Additional thoughts on the Supreme Court's decisions in the OSHA and CMS vaccine mandate cases

Decided on narrow technical grounds to appease certain powerful institutions SCOTUS failed to debate the key Constitutional issues raised by these cases

I am grateful to the U.S. Supreme Court for granting a stay that blocks enforcement of the OSHA vaccine mandate and disappointed that they split the baby in half by allowing the vaccine mandate to continue for healthcare workers in facilities that receive funding from the Centers for Medicare and Medicaid Services (CMS). As the Babylon Bee noted, now “healthcare workers are the only people who can’t make decisions about their own health.”

What initially seemed like a heavyweight boxing match between two radically different worldviews was decided on narrow technical grounds and the larger Constitutional issues were mostly avoided.

I understand why the Supreme Court wanted to make the narrowest possible ruling — they do not want to be seen as making law and they do not want to get too far out front on any issue lest they risk the credibility of the court. The problem with this approach is that if we are not going to debate the big issues at the Supreme Court, then where exactly are these debates going to take place? They are not happening in the media (completely captured), nor Congress (completely captured), nor within medical societies (completely captured). So how, as a society, are we supposed to come to clarity about a new and novel virus and how best to respond to it if we are never allowed to have a robust public debate about it in any venue?

In this article I want to try to walk through some of the big issues left unaddressed by the Supreme Court’s narrow rulings in these cases.

No findings of fact and no Jacobson

Jeff Childers at Covid & Coffee wrote the best initial take on the U.S. Supreme Court’s decisions in the OSHA and CMS mandate cases.

Childers notes that there were no real findings of fact — the three Democratic appointees gestured toward the claims submitted by OSHA and HHS and left it at that and the six Republican appointees did not make any attempt at determining the facts at all. This is very strange. Findings of fact are a standard part of any trial. And here we have a new, novel, and likely man-made virus; several vaccines that have never worked in humans before; and unprecedented vaccine failure and yet neither side wanted to discuss the facts!? In the highest court in the country? Even though one cannot make rational decisions about these matters in the absence of facts? We’ll return to this issue below.

Childers also points out that there is no mention of Jacobson v. Massachusetts in either decision. Jacobson is the 1905 case regarding a state vaccine mandate that has been used incorrectly ever since to justify all sorts of heinous state actions including forced sterilization of poor women. See analysis from former NYU law professor and current President of Children’s Health Defense Mary Holland, Esq. (here) and (here) for further explanations of why Jacobson was wrongly decided and how it has been misinterpreted.

Childers seems to suggest that the Democratic appointees did not want to cite Jacobson because that would acknowledge that this power rests with the states (not the federal government). Republican appointees may not have wanted to mention Jacobson because, well it’s not quite clear. Perhaps they think it was wrongly decided and want to overturn it but the court is hesitant to overturn precedent too often lest they be seen as activist and illegitimate — and they are likely to overturn precedent in the pending abortion decisions (Texas and Mississippi) so perhaps they are saving their powder for that battle.

I want to add three important issues to the conversation:

A product under Emergency Use Authorization cannot be mandated

In the U.S., the FDA has granted Emergency Use Authorization for three coronavirus vaccines.

21 U.S. Code § 360bbb–3 clearly states that medical products under Emergency Use Authorization cannot be mandated and a federal district court has confirmed this.

The FDA has only given so-called “full approval” to Pfizer’s Comirnaty coronavirus vaccine which is used in Europe and is not available in the U.S.

Pfizer claims that the European and U.S. formulations of their coronavirus vaccines can be used interchangeably but the courts have rejected this assertion.

If the Supreme Court wanted to rule on narrow technical grounds, it should have rejected the mandates because they clearly violate the rules in connection with Emergency Use Authorization of medical products.

However, as I explain below, all vaccine mandates are unconstitutional, regardless of their FDA status.

