Kansas attorney general tells ‘overreach’ panel he will challenge federal vaccine mandate

By: - October 29, 2021 2:18 pm

Sen. Renee Erickson, a Wichita Republican, serves as chairwoman of Friday’s meeting of the Special Committee on Government Overreach and the Impact of COVID-19 Mandates. (Sherman Smith/Kansas Reflector)

TOPEKA — Kansas Attorney General Derek Schmidt told lawmakers Friday he plans to file a lawsuit challenging President Joe Biden’s vaccine requirement for employees of federal contractors.

The Republican candidate for governor appeared by video before a meeting of the Special Committee on Government Overreach and the Impact of COVID-19 Mandates, which Statehouse leaders assembled in response to the president’s orders and proposed rules for safe workspaces. Democrats called Friday’s meeting a “political circus” and objected to the cost of litigating against the federal government.

Biden issued executive orders requiring federal employees to be fully vaccinated by Nov. 22 and for contractors to have employees fully vaccinated by Dec. 8.

Separately, the Occupational Safety and Health Administration is preparing rules for large businesses to require their employees be fully vaccinated or submit to weekly testing. The Centers for Medicare and Medicaid Services are also preparing rules for medical providers, including nursing homes and providers of in-home services, to require vaccinations or risk losing federal funding.

The mandates allow for limited exceptions on the basis of medical conditions, disabilities or sincerely held religious beliefs.

Kansas Attorney General Derek Schmidt speaks via video link to overreach committee, where he outlined plans to challenge a vaccine mandate for federal contractors. (Kansas Legislature YouTube screen capture/Kansas Reflector)

Schmidt sent a letter to Biden this week questioning the “shaky legal grounds” of instructing federal agencies to insist contractors’ employees be fully vaccinated.

“We don’t think that works as a matter of law,” Schmidt told the legislative panel. “But I’m quick to say it hasn’t been tested.”

Schmidt said he is hearing more concerns from Kansans about the proposed CMS rules. He said he expected to challenge those rules after they are issued.

“The ones who are most concerned are those providers that already were on the verge of survivability,” Schmidt said. “They can’t get employees, they’re hanging on by a thread, and they’re worried that if a federal mandate requires them to do things that result in another four or five, 10, whatever the number is, employees leaving, and particularly in this marketplace, they’ll be in a position that they can’t continue to operate.”

Sen. Renee Erickson, a Wichita Republican and chairwoman of the committee, refused to take questions for Schmidt from committee members, saying he would be invited back at a later date.

“Today’s political circus was a colossal waste of taxpayer dollars and time, so it’s no surprise to find Derek Schmidt at the center of it,” said Emma O’Brien, spokeswoman for the Kansas Democratic Party. “Schmidt continues to use his role as Kansas’ attorney general to advance his own politics no matter how much it costs Kansans — and even refused to take any questions because he can’t answer for his failed record.”

Rep. John Carmichael, D-Wichita, questions Kansas solicitor general Brant Laue about the cost of litigating conflicts between state and federal law. (Sherman Smith/Kansas Reflector)

Brant Laue, solicitor general for Schmidt’s office, answered questions on the attorney general’s behalf. Laue said U.S. Supreme Court rulings upholding vaccine mandates, including a 1905 landmark case, predate an “explosion in individual rights” established by more recent decisions.

“How those cases would stand up today, I think, is an open question,” Laue said.

Rep. John Carmichael, a Wichita Democrat, questioned Laue on how much money it will cost the state to defend existing laws and any future ones that create a conflict between state and federal authority. He pointed to state’s agreement in September to pay up to $1.9 million in legal fees to the American Civil Liberties Union for defending an unconstitutional restriction on voting rights.

“How much tax money are we going to spend on this, what I believe to be jousting at windmills?” Carmichael said.

Laue said the Attorney General’s Office plans to make do with existing resources and staff.

“Could we at least agree,” Carmichael responded, “that when your lawyers take their time away from prosecuting murderers and rapists and instead want to joust with the federal government on supremacy clause issues, that that means we have less legal resources in your office to pursue crime?”

Laue said the solicitor general’s division is separate from the division that handles criminal cases.

