Illegal Mandates and NBA Stars

 

One thing that I can’t get out of my mind is that vaccine and mask mandates across the country are profoundly illegal. The Supreme Court decision used to justify them is the Jacobsen v. Massachusetts decision regarding a Smallpox vaccine mandate by that State during a Smallpox outbreak at the end of the 19th Century. One of the features of the decision was that the action mandated by the State had to be well-founded, and achieve the effect for which the mandate was issued. That certainly applied to the smallpox vaccine in Massachusetts at the end of the 19th century. At that time, the vaccine had been used for over a hundred years and was, indeed, established science. A person once vaccinated had almost no chance of dying from the disease, acquiring it, or transmitting it. That has proven not to be the case at all with our current vaccines, and certainly not with masks.

Of course, the decision applied to States, and not the Federal Government, which does not have the public health power to issue the vaccine mandate that Biden imposed. Biden averred that his mandate was likely not constitutional, and it is likely to be challenged in court. But, it can’t be until the rules are issued by OSHA, which is taking its time doing so. Everyone is aware that as soon as those regulations are promulgated, there will be attempts to obtain injunctions, and the mandate will be challenged, and will likely move quickly to the Supreme Court.

Jacobsen was wrongly decided, as there was no exception for those who had previously been vaccinated, or had previously had smallpox. Jacobsen had previously been vaccinated, and had a prolonged and severe adverse reaction, according to him, as had his children. The failure to consider such cases of prior vaccination, particularly with severe adverse reactions, is a gross distortion of science, although the decision itself requires that the mandate be scientifically reasonable and definitively justified. So the opinion in that case contradicts itself. Similarly today, there is no scientific basis for mandating the vaccines for someone who has already had COVID. This is a glaring error in Biden’s mandate.

With smallpox, periodic outbreaks were the rule, until vaccination was discovered. An epidemic would hit, people would die (the mortality from the virus was around 15% generally, though much greater in some populations, such as Native Americans). Many would contract the disease and survive, and have lifelong immunity. Outbreaks would occur about every generation, as a population of young people that had no immunity from the prior epidemic would rise up among the population that had immunity from prior outbreaks. One can look at the statistics from New England in the 1700s and the 1800s. In the 1700s, there were indeed outbreaks every 20 years or so. Beginning about 1800 when vaccination was practiced extensively, that pattern changed. There were no more 20-year spikes in cases, at all. By the end of the 19th Century, Sweden had completely eliminated smallpox. In the 20th Century, it was eliminated from the world.

No such thing will be the case with COVID. It will be with us permanently now, most likely with seasonal outbreaks, or outbreaks of variants. The vaccines will not be fully effective, and may quickly lose efficacy. Already we are at that point. New vaccines, or other medications, will be needed. Do we mandate the flu vaccine? No, because it does not meet the requirements of a fully effective preventive, either for infection, severe disease, or prevention of transmission. So it is with the COVID vaccines, as one might have expected. With the availability of monoclonal antibody treatments (and, dare I say, such things as Ivermectin–or does that remain heresy?) and oral medications such as Merck’s new pill (Merck is the manufacturer of Ivermectin as well–I for one would like to see a head-to-head trial of Ivermectin vs. Merck’s new antiviral med, though that will not happen, given the priors of our blinkered experts–or a combination study, since the two medications have different mechanisms of action and their effects should be additive or complementary), treatment of the disease may transform it into a nuisance but not a lethal disease for the great majority of the population.

