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OPINION | JOHN BRUMMETT: Prudence be damned

by John Brummett | November 21, 2021 at 1:51 a.m.


It doesn't matter right now whether state Sens. Trent Garner and Bob Ballinger, the state's bookends of right-wing extremism, think vaccine mandates are right or wrong or good or bad.

It doesn't matter what you think about that either. It doesn't matter what I think about it. It doesn't matter what anyone thinks about it.

And it doesn't matter right now that Arkansas has a new state law, compliments of its right-wing Legislature, outlawing vaccine mandates.

Let's get, then, to what does matter.

There currently exists a federal mandate that state government-run health facilities getting money from the federal Centers for Medicare and Medicaid Services impose vaccine mandates on employees by early January. In Arkansas, that's UAMS, a psychiatric nursing home and the human development centers, primarily.

Multi-state litigation against the federal mandate is percolating, which Gov. Asa Hutchinson is encouraging, arguing unconstitutional federal regulatory overreach.

Hutchinson indeed opposes vaccine mandates, but, as he seems to understand, that belongs on the earlier list of things that don't matter right now.

Absent any court injunction against the federal mandate, and with the January deadline coming right up, the sole issue becomes whether Hutchinson will make like Orval Faubus and unilaterally interpose himself to block the federal mandate on the basis that Arkansas has this state law against vaccine mandates as conditions of employment.

Because he tends primarily to the pragmatic rather than the demagogic, to be more like Mike Beebe than Ross Barnett or George Wallace, Hutchinson has, in the absence of court action otherwise, directed the state Human Services Department to proceed with planning to impose the federal mandate at the affected facilities.

There is a kicker, and it is that, while this is a matter of federal regulation rather than a law or court order, the federal government has the power of the purse. Absent state compliance, the federal government conceivably could suspend federal Medicaid money and put sick, disadvantaged and troubled people on the street.

Federal Medicaid money merely underwrites Arkansas public health care.

So, UAMS, being prudent, has already begun its push to require vaccinations in the 20 percent of its workforce not vaccinated already.

Here's how these kinds of things are supposed to work: The federal mandate is in effect until and unless a court rules otherwise, and, should a court rule the mandate void, state legislative acts to require or bar vaccine mandates would then, but only then, become relevant.

That's the American constitutional way. The president is the chief executive overseeing regulatory power. Congress could make laws confirming or undoing those regulations. The courts could, if presented with a case, decide on the constitutionality of the regulation or law.

Here is what states can do: They can get their attorneys general to file or join federal lawsuits seeking to have the federal mandate overturned. Period.

But until a favorable court verdict is achieved, it does not mean a thing that the aforementioned Garner and Ballinger, and a few of their lower-profile extremist legislative colleagues, are mad as heck and don't want to take it anymore.

Ballinger told this newspaper that the issue shouldn't be federal money, but state money, and that Arkansas should withhold state money to UAMS and the rest if those agencies violate the existing state law.

In other words: If any state-run public health facility in Arkansas gets caught complying with a federal regulation, then the sick and needy people of Arkansas must suffer.

But isn't the federal government essentially threatening the same thing if its regulation is not honored?

Yes, except that the federal government is acting with a presumption of regulatory validity unless a court rules otherwise. States have not had a great deal of success when acting in vengeful unilateral defiance of federal mandate. See the Civil War. See Little Rock 1957.

By the way, Ballinger's idea to pull state funding would amount to pulling all federal funding, or nearly all federal funding, because Medicaid is a federal-state match, with the federal share being much greater. The real accomplishment of pulling the state match would be ending the more vital federal match.

So, that's not the way to go. The state would be cutting off its nose to spite not just its face, but its whole body.

Here is a practical position: Any action that takes any money from UAMS, or risks as much--state or federal or both--ought to be avoided.

You do that by preparing to comply and by suing, if the latter is your preference.

Speaking of extreme surgical removal, Trent Garner got so worked up about UAMS forging ahead to comply with the federal vaccine mandate that he put on Twitter the following: "The cancer at the top must be cut out to save UAMS."

We might need a second opinion on that, medically, metaphorically and politically.


John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.



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