A Close Read of the Ordinance to Ban Public Health Mandates in Clark County, WA
When I posted a video about the reasons I am unable to support this ordinance, many proponents responded by saying I misrepresented, and should “just read it.”
I did read it. Multiple times.
I take all such proposals seriously and read each closely. Below are my notes on the text to help readers better understand the text and subtext of the proposal.
Text of the proposed ordinance is copied and pasted below, as presented to the council. My notes are italicized and refer to the ordinance section immediately above. Links and citations for more information are embedded into the text.
TLDR: passing this ordinance would threaten the public’s health, put Clark County in conflict with state law, and overreach the county’s authority to impose law on its cities. It would also continue to erode legal protections for those who experience true legal discrimination.
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AN ORDINANCE prohibiting all mandates within Clark County that discriminate against citizens regarding their health status and or that violates existing rights to health information privacy.
Note 1: There are no mandates at the local, state, or federal level in Clark County that do either of these things. The proposed ordinance’s premise is that current state-level mask and vaccine mandates discriminate, but they do not. Exemptions are in place for those who cannot participate. A mandate to protect the public’s health is not discrimination.
WHEREAS, Clark County is a vibrant community due to the diversity of our residents. All who live here, work here, and enjoy spending time in Clark County should be free from discrimination and injustice; and
Note 2: While I agree with the sentiments of this opinion, its inclusion here is sleight of hand. A proposal to remove public health mandates and, as a result, increase spread of disease in our community, does not protect people who are vulnerable and does not reduce injustice.
WHEREAS, Amnesty International, renowned for championing human rights, defines discrimination as “Discrimination occurs when a person is unable to enjoy his or her human rights or other legal rights on an equal basis with others because of an unjustified distinction made in policy, law or treatment;” and
Note 3: This appears to be the webpage the writer consulted to find a definition of discrimination that suited their purpose. However, the writer fails to provide the full context that Amnesty International does not include those who refuse to follow public health rules in a protected group or class.
In fact, Amnesty International has a position on mask and vaccine mandates which is directly opposite. They state mask and vaccine mandates are justified, reasonable public health measures and are not violations of individual rights, as long as the mandates are implemented with an even hand that allows for exemptions: “…common sense tells you that wearing a mask, if it is advised or mandated by health authorities, is a reasonable measure to protect your health and the health of others.”
In 2022, the agency did tell the country of Italy that its vaccine mandates were discriminatory because there was not a testing/masking option for the unvaccinated. It’s important to note they did not say mandates were across-the-board unjust: they called for reasonable alternatives. These reasonable alternatives already exist in Clark County and for all of the state of Washington.
Note 4: The more important point here is that Amnesty International, worthy organization though they are, does not govern Clark County. For that we look to local, state and federal law.
Protected classes are how the law conceptualizes protections against discrimination. Conflating reasonable public health measures with discrimination against protected classes intentionally obscures decades of civil rights and disability rights litigation and legislation. In a legal sense, “discrimination” is unequal treatment based specifically on age, disability, ethnicity, gender, marital status, national origin, race, religion, or sexual orientation. Not wanting to take a vaccine is not a protected class. Not wanting to wear a mask is not a protected class.
https://www.hum.wa.gov/employment
https://www.law.cornell.edu/wex/category/civil_rights
https://www.law.cornell.edu/wex/discrimination
WHEREAS, Governor Jay lnslee has unilaterally, without legal authorization from the legislative branch, required all government employees, healthcare workers, school employees and volunteers and many large employers to vaccinate against CoVid-19; and
Note 5 : This is inaccurate. The Governor’s office required vaccinations for some state employees under the purview of the Executive Branch, including those in education and medical and healthcare settings. Local government employees were not included in the Governor’s mandate unless they had specific health care interaction (i.e., worked in medical units of jails). Private employers were only included if they were in health care settings or were state contractors working on-site with state employees.
https://www.governor.wa.gov/VaccineMandateFAQ
Further, this clause of the proposed ordinance misrepresents that the executive branch needs the approval of the legislative branch to make operations decisions.
