at the local level. Texas has said no vaccine mandates, period, by executive order.

Here is Jen Psaki speaking on the issue.

PSAKI: Well, I think it’s pretty clear when you make a choice that’s against all public health information and data out there, uh, that (sputters) it’s not based on what is in the interests of the people you are governing. Uhh, it’s perhaps, uh, in the interest of your own politics.

BUCK: Oh, it’s not in the interest of…? That would be news to the so many people we know Clay who have already lost their job, the so many people who are willing to lose their jobs go to the mat to avoid the shot. She’s like, “Ah, they don’t even care about this stuff.”

CLAY: Well, what’s the irony of the Biden administration which has been more political with covid than anything you could possibly imagine, accusing the governors of Texas and Florida — who are actually looking at the data and making rational public policy decisions, as opposed to trotting out Dr. Fauci and trying to cancel Christmas.

This is so absurd. And again, I just think we need to keep fighting this battle in this way, Buck. Remember, what they are doing in these states is just giving people the right to decide whether or not to get a vaccine. They’re not trying to prohibit the vaccine.

BUCK: Anti-mandate. It’s not antivax.

CLAY: Just a choice.

BUCK: Everyone needs to understand. Anti-vax would be I… By the way, anti-vax really should mean or has meant, “I don’t support vaccines. I’m opposed to vaccines in general.” That’s not even really the case. No one really holds that position. There’s a tiny —

CLAY: A tiny minority of people.

BUCK: Tiny, tiny minority of people that actually think that. There are some but I mean it’s very, very few. Anti-covid vax there’s more people that are opposed to it. They’re just like, “I don’t like this vaccine, I don’t trust it, it’s dangerous.” There are people who say that. But the fight that we’re having right now in the country is just about covid-19 vaccine mandates.

“Get the shot or you lose your job,” even if you have natural immunity, even if you have religious objection, even if you go down the list that’s what people are opposed to. Yet Jen Psaki in this White House — it’s not surprising — they can’t engage with the actual argument so what they do is pretend they’re arguing against something else. They create straw men and then act like pyromaniacs. That’s what they do.


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