To mandate a vaccine for an NBA player that has had COVID is the height of idiocy. There is no science to support that at all. For businesses now to require vaccination for employees who have had the disease is far beyond reason or science but that is what they are doing. Why?  Such businesses could wait until the OSHA rules are promulgated, but they are not doing that. OSHA seems to be dragging its feet, as everyone knows the regulations will be immediately challenged.  The Biden administration seems to expect that businesses will comply with the mandate without the regulations, as they anticipate their promulgation, possibly making the promulgation of such rules unnecessary.  That, however, seems to be an egregious miscalculation, as the country is being torn apart, with pilots, air traffic controllers, and others react to the mandate. Already States are banning vaccine mandates, polarizing the situation, and muddying the legal waters almost beyond repair. The whole situation has become completely untenable. That mandate is literally insane. Yet our whole society is apparently succumbing to some sort of magical thinking about it. This is, indeed, hysteria of the same type as manifest in the Day School delusions of child torture and abuse, for which there was no evidence at all,  of the 1980s and 1990s, that swept the country. Only Dorothy Rabinowitz seemed to retain any sanity about that situation.

Could the situation be handled any worse?  I don’t think so. The Afghan withdrawal is starting to look like a masterpiece of planning and execution in comparison.  If nothing else, Biden has been wildly successful in distracting us from that recent debacle.

Published in Healthcare
This post was promoted to the Main Feed by a Ricochet Editor at the recommendation of Ricochet members. Like this post? Want to comment? Join Ricochet’s community of conservatives and be part of the conversation. Get your first month free.

There are 28 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. Nohaaj Coolidge
    Nohaaj
    @Nohaaj

    Nanocelt TheContrarian: treatment of the disease may transform it into a nuisance but not a lethal disease for the great majority of the population, much like the flu. 

    The Whoo Hoo Flu has only ever been a nuisance for the majority of the population, with the known exceptions of a very small subset of significantly seasoned folk who are often times significantly overweight or have other immuno-compromised comorbidities. 

    But I agree with you, that Xiden’s requested mandate plan and procedure has been a debacle, and looks to create ever more division and issue. That some companies are now firing their previously dedicated and celebrated Heroes, because they opt to not get the poke, is insanity. 

    • #1
  2. Gossamer Cat Coolidge
    Gossamer Cat
    @GossamerCat

    Nanocelt TheContrarian: Do we mandate the flu vaccine? No, because it does not meet the requirements of a fully effective preventive, either for infection, severe disease, or prevention of transmission.

    Beyond the very profound civil liberties issue, this fact is what makes the government’s and employer’s case for mandates so weak.  The vaccine doesn’t stop the disease from spreading.  I also fail to see how you can declare it critical that everyone have it when people were coming to work for over a year without causing major outbreaks in places like airlines or hospitals, as far as I know.  So although I am not a lawyer, I cannot see how this mandate stands up on multiple grounds.  

    • #2
  3. CACrabtree Coolidge
    CACrabtree
    @CACrabtree

    Nohaaj (View Comment):

    Nanocelt TheContrarian: treatment of the disease may transform it into a nuisance but not a lethal disease for the great majority of the population, much like the flu.

    The Whoo Hoo Flu has only ever been a nuisance for the majority of the population, with the known exceptions of a very small subset of significantly seasoned folk who are often times significantly overweight or have other immuno-compromised comorbidities.

    But I agree with you, that Xiden’s requested mandate plan and procedure has been a debacle, and looks to create ever more division and issue. That some companies are now firing their previously dedicated and celebrated Heroes, because they opt to not get the poke, is insanity.

    It’s about to get even more convoluted.  The Archbishop for the Military has said that Catholic troops can refuse the vaccine.

    https://www.defenseone.com/policy/2021/10/catholic-troops-can-refuse-covid-vaccine-archbishop-declares/186056/

    • #3
  4. BDB Coolidge
    BDB
    @BDB

    A friend of mine caught the Holocough.  He was quite sick, but he’s fine now, minus some energy and with a nagging cough.  And that is the *only* person I know who has caught the damned thing.

    • #4
  5. DonG (CAGW is a hoax) Coolidge
    DonG (CAGW is a hoax)
    @DonG

    An important point in Jacobsen was that the ruling did not require him to get vaccinated, but allowed for a small fine of $5.00;  Since smallpox is about 100X as deadly as the Frankenvirus, a fair fine would be 5 cents.  If you factor in the years of experience for the innoculations, that is also 100X, so the allowed fine would be 0.05 cents.    For some reason, people, including judges, think that because Jacobsen lost that any government can force any vaccination on anybody at anytime.  Nope.