Sen. Mike Thompson, R-Shawnee, right, repeatedly made false statements during Friday’s meeting about the safety and efficacy of vaccines. (Sherman Smith/Kansas Reflector)

Sen. Mike Thompson, a Republican from Shawnee, questioned whether an executive order carries the weight of law, which it does, and how an order can “trickle down” to those who do business with the federal government.

“I know there’s a question there somewhere,” Thompson said. “I’m just struggling with that.”

He also repeated a debunked conspiracy theory that claims there are no authorized vials of the Pfizer vaccine currently in the United States, and falsely said the COVID-19 vaccines are dangerous.

“I’m just pointing out that there’s there’s so much information here that we have not considered in this fight,” Thompson said. “I’m just trying to look for anything we can use at the state level to fight this and give people personal liberty.”

The Kansas Department for Health and Environment has recorded 6,415 deaths from COVID-19 since the start of the pandemic, as well as more than 434,000 infections. Those numbers include 70 new deaths and 1,916 new cases between Wednesday and Friday.

The Centers for Disease Control and Prevention reports that 63.1% of Kansans ages 12 and older, and 65.2% of adults, are fully vaccinated.


‘The modern day Jew’

The overreach committee also heard testimony from “select organizations and agencies.” Representatives for the Kansas Chamber of Commerce and International Association of Machinists and Aerospace Workers in Wichita were allowed to speak, while dozens of others were limited to written-only testimony.

Cornell Beard, president of the machinists union, expressed frustration with political figures for not taking any action to prevent implementation of the federal mandate for contractors as the Dec. 8 deadline approaches.

He said he was a “big fan” of Democratic Gov. Laura Kelly, who once walked a strike line with union members. Now, he said, he has the ears of 20,000 voters in Wichita.

“Guess whose going to be my friend come election time?” Beard said. “But she just lost me, because I haven’t seen crap. And all I’m telling you, word is, anybody who runs against anyone currently, we’re voting for the opposite guy. That’s what our membership’s saying. I’m begging you guys: Do something. File something. We can have meetings all day.”

Beard described the feelings of mistrust among union members faced with the consequence of walking away from their livelihood because they don’t want to get a vaccine. He also complained about policies that require employees who aren’t vaccinated to wear a mask.

“In my opinion, that’s the start of a huge problem because now we’re basically saying you’re the modern day Jew,” Beard said. “You’re going to wear that star, and you’re going to wear it, and we don’t give a damn if you complain about it or not.”

Kansas rabbi Moti Rieber responded on Twitter: “In case anyone wants a comment, this is stupid and deeply offensive.”

Rep. Brenda Landwehr, R-Wichita, told Beard she was intrigued by his testimony.

“It’s to the point where this is racism against the modern day Jew, which is anybody that disagrees,” Landwehr said.

Sen. Pat Pettey, D-Kansas City, asks questions during Friday’s hearing of the overreach committee. (Sherman Smith/Kansas Reflector)

Sen. Pat Pettey, D-Kansas City, challenged Beard to explain how the state should fight COVID-19.

“Well, whatever works,” Beard said.

Pettey asked if union members believe COVID-19 vaccines work.

“It’s not a vaccine,” Beard said.

He claimed that 15 union members have died after getting vaccinated. Pettey asked if he knows how many people have died from COVID-19, and Beard said he could tell her how many people have died from alcohol.

The committee also allowed testimony Friday from Republican legislators, members of a prominent anti-vaccine group, and others who oppose mandates. The committee didn’t allow for comments from those with dissenting views.

Additional public testimony is planned for Saturday.

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Sherman Smith
Sherman Smith

Sherman Smith is the editor in chief of Kansas Reflector. He writes about things that powerful people don't want you to know. A two-time Kansas Press Association journalist of the year, his award-winning reporting includes stories about education, technology, foster care, voting, COVID-19, sex abuse, and access to reproductive health care. Before founding Kansas Reflector in 2020, he spent 16 years at the Topeka Capital-Journal. He graduated from Emporia State University in 2004, back when the school still valued English and journalism. He was raised in the country at the end of a dead end road in Lyon County.