WHEREAS, thousands upon thousands of Clark County residents have a health condition status as CoVid-19 survivors, granting them “durable” immunity as defined by the National Institutes of Health (NIH) should not be coerced into taking a CoVid-19 vaccine or lose their jobs or being denied equitable treatment; and
Note 6: This clause misrepresents the work of NIH. Publications from early 2021 indicated researchers had found some evidence that acquired immunity (gained by having been infected) could last as long as eight months. Later in the year, research indicated that vaccine-induced immunity was more effective, for longer, against multiple variants, than acquired immunity. Further, in the same document the NIH director wrote (emphasis added):
“The hope is that acquired immunity from the vaccines will indeed produce long-lasting protection against SARS-CoV-2 and bring an end to the pandemic. These new findings point encouragingly in that direction. They also serve as an important reminder to roll up your sleeve for the vaccine if you haven’t already done so, whether or not you’ve had COVID-19. Our best hope of winning this contest with the virus is to get as many people immunized now as possible. That will save lives, and reduce the likelihood of even more variants appearing that might evade protection from the current vaccines.”
WHEREAS, the right to be free from an invasion of bodily integrity by the state has found support in the First, Fourth and Fourteenth Amendments of the Constitution. Courts have generally respected the principle of bodily integrity, promoting it as sacred, inviolable, inalienable, and fundamental, while the 14th Amendment specifically states, “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”; and
Note 7: Only partially true, and coming very close to full misrepresentation. While it is true that bodily integrity has been protected in some cases (notably, federal cases related to reproductive rights (Griswold and Roe)), other cases have upheld the right of government entities to infringe on bodily integrity when that freedom may harm others (seatbelt laws, helmet laws, no-smoking laws, vaccines for school-aged children, forced blood draws of DUIs).
But rather than engage in a tit-for-tat that would require extensive legal research, the ordinance writer’s statement here implies that these rights have been universally and unilaterally upheld regardless of context. This is not true, and also does not address cases related to COVID-19 mandates.
As to the legality of orders in Washington State, I asked the Governor’s Office for an update on cases that have been brought forward. Here is their answer:
“Of the roughly 10 lawsuits that have directly challenged the Governor’s COVID vaccine mandate emergency order, zero relief has been granted to any of the plaintiffs to date. Every motion for a Temporary Restraining Order (or a preliminary injunction) has been denied. Some lawsuits have been voluntarily dismissed. Others are still pending. This is accurate as of January 26, 2022.
Of the 45 total number of lawsuits filed that have challenged a variety of the Governor’s COVID emergency orders (including but not limited to the vaccine and mask COVID emergency orders), zero plaintiffs have won any type of relief. Again, not all cases are fully resolved. This is accurate as of December 30, 2021.”
The 10th Amendment to the US Constitution gives the government “police powers,” which include the power to enact public health mandates, and the right to do so has consistently been upheld in court.
Courts have also upheld that individual rights are not absolute. Individual rights do not include the right to harm others. Put into the context of mask-wearing, one’s individual right to not wear a mask in public is not greater than everyone else’s right to enter the public space safely.
There are many citations of these precedents by reputable scholars, and contained in peer-reviewed and reputable journals. Here are a couple more of those citations.
https://clsbluesky.law.columbia.edu/2020/10/29/to-mask-or-not-to-mask-its-not-a-constitutional-question/#_ftn12
https://www.natlawreview.com/article/masks-pens-down-still-litigating-mask-mandates-2021But what about even more recent cases?
In recent Supreme Court action on the federal vaccine mandate, the Court decided that the President did not have the authority to administer a mandate for private businesses under OSHA, the workplace safety administration. They upheld the Executive Branch’s ability to require vaccines for health workers under federally-funded Medicare and Medicaid programs. That is a narrow procedural ruling, not a referendum on vaccines.
https://www.cnn.com/2022/01/13/politics/supreme-court-vaccine-mandate-covid-19/index.html
In a separate case in New York State, a similarly procedural ruling was made. The judge did not rule broadly against a mask mandate. He ruled that, under current New York law, the Governor needed the approval of the legislature to implement a mandate. That is procedural, not existential.
https://www.cnn.com/2022/01/24/us/new-york-state-mask-mandate-ruling/index.html
WHEREAS, religious discrimination has been widely described as also protecting “moral objectors” or those that hold non-religious beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views 29 CFR § 1605.1. Both Washington State & the United States Constitutions protect these “religious” freedoms of moral objectors from contrived vaccine orders, and
Note 8: While the Washington Constitution, like the US Constitution, does grant religious freedom, the state Constitution continues a thread we have already seen consistently throughout this research: an individual right is not protected if exercising that right injures others: “the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.” (Article 1, Section 11)
The attempt to imply that religious freedom has been infringed here is also moot: The Governor’s orders provide for exemptions.
https://www.governor.wa.gov/VaccineMandateFAQ
Further, the writer’s characterization of vaccine mandates as “contrived” clearly shows their true intent: to do away with all public health mandates, regardless of what they say about “discrimination.”
