Legislative leaders ask AG Morrisey for a formal opinion on mandates

House Speaker Roger Hanshaw and Senate President Craig Blair together asked Attorney General Patrick Morrisey for a formal opinion on how the state Constitution would guide public policy around vaccination requirements.

Craig Blair

“As you know, there has been an increasing amount of public discussion of late regarding the policies of mandatory vaccinations and vaccine passports,” the legislative leaders wrote in a letter delivered Monday afternoon.

“With the quickening spread of the covid-19 delta variant, it would be extremely helpful to better understand how such policies may implicate the W.Va. Constitution and W.Va. Code 15-5-6, which as you know provide extremely broad latitude to the executive branch during a declared State of Emergency.”

West Virginia’s number of covid cases has risen sharply, skyrocketing by 163 percent over the past two weeks.  Gov. Jim Justice has urged vaccination but has held off on mandates. Some healthcare providers have announced vaccination mandates for their employees.

Roger Hanshaw

Hanshaw and Blair, who lead Republican supermajorities, may genuinely desire knowing the Attorney General’s interpretation of state law regarding the pressing public policy matters.

Another factor in the mix could be recent social media posts by Morrisey, also a Republican.

In a Facebook post from a few days ago, he touted a ban on vaccine passports. “I’ve been told this is being bottled up by leadership,” he wrote, generating more than 800 comments and over 300 shares.

In another, he again called on the Legislature to move against mandates.

On Twitter, the Attorney General replied to a commenter who had urged him to get the Legislature back into session and “Quit being a windbag and do something.”

“Please look at who does things and who doesn’t,” Morrisey responded.

That exchange led to the commenter clarifying that he’d hoped Morrisey could “motivate or push for reconvening to ensure our rights are addressed.” Morrisey agreed and told the commenter to keep the faith.

Now, Hanshaw and Blair have asked the Attorney General to prepare more formal assessments. They want to know:

  • Does the W.Va. Constitution prohibit the State of West Virginia from mandating the vaccination of state employees?
  • Does the W.Va. Constitution prohibit the State of West Virginia from requiring “vaccine passports,” as have been required in other jurisdictions, in order to enter either public or private establishments throughout the state? For purpose of this request, a vaccine passport would be any certification or required verification through some documentary or electronic means that would make access to some public accommodation or service dependent upon proof of a required vaccination status.
  • Does the W.Va. Constitution prohibit private organizations or businesses from implementing cither mandatory employee vaccinations or the use of vaccine passports in order to frequent the establishment? Would legislation, similar to measures which have been passed in other jurisdictions, prohibiting private organizations or businesses from implementing either mandatory employee vaccinations or the use of vaccine passports violate the U.S. and/or W. Va. Constitutions?

The Attorney General has written such formal guidance before, for example last year when he said the broad discretion under the governor’s State of Emergency declaration provided authority to expand access to absentee voting.

Invited to respond this evening to the latest request for an interpretation of the law, Morrisey’s office briefly acknowledged it.

“We are in receipt of the letter and will review it carefully,” said Curtis Johnson, spokesman for the Attorney General’s Office.

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