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It’s a Thanksgiving feast of legal analysis in the faculty lounge (don’t worry, the profs issue opinions on the best side dishes for your holiday meal), as Richard Epstein & John Yoo convene for their first post-election session. On the menu: Do any of President Trump’s legal challenges to the outcome of the election have a chance in court? Are attempts to get state legislatures to change their electoral votes constitutional? Would a president Joe Biden actually have the power to issue a national mask mandate? Will increasingly restrictive COVID rules at the state level withstand scrutiny by the courts? Was Justice Alito out of line to issue politically-charged remarks at the Federalist Society convention? And finally, the question of the hour: does President Trump have the power to pardon himself?
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Eye-opening to think it might actually be constitutional to force/coerce anyone to take the COVID vaccines, mostly coming from new untested technology (and I’m pro-vaccine). How on earth does John Yoo, who is so smart, get it so wrong that “we just need to wait a bit longer” when people already are out of work and can’t feed their kids? And get it so wrong about HCQ? I’m not saying it is the only treatment for COVID, but Richard has clearly done his research on HCQ and the use of pharmaceutical treatments in general (i.e. off-label use, when are RCTs useful) and John has not. Yikes. To be fair to John, you weren’t planning to talk about that, but I was surprised he would make such assertions when he clearly hadn’t done his homework.
Regarding the mandatory vaccine thing, which I think is highly relevant – why, then, no calls for mandatory flu vaccination? It kills tens of thousands annually. But I’m unaware of any mandates at work, or at restaurants I might go to, or my home insurance, requiring documentation of my flu shot.
Richard was right to push back on John around the HCQ thing – waiting longer would likely result in more deaths, not fewer. It’s another cost/benefit calculation that should be part of the conversation, not just having the one magic vaccination bullet. Frankly, not talking about targeting the highest risk first, considering how younger healthy people are literally in more danger of a safe falling on their heads than they are of getting sick from, hospitalized for, and dying from COVID, is the larger point, and should have been front and center of the conversation since March.
Instead, the magic bullet was masks, and/or social distancing, but as the science keeps telling us, the bulk of that is largely ineffective. In the same way that you wouldn’t ban smoking in peoples’ homes, for their own good, and mandating anti-smoking detectors in homes nationwide, if only some percentage of Americans actually smoked, why put a partially useful prophylactic on peoples’ faces for a year, if 95% of people are at almost zero risk of peril from COVID, and it delays herd immunity?