If Texas Businesses Are Free To Require Face Masks, Why Can't They Require Proof of Vaccination?

Gov. Greg Abbott's position on private vaccination requirements is confused and confusing.

The Texas Supreme Court yesterday restored Gov. Greg Abbott's ban on local face mask mandates, which had been blocked by lower courts in cases brought by Dallas and Bexar counties. The Dallas Independent School District, which began the school year today, nevertheless is requiring all staff and students to wear masks, saying the Supreme Court's order, which remains in force until the cases are resolved, does not apply to it.

Meanwhile, private businesses remain free to require masks, but a state law bars them from requiring proof of vaccination. Cruise lines that operate out of Galveston nevertheless are requiring vaccine documentation from passengers, saying they are exempt from that rule.

This confusing situation involves disputes about Texas law, the effectiveness of mask mandates, the propriety of requiring vaccines that have been only provisionally approved by the Food and Drug Administration (FDA), the conflict between Abbott's preferences and federal guidelines, and the meaning of "freedom." Let's take those one at a time.

An executive order that Abbott issued on July 29 says "no governmental entity, including a county, city, school district, and public health authority, and no governmental official may require any person to wear a face covering or to mandate that another person wear a face covering." Abbott and Texas Attorney General Ken Paxton, both Republicans, argue that the governor's ban on mask mandates is authorized by the Texas Disaster Act of 1975.

"During a state of disaster and the following recovery period," that law says, "the governor is the commander in chief of state agencies, boards, and commissions having emergency responsibilities." Among other things, "the governor may control ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area." The statute also says "the governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster."

The local officials who object to Abbott's order say it exceeds his authority under the Texas Disaster Act. San Antonio and Bexar County argue that "the Governor's power to suspend laws during a disaster under the statute does not extend to the public health laws that allow the City and County to impose masking requirements on its own employees and members of the public who visit City and County-owned facilities." They say the law "gives the governor authority to suspend statutes and regulations governing state officials and agencies, but not the statutes giving local governments the authority to manage public health within their own jurisdictions."

The Texas Supreme Court seems inclined to side with Abbott in this dispute about statutory interpretation. But because its order names Dallas County rather than the Dallas Independent School District, school officials maintain that it does not affect their mask mandate. "Until there's an official order of the court that applies to the Dallas Independent School District, we will continue to have the mask mandate," Superintendent Michael Hinojosa said yesterday. "After a court rules, then I will comply, if it's not in my favor."

The latest guidelines from the Centers for Disease Control and Prevention (CDC) recommend "indoor masking for all individuals age 2 years and older," regardless of their vaccination status, in schools and child care facilities. But the evidence that "universal masking" in K–12 schools has played an important role in controlling COVID-19, even when vaccines were not available, is equivocal at best. Now that more than 70 percent of American adults have been at least partly vaccinated and vaccines are available to students 12 or older, it seems even less likely that the public health payoff from such mandates justifies the burdens they impose, even taking into account the prevalence of the especially contagious delta variant. It is therefore hard to argue with Abbott's order on that score, assuming it is within his statutory power.

By contrast, there is ample evidence that vaccines sharply reduce the risk of infection and are even more effective at preventing life-threatening symptoms. Furthermore, schools have a long history of requiring that students be vaccinated against other diseases. Abbott's order nevertheless says "state agencies and political subdivisions shall not adopt or enforce any order, ordinance, policy, regulation. rule, or similar measure that requires an individual to provide, as a condition of receiving any service or entering any place, documentation regarding the individual's vaccination status for any COVID-19 vaccine administered under an emergency use authorization." That prohibition also applies to "any public or private entity that is receiving or will receive public funds through any means, including grants, contracts, loans, or other disbursements of taxpayer money."

That language suggests public K–12 schools and state universities could, consistent with Abbott's order, require proof of vaccination after the FDA fully approves COVID-19 vaccines, which could happen next month. The order also seems to leave some leeway for private businesses untainted by "public funds" to require vaccine verification.

But a state law that Abbott signed on June 16 goes further, saying "a business in this state may not require a customer to provide any documentation certifying the customer's COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the business." It says any business that violates this provision is ineligible for state contracts, and it allows state agencies to "require compliance with that subsection as a condition for a license, permit, or other state authorization necessary for conducting business in this state."

So how is it that cruise lines operating in Texas are still requiring documented vaccination as a condition for boarding their ships? The law says it does not "restrict a business from implementing COVID-19 screening and infection control protocols in accordance with state and federal law to protect public health." The cruise lines argue that CDC guidelines qualify as such a "federal law." That argument seems debatable, since a federal judge in June blocked enforcement of the CDC's rules for cruise ships after concluding that they probably exceeded its statutory authority.

Then again, another federal judge this month ruled in favor of a cruise line challenging a similar Florida law, saying it likely violated the First Amendment by imposing content-based restrictions on speech and the Dormant Commerce Clause by imposing unjustified burdens on interstate and international commerce. Constitutional issues aside, Abbott, like Florida Gov. Ron DeSantis, is contradicting his own avowed commitment to deregulation and economic freedom by supporting a law that tells private businesses they may not adopt the COVID-19 precautions they deem appropriate.

"Texas is open 100 percent, and we want to make sure that you have the freedom to go where you want without limits," Abbott declared after signing the law banning proof-of-vaccination requirements. That position sacrifices private property rights and freedom of association in the name of an unlimited "freedom" that has never been legally recognized: the freedom of any given customer to dictate the terms on which businesses offer products or services.

When you weigh public health benefits against restrictions on individual freedom, George Mason law professor Ilya Somin argues, even government-imposed vaccine requirements are preferable to mask mandates. "You get the jab, but then you can move on with your life at worst in a day or two," he said during a MSNBC interview earlier this month. "And on the other hand, there's a big payoff in terms of saving lives, whereas there are other kinds of restrictions on liberty which are much more severe and are very different."

Mask mandates, Somin said, "are very different from vaccine mandates because they're a much more severe imposition on liberty, in that it's not just a jab and then you go on with your life. It's potentially anytime you go inside in an indoor public space, you get this pretty severe restriction, which is very painful and annoying for many people, particularly those who wear glasses, or have sensitive face[s], or other conditions. It also significantly inhibits normal human communication, which both studies and common sense show often comes through facial expressions."

Somin added that "the evidence that mask mandates actually slow the spread of COVID is much, much weaker than…in the case of vaccines. There's much more division among experts over that. So what we have there is a much more severe imposition on liberty for a much smaller payoff than with vaccines."

I'm not sure I agree with Somin's description of mandatory vaccination as "a small infringement on freedom." But assuming that school vaccine mandates are justified with respect to other communicable diseases, it is hard to see why COVID-19 should be treated differently—leaving aside the lack of full FDA approval, which is expected to be remedied soon. One counterargument is that COVID-19, which rarely causes life-threatening symptoms in children and teenagers, poses a less serious danger to them than other diseases for which vaccination is required.* Still, requiring teachers and students to be vaccinated certainly seems like a more cost-effective policy than requiring them to wear masks all day.

In any case, it hardly makes sense to say that private businesses should be free to require face masks, on the theory that customers who don't like that rule can go elsewhere, while prohibiting them from requiring proof of vaccination, which likewise is not tantamount to a legal requirement.

[*This post has been revised to note that COVID-19 poses a less serious threat to minors than other diseases for which schools require vaccination.]