    • #5
  6. DonG (CAGW is a hoax) Coolidge
    DonG (CAGW is a hoax)
    @DonG

    Nanocelt TheContrarian: and oral medications such as Merck’s new pill (Merck is the manufacturer of Ivermectin as well–I for one would like to see a head to head trial of Ivermectin vs Mercks new antiviral med, though that will not happen, given the priors of our blinkered experts),

    Unfortunately, there is nobody that can be trusted in the medical industry.  Not government, not Pharam, not hospitals, not researchers, and not doctors.   They have all shown themselves to be corrupt.

    • #6
  7. OmegaPaladin Moderator
    OmegaPaladin
    @OmegaPaladin

    DonG (CAGW is a hoax) (View Comment):

    An important point in Jacobsen was that the ruling did not require him to get vaccinated, but allowed for a small fine of $5.00; Since smallpox is about 100X as deadly as the Frankenvirus, a fair fine would be 5 cents. If you factor in the years of experience for the innoculations, that is also 100X, so the allowed fine would be 0.05 cents. For some reason, people, including judges, think that because Jacobsen lost that any government can force any vaccination on anybody at anytime. Nope.

    That is actually tied to later reinterpretations of Jacobsen.  Oliver Wendell Holmes turned it into a vaccine mandate in the infamous Buck vs. Bell.  Justice Gorsuch stated the modern equivalent to the fine after inflation would be $140, and the fact that the fine was only $5 was important to the case.

    • #7
  8. Stad Coolidge
    Stad
    @Stad

    Nanocelt TheContrarian: No such thing will be the case with COVID. It will be with us permanently now, most likely with seasonal outbreaks, or outbreaks of variants.The vaccines will not be fully effective, and may quickly lose efficacy.

    And every time there’s an outbreak, politicians will flip a switch and instantly impose draconian restrictions and mandates with little or no warning.  Tough to run a business, much less live life under those circumstances . . .

    • #8
  9. Nanocelt TheContrarian Member
    Nanocelt TheContrarian
    @NanoceltTheContrarian

    DonG (CAGW is a hoax) (View Comment):

    Nanocelt TheContrarian: and oral medications such as Merck’s new pill (Merck is the manufacturer of Ivermectin as well–I for one would like to see a head to head trial of Ivermectin vs Mercks new antiviral med, though that will not happen, given the priors of our blinkered experts),

    Unfortunately, there is nobody that can be trusted in the medical industry. Not government, not Pharam, not hospitals, not researchers, and not doctors. They have all shown themselves to be corrupt.

    Unfortunately true, with some exceptions, like the researcher who called out Fauci, the authors of the Great Barrington Declaration, and Dr McCullough down in Texas. Or the physicians who pioneered and promulgated the outpatient management of COVID.

    • #9
  10. Nanocelt TheContrarian Member
    Nanocelt TheContrarian
    @NanoceltTheContrarian

    OmegaPaladin (View Comment):

    DonG (CAGW is a hoax) (View Comment):

    An important point in Jacobsen was that the ruling did not require him to get vaccinated, but allowed for a small fine of $5.00; Since smallpox is about 100X as deadly as the Frankenvirus, a fair fine would be 5 cents. If you factor in the years of experience for the innoculations, that is also 100X, so the allowed fine would be 0.05 cents. For some reason, people, including judges, think that because Jacobsen lost that any government can force any vaccination on anybody at anytime. Nope.

    That is actually tied to later reinterpretations of Jacobsen. Oliver Wendell Holmes turned it into a vaccine mandate in the infamous Buck vs. Bell. Justice Gorsuch stated the modern equivalent to the fine after inflation would be $140, and the fact that the fine was only $5 was important to the case.

