At the request of Craig Blair, president of the West Virginia Senate and Roger Hanshaw, speaker of the West Virginia house of delegates, Attorney General Patrick Morrisey, on Friday, provided his opinion on the constitutionality of vaccination and “passport” mandates. The AG’s opinion came in the form of a 21-page written document, breaking down legal precedent at both the state and federal levels, and applying his findings regarding public and private employers and employees.
As written in Morrisey’s opinion: “broad vaccine mandates without exceptions and vaccine-passport requirements may offend:
- Constitutional interests in personal medical decision-making;
- The sacred constitutional right to religious freedom; and
- Fundamental rights to assemble, vote, petition, and generally engage as a member of civil society.”
Morrisey went on to reference the constitutions’ of both the state and federal governments, and cite case-law and precedent from both entities’ supreme courts.
In a supplemental statement released by the Attorney General’s office Friday afternoon, Morrisey further stated, “There should be no reason for hesitation in passing a ban on vaccine mandates or passport requirements or, at a minimum, requiring religious or medical exemptions in such requirements. President Biden has shown us the pathway of what not to do. We need to encourage and suggest, but not mandate, our way to public health. I will be in litigation against the Biden Administration very soon to protect West Virginians from this historic overreach.”
While Morrisey’s research was thorough and his knowledge of legal history is impressive, his findings were inconclusive. Despite his articulate prowse, it took the Attorney General 21 pages of legal terminology and case citation (with the occasional bit of Latin layered in for emphasis) to express his belief that vaccination and passport mandates “may” offend certain individuals.
Although, Morrisey did offer his suggestions for what should be done by lawmakers:
“Additional steps can and should be taken by the Legislature to ensure that individual liberty interests are protected. The Legislature could:
- Preclude vaccine mandates for some or all employees;
- Bar governments from imposing vaccine passport requirements or bar such passport requirements outright;
- Ensure that employment-related policies contain, at a minimum, exceptions for those with religious objections and other objections, such as those of a medical or conscientious nature; and/or
- Implement a religious or conscientious objector exception for compulsory school vaccinations.”
While Morrisey did his level best to remain true-to-form by flaunting his opposition to anything the current administration does, his “opinion” regarding how state lawmakers should proceed falls uncharacteristically close to the conditions outlined in President Joe Biden’s recent executive order. Under the president’s new mandate, exemptions already exist for both medical and religious reasons.
Morrisey, who himself contracted COVID-19 in December of 2020, has been historically non-committal regarding mandates and precautions pertaining to the virus. In November, after Gov. Jim Justice implemented even stiffer restrictions to combat the pandemic through the use of executive order, including hinting at the possibility of legal repercussions for those failing to comply, Morrisey remained cautiously critical.
“Let’s be clear: no one is going to send people to jail,” Morrisey said at the time, through a statement posted to social media. “That simply should not be occurring with respect to the Governor’s executive orders.”
Less than two weeks later, after his COVID-diagnosis had been made public, Morrisey’s language seemed to soften.”
“Make no mistake about it, this can be a nasty virus, especially for those who are elderly or may be immunocompromised,” the AG said.
Morrisey has never publicly shied away from recommending West Virginians practice safe behavior, stating, “Socially distance, wear coverings, keep good hygiene, minimize personal contact, and stay away from immunocompromised individuals who may be particularly susceptible to the virus.” However, he has repeatedly stopped short of saying exactly what type of “coverings” he is recommending that West Virginians wear.
What is perhaps most unsettling in Morrisey’s dissertation comes in stark contradiction to his perceived status as a defender of constitutional rights. In the second page of his opinion, Morrisey states, “Even if a blanket mandate or passport requirement could pass constitutional muster, the Attorney General could not endorse it.”
This would seem to indicate that if any measure to safeguard public health taken by the President of the United States or any other sanctioned governmental-body were deemed to be within the constraints and responsibilities of the state or nation’s constitutions, Patrick Morrisey would stand in opposition to the laws he is sworn to uphold.
During his Friday, September 10 coronavirus response media briefing, Gov. Justice reported that 818 West Virginians are currently hospitalized due to complications of COVID-19, matching the state’s record-high number of hospitalizations throughout the pandemic.
Although not specifically commenting on Biden’s recent executive order or the possibility of action on the part of the state legislature, Justice, on Friday, said, “We’re going to continue to lose people in this surge and it brings a level of sadness over all of us. We offer up our prayers to all those we’ve lost, and we offer our prayers that we’ll all realize that going unvaccinated is really making a big mistake.”
The West Virginia Daily News will continue to provide updates as this situation develops.