Opinion: Does the governor have the authority to order public employees to be vaccinated?

Paul Guppy of the Washington Policy Center offers a judge’s analysis on whether Gov. Jay Inslee has the legal authority to do what he is doing

Paul Guppy
Washington Policy Center

In August Governor Jay Inslee, citing his emergency powers, announced that certain residents of Washington state are now subject to a mandatory COVID vaccine requirement. His order applies to “… all public employees, on-site contractors and on-site volunteers at all public and private K-12 schools, public and private two- and four-year institutions of higher education, and early learning and childcare programs serving children from multiple households.”

The Governor ordered that those covered by the mandate must comply by October 18, 2021 or face termination or other workplace sanctions.

In response, Judge David A. Larson, co-chair of the Council on Independent Courts, provided an analysis for state supreme court Chief Justice Steven C. Gonzalez and other judges on whether the Governor has the authority to impose this mandate and whether the courts should enforce the order. 

Key Findings

• 1. Judge David A. Larson recently wrote a legal analysis for other judges on whether Governor Inslee has the authority to impose a vaccine mandate on public employees, contractors and volunteers. This analysis was recently posted openly online.

• 2. The analysis concludes that the Governor’s emergency powers do not give him the authority to create laws, only to waive or suspend them.

• 3. There is also no law or regulation that conditions public employment on any form of vaccine or other medical procedure.

• 4. The Governor, judges or any other state or local officials cannot mandate vaccinations as a condition of employment because no law passed by the legislature has given them the authority to do so.

• 5. Terminating a public employee for not performing an act that the public employer has no authority to compel would be a problematic violation of due process.

• 6. Legal precedents call into question attempts by government entities to require proof of vaccination for continued employment, when there is no statutory or regulatory authority to do so.

• 7. The Supreme Court, the Governor, and all other government bodies need to reconsider vaccine mandates that are not permitted by law.

The complete analysis was posted openly online; a link to the text of it appears below.

Read the full Policy Note here.

Paul Guppy is the vice president for research at the Washington Policy Center.