COVID-19 Laws Debated by the Wyoming Legislature Might Face Legal Issues

As the Wyoming House and Senate continue to debate two bills that intend to block businesses and the federal government from implementing any kind of vaccine requirement, the constitutionality of those laws may be in question.

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While both bills have currently included stipulations that they don't take effect if pre-empted by federal law, the regulations in both bills will be pre-empted by what the federal government will soon be implementing.

Michael Duff, professor of law at the University of Wyoming, said, based on previous court rulings, it's unlikely that any law the Wyoming legislature passes related to blocking COVID-19 vaccine mandates will be upheld in federal court due to Supreme Court precedent.

Duff cited a 1992 Supreme Court case, Gade v. National Solid Waste Management, where the court stated:

"Section 18(b) [of OSHA] unquestionably pre-empts any state law or regulation that establishes an occupational health and safety standard on an issue for which OSHA has already promulgated a standard, unless the State has obtained the Secretary's approval for its own plan. Every other federal and state court confronted with an OSH Act pre-emption challenge has reached the same conclusion."

This means that the new rules that the Occupational Safety and Health Administration (OSHA) will likely institute can't be overruled by states like Wyoming passing their own laws.

While it's possible for the more conservative Supreme Court to reverse the established precedent that OSHA pre-empts state law, Duff said if they did it would overturn much of what he thought he knew about law.

"I can't say that it's impossible. What I can say is if the U.S. Supreme Court reversed this line of cases, it would basically throw everything I know about federalism into turmoil, but it's not impossible."

Duff said that many states will enact laws that don't get challenged in the courts because it's not worth it for organizations to put in the effort, but for what the Wyoming legislature is doing, it might be futile for the legislature to pass laws that will get struck down by the courts.

"There's lots of laws on the books that states will enact that is almost theatrical. This is some theater show that we're philosophically opposed to federal law. You can do that and in many cases nothing ever happens because it's not worth it for anybody to challenge the law...This is pretty likely to get challenged, and there really is no defense...It's really hard to look at this and not see it as almost a theatrical performance."