WHEREAS, vaccinations over time have played and continue to play an important role in public health, however, the CoVid-19 vaccines are still under Emergency Use Authorization and full clinical trials have not yet completed. Every person should be free to informed consent and never be coerced by threat of losing one’s job or equitable access to services, freedoms to travel or general pursuit of life, liberty and the pursuit of happiness as protected in the Washington State & United States Constitutions; and
Note 9: This section confuses two points, and misrepresents the authorization status of vaccines.
The Pfizer vaccine has already achieved FDA approval. Further, Emergency Use Authorization is not something that is arbitrarily awarded. It requires lengthy clinical trials and the ability to meet many high standards–and those trials are underway.
The second part of this statement has already been addressed above: there is ample legal precedent that validates a government’s authority to implement mandates related to protecting public health. Individual rights do not include the right to harm others. Further, because there are exemptions to the mandates, the claims of coercion are not valid.
WHEREAS, no vaccine mandates can be enforced without violating the Privacy Rule implemented through the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) which guarantees the protection of all health information and common identifiers (e.g., name, address, birth date, Social Security Number); and
Note 10: This clause is incorrect. HIPAA, as the word “insurance” indicates in its title, does not govern the enforceability of vaccine mandates. HIPAA only relates to insurers, healthcare providers, and related businesses.
While it may be a violation of HIPPA for an insurer to provide vaccination status to an employer without the employee’s consent, it is not a violation of HIPAA for an employer, such as a restaurant or a retail business, to ask an individual about their vaccination status. It is, further, not a violation of HIPAA from the proprietor of a restaurant or retail business to ask a patron about their vaccination status.
WHEREAS, demanding employees to divulge their personal medical information discriminates against them based on their perceived medical status, in contravention of the Americans with Disabilities Act. (42 USC §12112(a)); and
Note 11: This clause is false. The ADA does not prevent employers from asking about an employee’s vaccination status. It also does not prevent employers from requiring a vaccine. That information must be kept confidential, as must all personal employee information.
WHEREAS, in 2020 Clark County Council overwhelmingly passed a resolution relating to eliminating discrimination as an effort to build a truly equitable and inclusive community (NO.2020–06–06), and
Note 12: This clause is false. The resolution adopted on June 6, 2020 condemned systemic racism. It is, at best, intellectually dishonest to claim systemic racism is the same thing as an individual’s refusal to follow public health orders. This is an intentional, false equivalency intended to erode decades of civil rights and disability rights case law and precedent. The inconveniences presented by having to wear a mask as a public health measure are far different from the harms caused by systemic racism.
WHEREAS, the Clark County Council is empowered through the Home Rule Charter 1.3 “The powers of the county granted by this charter shall be liberally construed, and the specific statement of particular powers shall not be construed as limiting the general powers,” 2.4C: to “Adopt by ordinance comprehensive plans and land development codes, including improvement plans for present and future development in the county.” 8.7: The “county will ensure no person is discriminated against because of age, sex, marital status, sexual orientation, race, creed or color”; and
Note 13: The writer here misinterprets sections of the county charter in order to support penalties on those who violate the ordinance.
Section 1.3 is about county powers. There is nothing in county, state, or federal law that gives a county the power to overrule state laws, nor to infringe on the governance of other jurisdictions (cities) within the county. The Governor’s orders, including mask and vaccine mandates, have the force of law. In general, federal law is supreme to state law, and state law is supreme to local law.
2.4C relates to land use. There is nothing in state or county law that condones a punitive approach to land use, which this proposal puts forward as penalties for violation.
Section 8.7 clearly states the county shall not discriminate against “any legally protected status.” Once again, choosing not to take a vaccine, or not wear a mask for the benefit of public health, does not enter one into a class protected by law.