The Constitutional rights of the individual

Across two majority opinions, one concurring opinion, and three dissents (44 pages in all) there is no mention of the Constitutional rights of individuals. This is very strange. The question at hand was whether the federal government, acting through unelected bureaucratic agencies can force 84 million private sector workers and 10 million healthcare workers to have a sharp metal object plunged into their body that will inject a genetically modified substance that hijacks the RNA inside individual cells for an uncertain period of time with unknown short- and long-term health impacts. And not a single member of the Supreme Court had anything to say about the Constitutional rights of individuals? In a country built on the notion of individual freedoms? Really? What’s going on!?

It appears that the Democratic appointees to the court (Kagan, Sotomayor, and Breyer) did not want to acknowledge a constitutional right to privacy and bodily sovereignty because then they would have had to reject both mandates. As Naomi Wolf points out a Constitutional right to privacy and bodily autonomy has been the bedrock principle of liberal jurisprudence for the last 50 years and so it is more than a little odd that the three liberal justices suddenly pretended that they had never heard of this idea. But worshipping the golden calf of vaccines has become the only issue in the Democratic imagination and so apparently all other principles be damned. When it comes to injecting toxic substances into the peasants, Democrats want the federal government to be all-powerful, never mind what they said before about “My body, my choice.”

Republican appointees to the court (Roberts, Alito, Thomas, Gorsuch, Kavanaugh, and Barrett) however do not want to acknowledge a Constitutional right to bodily sovereignty or privacy because they are likely to curtail such rights in their upcoming decisions in the two abortion cases (regarding Texas Senate Bill 8 and the Mississippi law that blocks abortions after 15 weeks of pregnancy). Said differently, regardless of how they might feel about individual rights in this case, when it comes to abortion, Republicans want the state to have the power to make these decisions rather than individuals.

It is not my intention here to weigh in on the abortion debate but rather to point out that no one on the court is looking out for our rights as individuals. I suppose one could argue that Thomas, Alito, and Gorsuch are at least aware of the fact that vaccines involve some risks and that individuals have rights — but their reasoning was indirect and between the lines (writing that one could not remove a vaccine at the end of the workday or that vaccination could not be undone rather than saying that individuals have sovereignty over their own bodies). In these rulings none of the nine justices are being consistent in their judicial philosophy.

This glaring omission of any discussion of individual liberties is apparent in the concurring opinion from Justice Gorsuch in the OSHA case (that was joined by Justices Thomas and Alito). He writes:

The central question we face today is: Who decides?… The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 states before us submit, that work belongs to state and local governments across the country and the people’s elected representatives in Congress.

Given this menu of options, I’m glad that Gorsuch (and 5 other justices) came down on the side of the states and Congress. But this is the wrong menu. Neither an administrative agency in Washington nor state and local governments and Congress should decide this matter. Vaccination is a matter that can only be decided by individuals weighing their potential individual risks and benefits. Mandatory one-size-fits-all medicine is, by definition, tyranny and savage barbarism because every individual body is unique. And no level of government has the right to trespass my body. This is not complicated and it is strange that no one on the court stood up for these fundamental individual rights.

Arguments from authority and so-called experts are a logical fallacy. SCOTUS wants to sidestep this thorny problem but they should not

This is a return to the issue mentioned above about the absence of any real findings of fact in this case. It is very important and I have not heard others comments on it thus far. My argument has two steps to it:

1. The problem of deferring to institutions. It appears that the Supreme Court decided this case based on the institutions involved, not the Constitutional principles. In the OSHA case the majority noted that 27 states and a majority of the U.S. Senate were on record as opposing this workplace mandate. And in the CMS case, the majority (Roberts and Kavanaugh were in the majority on both cases) noted that the American Medical Association and the American Public Health Association were on record as supporting the mandate for healthcare workers and the plaintiffs were not a well-recognized institutional body. So it seems that they just weighed up the power of the various institutions in each case and gave the victory to the more powerful institutions. That is politics — not justice — and it is the wrong way to decide the case.

2. The problem of deferring to experts. In their dissent in the OSHA case, Justices Breyer, Sotomayor, and Kagan speak to the question of “Who decides?” Writing about the Supreme Court they argue:

Its Members are elected by, and accountable to, no one. And we “lack[] the background, competence, and expertise to assess” workplace health and safety issues. South Bay United Pentecostal Church, 590 U. S., at ___ (opinion of ROBERTS, C. J.) (slip op., at 2). When we are wise, we know enough to defer on matters like this one. When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions.

