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University of Montana constitutional law expert says new federal Covid-19 vaccine rules should be decided soon

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Posted at 10:23 AM, Nov 06, 2021
and last updated 2021-11-06 12:23:15-04

Medical entities that rely on Medicare or Medicaid funding, and businesses with more than 100 employees now tasked with making sure all their employees are vaccinated for Covid-19, are now trying to figure out how to move forward.

The new federal rules even include fines for businesses that don't accomplish the task, while Montana's state law, HB 702, says it's illegal to discriminate against a person's vaccine status.

University of Montana constitutional law professor and legislative expert Anthony Johnstone said it's not actually state law versus federal law.

Johnstone said in the end, it doesn’t matter if Montana state law says it’s illegal to force a vaccine mandate.

He said if the federal rule is found legal under federal law, the new vaccine rules will move forward.

“The federal constitution makes federal law the supreme law of the land. And the question before the courts in these challenges are going to be whether these rules follow federal law. If the federal vaccine mandate rules follow federal law, and they're the supreme law of the land, and any state law to the contrary gives way,” said Johnstone. “If the federal rules do not follow federal law, they're not valid, and state law would fill in the gaps.”

Johnstone said he expects the courts to weigh in on the matter soon and employers and employees should know more in the next few weeks.