    But now you lose your ability to support yourself entirely.

    Holmes extended that vaccine mandate to forced sterilization of the “unfit” and that mandate was upheld in Roe v Wade. It remains settled law as they say at a federal level. So, theoretically, the penalty for refusal to be vaccinated could include forced sterilization…?

    • #10
  11. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    I re-read the Jacobson decision (here), and I don’t think that your legal arguments are correct.  First, you argued:

    Nanocelt TheContrarian: One of the features of the decision was that the action mandated by the State had to be well founded, and achieve the effect for which the mandate was issued .That certainly applied to the smallpox vaccine in Massachusetts at the end of the 19th Century. At that time, the vaccine had been used for over a hundred years and was, indeed, established science. A person once vaccinated had almost no chance of dying from the disease, acquiring it, or transmitting it. That has proven not to be the case at all with our current vaccines, and certainly not with masks. 

    It is true that Jacobson was a pretty early decision, and SCOTUS has developed the law in the interim.  Generally, in both liberty and equal protection cases, a situation is categorized into one of three levels of review: (1) rational basis review, which is deferential, for most laws; (2) strict scrutiny, which is very restrictive, in some narrow areas involving “fundamental rights” or race discrimination; and (3) on occasion, an “intermediate” scrutiny in areas like sex discrimination (if I’m remembering my Con Law II correctly).

    Your characterization of the Jacobson decision seems to suggest intermediate scrutiny, if not strict scrutiny, though you don’t use either term.  This is implicit in your assertion that “the action mandated by the State had to be well founded, and achieve the effect for which the mandate was issued.”  I do not think that this is a correct interpretation of the decision.

    [Cont’d]

    • #11
  12. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Justice Harlan’s majority opinion stated:

    We must assume that, when the statute in question was passed, the legislature of Massachusetts was not unaware of these opposing theories, and was compelled, of necessity, to choose between them. It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury. It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain. It could not properly abdicate its function to guard the public health and safety. The state legislature proceeded upon the theory which recognized vaccination as at least an effective, if not the best, known way in which to meet and suppress the evils of a smallpox epidemic that imperiled an entire population. Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the legislature? If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that,

    “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”

    In modern terminology, I think that this is an articulation of the rational basis standard of review.

    Do you have an alternative argument to justify departure from the rational basis test usually used in such circumstances?

    • #12
  13. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    I think that you would have had another good argument, before around 1937, on federalism grounds.  You argued:

    Nanocelt TheContrarian: Of course the decision applied to States, and not the Federal Government, which does not have the public health power to issue the vaccine mandate that Biden imposed.

    For better or worse, this limitation was largely eliminated by the expansive interpretation of the Commerce Clause in West Coast Hotel v. Parrish, the famous (or infamous) “switch in time that saved nine” decision upholding FDR’s agenda.  The Court put some outer limit on this expansive federal power in US v. Lopez in 1995, which invalidated the federal gun-free school zone law, but Lopez still allows regulation of economic activity, including employment.  Employment health and safety regulation appears to be the basis for the federal mandate at issue.

    I think that you can make a strong argument that Parrish was wrongly decided, but this would invalidate an enormous number of federal laws (including the anti-discrimination laws).  It is very unlikely that any court would accept such an argument at this time.  I don’t recall for certain, but I seem to remember that even Richard Epstein would let this precedent stand, though (I think) he believes it to have been wrongly decided.

    So I think that a legal argument against the recent federal mandate would be DOA in any federal court, if made on the basis of the two arguments that you raised: (1) the liberty argument under the 5th (federal) or 14th (state) amendment due process clause, or (2) the argument that the mandate is beyond the enumerated powers of the federal government.

    There may be an argument that the federal vaccine mandate was beyond the power of the President (on separation-of-powers grounds), but this would require analysis of any potentially applicable statutes delegating such authority to the executive (such as the OSHA statutes that, as I understand it, are the basis for the vaccine mandate in question).  I have not done this analysis.

