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Gov. Abbott is 'not going to win' on COVID vaccine mandates, legal experts say

Abbott defended his ban on COVID vaccine mandates, but lawyers say it won’t stand up in court because federal orders trump state orders.

DALLAS — Governor Greg Abbott is fully vaccinated against COVID and has consistently said the vaccine is safe, effective and the best defense against the virus.

But he also said getting a COVID vaccine should be voluntary.  

He went a step further when he issued an executive order banning any entity in Texas from mandating a COVID vaccine for customers or employees.

His state order directly contradicts a federal order announced by President Joe Biden in September.

RELATED: Gov. Greg Abbott issues executive order banning COVID-19 vaccine mandates by any Texas entity

The Biden administration will force businesses with more than 100 employees to require all workers to get a vaccine or submit to weekly COVID tests.

“It’s really the governor versus the federal government. And he’s not going to win,” Dallas lawyer Eric Cedillo said of Abbott.

Cedillo is an adjunct clinical professor of law at SMU.

Federal orders will supersede anything Texas does, Cedillo said, even if Abbott’s order banning vaccine mandates is passed into law during a special session.

Abbott has put the issue on the agenda and Lt. Gov. Dan Patrick tweeted that the issue will be taken up by the Texas senate.

“I don’t think there’s anyone that believes the governor’s order is going to stand up against federal law that’s almost completely contrary to what he’s suggesting,” said Cedillo.

Abbott defended his order Tuesday night, telling reporters in Beaumont that he supports the vaccines, but also supports vaccine choice.

"I’ve taken the vaccine I know the vaccine is very effective at preventing and defeating COVID," Abbott said before speaking at a Beaumont Chamber of Commerce event. "That said, I believe in vaccine choice in the state of Texas where everyone has the right to make their own decision about whether or not to take the vaccine."

He said his order was a “move to restore freedom to individuals."

RELATED: No, Southwest's vaccine requirement didn't cause the airline's cancellations, CEO says

White House Press Secretary Jen Psaki sharply criticized the governor’s order.

“I think it’s pretty clear when you make a choice that’s against all public health information and data out there, that it’s not based on what is in the best interest of the people you are governing, it’s perhaps in the interest of your own politics,” said Psaki.

The executive order differs from current state law regulating vaccines in the state of Texas.

Currently, state law requires Texas public school students to be “fully immunized against diphtheria, rubeola, rubella, mumps, tetanus, and poliomyelitis.”

Current law allows for vaccine exemptions on religious or medical grounds, but a medical exemption requires an affidavit from a physician who believes taking the immunization would poses a “significant risk” to the student or the student’s family.

Abbott’s executive order on COVID vaccines differs because it is “pretty all encompassing,” said Cedillo.

“I think it applies to anybody who wishes to opt out,” he said.

While Psaki views Abbott’s moves through a partisan lens, Cedillo is a non-partisan legal mind.

He too sees politics at work.

“In months or years past, the governor wouldn’t do this because he knows it’s contrary to federal law,” Cedillo said. “But, of course, he’s got a primary he’s got to win next year and he’s got two folks to the right of him that he needs to elbow out.”

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