It is preposterous to claim that anyone at OSHA or CMS are “experts” on these matters because this is a new and novel virus (so it is unclear who has the correct answers at this point) and these agencies, like all bureaucracies in D.C., are captured by industry.

But I want to make a larger point. It is not just Democrats who do this. Oh heavens me, I could not possibly decide such weighty scientific matters, let’s leave it to the experts is a standard flex by politicians of both political parties and judges across the country — and it is entirely wrong.

Nothing in the Constitution supports this approach. The Seventh Amendment to the Constitution articulates the right to trial by jury. The founders of this country wanted legal matters decided by everyday citizens — as a check against corruption. The Constitution did not envision a society of technocrats making decisions on behalf of society. The founders were well aware of the fact that power corrupts everyone and so they returned decision-making on matters of fact to ordinary citizens. In a democracy, no one can side-step their individual responsibility to evaluate the evidence for themselves. If the matter is over the heads of U.S. Supreme Court Justices then it must be left to individuals to decide — rather than giving totalitarian powers to bureaucrats.

But it’s more than that. From a scientific and medical perspective, institutions and “experts” tell you nothing about the data. It’s the wrong epistemology. Institutions and “experts” tell you about the politics surrounding the data, they do not necessarily tell you if the data is more likely to be correct than not.

Respondents should have to make their case publicly in ways that everyone can understand and they should have to present their data for the entire society to comb through if they wish. The notion that we are going to contract out the findings of fact to unelected bureaucrats who are almost always captured by the pharmaceutical industry is an affront to democracy and entirely unscientific. It would be extremely beneficial for society for us to have these scientific debates out in the open — in the courtroom, in the digital public square, and in our living rooms — so that as a society we can grow, learn, and sort out fact from fiction. The idea of leaving these matters to captured technocrats has been catastrophic for public health and it must stop.

Furthermore, it’s not like these justices even believe this flex themselves. The so-called Special Masters on the vaccine court include a former tax specialist, a military judge, and a sex crimes prosecutor — these people are not scientific experts — and yet they decide thousands of vaccine injury cases involving intricate matters of science and medicine. So on the one hand, the Supreme Court (and lots of elected officials) claim that they could not possibly decide weighty scientific matters and then they punt to people who know even less than them (corrupt bureaucrats or Special Masters) — entirely bypassing the system set up by our founders — ordinary citizens, on juries, using common sense and reason.

It is time for the U.S. to return to the founding principles of individual liberty and trust in the common sense and reason of individual citizens. If you don’t believe in that then you don’t believe in democracy.

Conclusion

The OSHA case now returns to the U.S. Court of Appeals for the Sixth Circuit. Some legal analysts think OSHA may withdraw the rule rather than continue with a case that it is expected to lose.

The CMS case returns to the Fifth and Eighth Circuit courts where legal analysts believe that the challenges to the CMS mandate will be dismissed.

But the enormous Constitutional issues remain. I think there is ample opportunity for the Fifth and/or Eighth Circuit courts to re-examine the government’s shoddy reasoning in the CMS case. I also think citizens should come together to fund new litigation to defend the Constitutional right to bodily autonomy for all Americans, including the healthcare workers who are under assault by the CMS rule right now.

Both the OSHA and the CMS mandates are clearly unconstitutional. The First (freedom of speech), Fourth (freedom to be secure in my person…), Seventh (right to trial by jury), and Fourteenth (equal protection under the law) Amendments to the Constitution can all be used to strike down this totalitarian government overreach. Any honest examination of the scientific evidence will reveal that coronavirus shots do not work as claimed and the risks outweigh the benefits. If the courts are wise, they will leave these decisions up to individuals acting within their conscience as sovereign citizens.

Okay those are my thoughts for now. What were your reactions to the recent Supreme Court decisions and what facets of this debate do you think that plaintiffs’ lawyers should focus on going forward?

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