    • #13
  14. Nanocelt TheContrarian Member
    Nanocelt TheContrarian
    @NanoceltTheContrarian

    Jerry Giordano (Arizona Patrio… (View Comment):

    Justice Harlan’s majority opinion stated:

    We must assume that, when the statute in question was passed, the legislature of Massachusetts was not unaware of these opposing theories, and was compelled, of necessity, to choose between them. It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury. It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain. It could not properly abdicate its function to guard the public health and safety. The state legislature proceeded upon the theory which recognized vaccination as at least an effective, if not the best, known way in which to meet and suppress the evils of a smallpox epidemic that imperiled an entire population. Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the legislature? If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that,

    “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”

    In modern terminology, I think that this is an articulation of the rational basis standard of review.

    Do you have an alternative argument to justify departure from the rational basis test usually used in such circumstances?

    That last paragraph makes my case. The vaccine and mask mandates do not accomplish the objective claimed of eliminating COVID, and violate individual Constitutional rights of the citizenry.

    • #14
  15. Nanocelt TheContrarian Member
    Nanocelt TheContrarian
    @NanoceltTheContrarian

    Jerry Giordano (Arizona Patrio… (View Comment):

    I think that you would have had another good argument, before around 1937, on federalism grounds. You argued:

    Nanocelt TheContrarian: Of course the decision applied to States, and not the Federal Government, which does not have the public health power to issue the vaccine mandate that Biden imposed.

    For better or worse, this limitation was largely eliminated by the expansive interpretation of the Commerce Clause in West Coast Hotel v. Parrish, the famous (or infamous) “switch in time that saved nine” decision upholding FDR’s agenda. The Court put some outer limit on this expansive federal power in US v. Lopez in 1995, which invalidated the federal gun-free school zone law, but Lopez still allows regulation of economic activity, including employment. Employment health and safety regulation appears to be the basis for the federal mandate at issue.

    I think that you can make a strong argument that Parrish was wrongly decided, but this would invalidate an enormous number of federal laws (including the anti-discrimination laws). It is very unlikely that any court would accept such an argument at this time. I don’t recall for certain, but I seem to remember that even Richard Epstein would let this precedent stand, though (I think) he believes it to have been wrongly decided.

    So I think that a legal argument against the recent federal mandate would be DOA in any federal court, if made on the basis of the two arguments that you raised: (1) the liberty argument under the 5th (federal) or 14th (state) amendment due process clause, or (2) the argument that the mandate is beyond the enumerated powers of the federal government.

    There may be an argument that the federal vaccine mandate was beyond the power of the President (on separation-of-powers grounds), but this would require analysis of any potentially applicable statutes delegating such authority to the executive (such as the OSHA statutes that, as I understand it, are the basis for the vaccine mandate in question). I have not done this analysis.

    You keep making my case, thank you, that the judiciary is corrupt and far afield from the Constitution. The observation that the case would be DOA in federal court is, in my view, a dispositive affirmation that my case is correct. Using the OSHA rule to impose the vaccine mandate is like using the Logan act to prosecute Flynn. Even Biden admits that it’s bogus.

    • #15
  16. BDB Coolidge
    BDB
    @BDB

    Precedent which  is abhorrent to the Constitution should be set aside.  Lawyers and judges do not intercede between my Constitution and me — I reject their priesthood.  I am a Protestant against the church of law.  

    • #16
  17. Gary Robbins Reagan
    Gary Robbins
    @GaryRobbins

    BDB (View Comment):

    Precedent which is abhorrent to the Constitution should be set aside. Lawyers and judges do not intercede between my Constitution and me — I reject their priesthood. I am a Protestant against the church of law.

    Well, good luck with that.

    • #17
  18. Clifford A. Brown Contributor
    Clifford A. Brown
    @CliffordBrown

    BDB (View Comment):

    Precedent which is abhorrent to the Constitution should be set aside. Lawyers and judges do not intercede between my Constitution and me — I reject their priesthood. I am a Protestant against the church of law.