WHEREAS, the Council is considering the matter at a duly-advertised public hearing and concludes that adoption will further the public health, safety and welfare; now,
Note 14: There is no evidence that removing health and safety measures would do anything to advance public health, and there are many more medical opinions that removal would harm public health. Vaccines are safe and effective at reducing severe illness and preventing hospitalization. Masks, when worn correctly, and especially when they are KN95 grade or better, help prevent infection.
THEREFORE, WE CALL ON THE CLARK COUNTY COUNCIL TO IMMEDIATELY PASS AN ORDINANCE THAT PROHIBITS ANY AND ALL DISCRIMINATORY MANDATES, ORDERS OR COMPULSORY REQUIREMENTS WITHIN CLARK COUNTY BUILDINGS OR LAND USE THAT DISCRIMINATES AGAINST AN INDIVIDUAL BASED ON HIS OR HER CURRENT HEALTH STATUS, VIOLATES HEALTH PRIVACY OR THAT DOES NOT HONOR HEALTH, RELIGIOUS OR MORAL OBJECTORS IN AN EQUITABLE MANNER. No business, government agency, educational institution, public, health related, religious, corporate or private organization that operates on land within Clark County will be allowed to discriminate via employment practices or denial of services in relation to any other or future mandates or orders that discriminate in a like fashion (lockdowns, face coverings, etc). Any violators will be subject to fines, risk permit denials, and risk land use permits.
Note 15: First of all, there is no mandate or order in Clark County that discriminates in the way they describe because, as demonstrated in notes above, the ordinance’s definitions of discrimination are not legally valid. Further, since medical and religious exemptions are provided, parties are treated equitably.
But, to take this proposal in the context within which it is written: the writer appears to believe that current state mandates are discriminatory, and those are the only mandates in effect in Clark County. They are, accordingly, asking the County Council to override these state orders. Which would, if enacted, be a ban on all vaccine and mask mandates within Clark County.
Further, the language in this section makes this order apply to the entirety of Clark County. That includes public agencies, nonprofit organizations, schools, hospitals, nursing homes, and thousands of private businesses that are located within the jurisdiction of separately governed cities. This is a remarkable overreach of the county’s actual authority.
Banning state mask and vaccine mandates in Clark County would mean:
• Businesses would not be able to require masks for entry, even if they want to do so to protect their employees and customers.
• Hospitals that serve Medicare/Medicaid patients would not be able to require the federally mandated vaccines of their staff, putting them in conflict with federal law.
• Schools, which are subject to the Governor’s mandates, would need to choose whether to violate the Governor’s order (which has the force of law) or follow county law which breaks it. See this article to learn about an Oregon school district that will lose state and federal funding for lifting a state mask mandate.
It would mean that the county would no longer be in compliance with Governor’s orders and federal mandates, and thus could risk funding for state and federal programs our community relies on. Many county programs are funded by federal and state programs, and those programs, quite reasonably, require that the recipients of funds not be in violation of state/federal law.
Because this ordinance proposes punitive land use and permitting as penalties, even more state funds related to planning and land use may also be in jeopardy. There is, unsurprisingly, no law that specifically addresses whether or not a county can use land-use planning to punitively enforce its own violation of state law, while also receiving state funds to do land use planning. Which means even more costly lawsuits for the taxpayers of Clark County.
With regard to federal funds, especially ARPA funds the county has received related to the pandemic, the rules for local spending indicate (see page 41) that funds may not be used to undermine COVID-19 mitigation strategies. Relief funds have been used to support most county departments, from the permitting office to the Sheriff to the roads. That could not continue if the county is out of compliance. To maintain these basic programs that serve all residents of Clark County, will mean an impact to your taxes, or a steep decline in the levels of service available, because the county will simply be unable to afford to continue.
The costs for multiple lawsuits that would also result from the county council’s passage of an ordinance that violates state and federal law and overreaches its authority into cities will also be borne by taxpayers. Clark County residents have already paid the costs for multiple lawsuits based on bad policy decisions.
Which gets to the final, and simplest, point which supersedes everything. Counties are subdivisions of and thus subordinate to the state. State government is subordinate to the federal government. If Clark County passes a law that violates state and/or federal laws or orders, it will be unenforceable and it will harm Clark County and its people.
