The White House is standing by President Joe Biden's COVID-19 vaccine mandates, while Texas Gov. Greg Abbott has signed an executive order prohibiting such orders in his state. But Harvard professor emeritus Alan Dershowitz told Newsmax that he'd argue that either side should be decided through legislative action, not through the executive branch of government.
"We have federal versus state," Dershowitz said Tuesday on "American Agenda." "The state says one thing; the federal government says another. The federal government generally wins those battles under the supremacy clause."
The federal mandate, however, isn't a legislative action, but one enacted by Biden based on his interpretation of OSHA rules, Dershowitz said. The Texas law, though, isn't based on a statute, but the Republican governor has said he wants a special session of the Legislature there, so "it's very hard to know what will prevail in the Supreme Court," he added.
The court will have "a lot of room to play" with concepts of exemptions from vaccines, be they conscientious, religious or medical, Dershowitz continued.
"This is clearly going up to the high court, and nobody can predict with absolute certainty the outcome. It will depend on whether it's legislative or gubernatorial what exceptions there are," he said.
Dershowitz also discussed the use of executive privilege, as former President Donald Trump is claiming over testimony and evidence sought by the special committee investigating the Jan. 6 riot at the Capitol.
Democrats seeking the records have been dismissing that Trump has a right to executive privilege, but Dershowitz said that it's part of the constitutional power of the president that he had that right. As for Biden's allowing the committee access to Trump files, Dershowitz said that "one president can't waive" executive privilege for another president.
"The real question is whether execuative privilege, far it goes, and whether it exempts the production of documents," he said. "These are issues that are going to go to the court, and they'll be resolved on a case-by-case analysis. You can't broadly say either the president has total executive power or you can't say that he has none. It will be somewhere in the middle, and we'll have to see what the facts are."
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