    AND. Pointing to inflection points in case law and then saying a case is DOA, assumes the current courts lack the will to change direction after almost a century, to take into account what has happened with the realization of Eisenhower’s second great threat to our constitutional republic, the government-science complex. Select the trial court judge carefully, then go in with an argument that facts no longer fit neatly in the existing judge-made tests and rules. Propose a modification or new test that better matches facts and black letter law, including the text of the Constitution. Yes, this is a very steep uphill fight, but the left has been willing to fight for a century.

    • #18
  19. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Nanocelt TheContrarian (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    I think that you would have had another good argument, before around 1937, on federalism grounds. You argued:

    Nanocelt TheContrarian: Of course the decision applied to States, and not the Federal Government, which does not have the public health power to issue the vaccine mandate that Biden imposed.

    For better or worse, this limitation was largely eliminated by the expansive interpretation of the Commerce Clause in West Coast Hotel v. Parrish, the famous (or infamous) “switch in time that saved nine” decision upholding FDR’s agenda. The Court put some outer limit on this expansive federal power in US v. Lopez in 1995, which invalidated the federal gun-free school zone law, but Lopez still allows regulation of economic activity, including employment. Employment health and safety regulation appears to be the basis for the federal mandate at issue.

    I think that you can make a strong argument that Parrish was wrongly decided, but this would invalidate an enormous number of federal laws (including the anti-discrimination laws). It is very unlikely that any court would accept such an argument at this time. I don’t recall for certain, but I seem to remember that even Richard Epstein would let this precedent stand, though (I think) he believes it to have been wrongly decided.

    So I think that a legal argument against the recent federal mandate would be DOA in any federal court, if made on the basis of the two arguments that you raised: (1) the liberty argument under the 5th (federal) or 14th (state) amendment due process clause, or (2) the argument that the mandate is beyond the enumerated powers of the federal government.

    There may be an argument that the federal vaccine mandate was beyond the power of the President (on separation-of-powers grounds), but this would require analysis of any potentially applicable statutes delegating such authority to the executive (such as the OSHA statutes that, as I understand it, are the basis for the vaccine mandate in question). I have not done this analysis.

    You keep making my case, thank you, that the judiciary is corrupt and far afield from the Constitution. The observation that the case would be DOA in federal court is, in my view, a dispositive affirmation that my case is correct. Using the OSHA rule to impose the vaccine mandate is like using the Logan act to prosecute Flynn. Even Biden admits that it’s bogus.

    Where and when did Biden admit that it is bogus?  I’d like to see what he actually said.

    • #19
  20. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Nanocelt TheContrarian (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    Justice Harlan’s majority opinion stated:

    We must assume that, when the statute in question was passed, the legislature of Massachusetts was not unaware of these opposing theories, and was compelled, of necessity, to choose between them. It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury. It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain. It could not properly abdicate its function to guard the public health and safety. The state legislature proceeded upon the theory which recognized vaccination as at least an effective, if not the best, known way in which to meet and suppress the evils of a smallpox epidemic that imperiled an entire population. Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the legislature? If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that,

    “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”

    In modern terminology, I think that this is an articulation of the rational basis standard of review.

    Do you have an alternative argument to justify departure from the rational basis test usually used in such circumstances?

    That last paragraph makes my case. The vaccine and mask mandates do not accomplish the objective claimed of eliminating COVID, and violate individual Constitutional rights of the citizenry.

    I don’t think so, not under rational basis review.  Probably not even under more strict review, though you can believe whatever you want about the science.  The vaccines work, and I don’t think that the fight is over the stupid mask mandates.

    The Jacobsen court didn’t even care that the plaintiff hadn’t been allowed to offer his evidence.  They were basically saying: yeah, yeah, you can get your medical experts to say one thing, and the other side will get theirs to say the other thing, and we’ll defer to the legislature (or, in the present case, to the executive).

    That’s how rational basis review works.  The law gets hit with Justice Scalia’s famous stamp, “stupid but Constitutional.”

    • #20
  21. Nanocelt TheContrarian Member
    Nanocelt TheContrarian
    @NanoceltTheContrarian

    Jerry Giordano (Arizona Patrio… (View Comment):

    Nanocelt TheContrarian (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    I think that you would have had another good argument, before around 1937, on federalism grounds. You argued:

    Nanocelt TheContrarian: Of course the decision applied to States, and not the Federal Government, which does not have the public health power to issue the vaccine mandate that Biden imposed.

    For better or worse, this limitation was largely eliminated by the expansive interpretation of the Commerce Clause in West Coast Hotel v. Parrish, the famous (or infamous) “switch in time that saved nine” decision upholding FDR’s agenda. The Court put some outer limit on this expansive federal power in US v. Lopez in 1995, which invalidated the federal gun-free school zone law, but Lopez still allows regulation of economic activity, including employment. Employment health and safety regulation appears to be the basis for the federal mandate at issue.

    I think that you can make a strong argument that Parrish was wrongly decided, but this would invalidate an enormous number of federal laws (including the anti-discrimination laws). It is very unlikely that any court would accept such an argument at this time. I don’t recall for certain, but I seem to remember that even Richard Epstein would let this precedent stand, though (I think) he believes it to have been wrongly decided.

    So I think that a legal argument against the recent federal mandate would be DOA in any federal court, if made on the basis of the two arguments that you raised: (1) the liberty argument under the 5th (federal) or 14th (state) amendment due process clause, or (2) the argument that the mandate is beyond the enumerated powers of the federal government.

    There may be an argument that the federal vaccine mandate was beyond the power of the President (on separation-of-powers grounds), but this would require analysis of any potentially applicable statutes delegating such authority to the executive (such as the OSHA statutes that, as I understand it, are the basis for the vaccine mandate in question). I have not done this analysis.

    You keep making my case, thank you, that the judiciary is corrupt and far afield from the Constitution. The observation that the case would be DOA in federal court is, in my view, a dispositive affirmation that my case is correct. Using the OSHA rule to impose the vaccine mandate is like using the Logan act to prosecute Flynn. Even Biden admits that it’s bogus.

    Where and when did Biden admit that it is bogus? I’d like to see what he actually said.

    He initially said that he didn’t have the authority to issue national mandates on COVID. 

    • #21
  22. Nanocelt TheContrarian Member
    Nanocelt TheContrarian
    @NanoceltTheContrarian

    @arizonapatriot

    Biden said initially that he wasn’t going to issue national mandates on masks or vaccines. For the same reason he said he wasn’t going to extend the eviction moratorium. He didn’t have the authority to do either. Then he did both. Or am I just hallucinating all of that? Seems these points have saturated the news. Or did I get it completely wrong?

    Is it not bogus to use an OSHA rule meant for entirely different purposes, on an emergency basis when we no longer have an emergency basis on which to base an emergency order, to issue an employment based emergency executive order affecting 80 million private jobs? Never before in the history of the Republic has such a thing been done. You don’t think that Biden’s EO is actually Constitutional do you?  Or do you?  I get the feeling that you do. That it might be. That it has to be argued before a court to see if it is Constitutional or not. Truly astonishing. Apparently you conceive of individual liberty as described in that famous book where someone said  “Everything that is not permitted is forbidden.” Unless some court decides otherwise. Rational basis as practiced legally is, of course, an oxymoron. Like most of what happens in our courts. 

    Scalia should have said, “Stupid and Unconstitutional” and then applied that to his cherished Chevron deference. He did spend his career before joining the Supreme Court as an Administrative law judge, did he not? To his credit, he began to realize the monster he created with that strange, bizarre, and Constitutionally suspect if not outright fraudulent concept. Unfortunately, he just didn’t have time to correct this egregious fracture of the Constitution.  I would like to ask him about that some day, but, unfortunately, he has most certainly gone to a far better place than I will ever see. Still, he was one of the great enablers of what is now called the Deep State, it would seem. 

    • #22
  23. DonG (CAGW is a hoax) Coolidge
    DonG (CAGW is a hoax)
    @DonG

    Does anybody believe that some future GOP would change the law to limit what OSHA can do?  Anybody believe the current GOP would fight to limit OSHA while caving on the debt ceiling??

    • #23
  24. BDB Coolidge
    BDB
    @BDB

    Gary Robbins (View Comment):

    BDB (View Comment):

    Precedent which is abhorrent to the Constitution should be set aside. Lawyers and judges do not intercede between my Constitution and me — I reject their priesthood. I am a Protestant against the church of law.

    Well, good luck with that.

    Thank you.  There are three ways to view the Supreme Court.  Unfortunately the third view prevails these days — the law is whatever five black robes say it is.  That doesn’t make it right.  An emphasis on a doctrine of remoteness (from the Constitution) could help to punch a hole in Stare Decisis big enough to drive a truck through.  The Long March of precedent should not be viewed as somehow overriding the plain language meaning of the Constitution.
    I am not a lawyer, and I know that you are.  So I’m sure this is a lay-up for you.
    There is surely room for the right to engage in lawsuits to further its doctrines, rather than perpetually responding to the numberless depredations of the left.

    • #24
  25. BDB Coolidge
    BDB
    @BDB

    Nanocelt TheContrarian (View Comment):
    Apparently you conceive of individual liberty as described in that famous book where someone said  “Everything that is not permitted is forbidden.” Unless some court decides otherwise.

    The ninth and tenth amendments do away with most of this.  But the Constitution has few supporters or defenders against enemies domestic.  

    • #25
  26. I Walton Member
    I Walton
    @IWalton

    it’s not about the disease or the vaccination.  It’s about the next two elections.  To assure broad Democrat election victories they need as much centralization as possible.   If allowed to steal the elections they think they will have won.  While Republican run states could separate, they think the military can be used to impose compliance.  That is one reason the military is being radically recomposed from top down.   This is also why Republicans are being portrayed constantly as radically dangerous.  It’s amazing that even normally sensible democrats are going along with their party.  I keep seeing Republican acting as if there were going to be a fair election which they’ll easily win, and that all of this alternative speculation is off the wall.   Is it?

    • #26
  27. BDB Coolidge
    BDB
    @BDB

    Clifford A. Brown (View Comment):

    BDB (View Comment):

    Precedent which is abhorrent to the Constitution should be set aside. Lawyers and judges do not intercede between my Constitution and me — I reject their priesthood. I am a Protestant against the church of law.

    AND. Pointing to inflection points in case law and then saying a case is DOA, assumes the current courts lack the will to change direction after almost a century, to take into account what has happened with the realization of Eisenhower’s second great threat to our constitutional republic, the government-science complex. Select the trial court judge carefully, then go in with an argument that facts no longer fit neatly in the existing judge-made tests and rules. Propose a modification or new test that better matches facts and black letter law, including the text of the Constitution. Yes, this is a very steep uphill fight, but the left has been willing to fight for a century.

    Well said!

    • #27
  28. Unsk Member
    Unsk
    @Unsk

    BDB (View Comment):

    Precedent which is abhorrent to the Constitution should be set aside. Lawyers and judges do not intercede between my Constitution and me — I reject their priesthood. I am a Protestant against the church of law.

    Well, good luck with that.

    The members of the Priestly class of Lawyers are cruising for an enormous bruising. If you think the great populace is going to  take another unconstitutional diktat that forces people to accept a deadly and dangerous gene therapy from our wannabe Totalitarian rulers,    you may be in for a big and deadly surprise. 

    Good Luck with your Totalitarian Unconstitutional Crap. 

    • #28