(Editor's Note: This blog has been updated)
On September 8, 2021, Politico published an article titled “The Surprisingly Strong Supreme Court Precedent Supporting Vaccine Mandates.” In it, the author works feverishly to project the argument that the 1905 United States Supreme Court decision against Lutheran minister Henning Jacobson and in favor of the state of Massachusetts’ compulsory vaccination mandate (concerning smallpox) provides the legal footing necessary to uphold…wait for it…a U.S. governmental COVID-19 injection mandate. Then, almost on cue, on September 9, 2021, the J. Robinette B. Administration announced “Sweeping New Vaccine Mandates for 100 million Americans.” Gasp! How was Politico so prescient? They just so happened to release their article on vaccine mandates the day before Mr. Biden announced an injection mandate. They weren’t trying to lay the social groundwork for the White House’s executive action, were they?
We do not yet have the formal publication of the executive action. However, according to reports (including the AP News story cited above), the federal action mandates “that all employers with more than 100 workers require them to be vaccinated or test for the virus weekly.” This will affect about 80 million Americans. And,
“The roughly 17 million workers at health facilities that receive federal Medicare or Medicaid also will have to be fully vaccinated.”
The mandate also requires “vaccination for executive branch employees and contractors who do business with the federal government—with no option to test out.” This includes several million more workers. Finally,
“The requirement for large companies to mandate vaccinations or weekly testing for employees will be enacted through a forthcoming rule from the Occupational Safety and Health Administration (OSHA) that carries penalties of $14,000 per violation.”
In the midst of all of this, AP News reported,
“Biden’s order for executive branch workers and contractors includes exceptions for workers seeking religious or medical exemptions from vaccination, according to press secretary Jen Psaki” (in the link cited above).
Yet, in addition to this newly announced intrusion upon the private employment sector, separately,
“[T]he Department of Health and Human Services will require vaccinations in Head Start Programs, as well as schools run by the Department of Defense and Bureau of Indian Education, affecting about 300,000 employees.”
Having said all of that, every ounce of this proposed executive action is illegal and unconstitutional. The United States of America is a constitutional republic with representative democratic features. Our Constitution separates power within the federal government. In our federal executive branch, we have a president. Not a king! In our republican form of government, as expressed in Article IV, Section 4 of our U.S. Constitution, we enjoy the benefit of separate sovereignty. The bulk of emergency power in our nation rests in state government. Not in the U.S. executive branch. A president’s role and powers are different than those charged with state governance. Article 2 of our U.S. Constitution sets the parameter, the limits, for executive power. Nowhere in it will you find any authority whatsoever for the J. Robinette B. Administration to compel private companies to force their staffs to inject their bodies with anything or to test them. Period.
Interestingly, when you read the Jacobson v. Massachusetts, 197 U.S. 11 (1905) opinion Politico cited, you find that the opinion doesn’t support the unconstitutional authoritarian overreach proposed by the White House. In Jacobson, the Court ruled that it is within the police power of a State to enact a compulsory vaccination law. And it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health. “The State” in Jacobson was the state of Massachusetts. “The legislature” was the Massachusetts state legislature. The federal executive branch has no legal authority to do this. The opinion Politico tried to pass off as legal authority for a national injection mandate is clearly distinguishable from and cuts directly against what the Biden administration is trying to force on the American people.
More specifically, they seek to shove it into our bodies without our consent. OSHA has no more authority to do this than did the U.S. Center for Disease Control and Prevention (CDC) to issue an eviction moratorium. This is why the U.S. Supreme Court struck that down too. Which, Mr. Biden knew but sought to expand anyway, even after the Court rebuked him. That should give you an indication of his respect, or lack thereof, for the rule of law.
We should also mention Mr. Biden’s injection mandate does not comport with the science presented in the Jacobson case. The Jacobson Court observed that the vaccination against smallpox at issue in 1905 was promulgated to “prevent the spread of smallpox.” (Jacobson p. 31). Many well-intentioned people may hope that currently available injections help “slow the spread” of SARS-CoV-2. But, no one today, at least not anymore, attempts to credibly assert that the various injections prevent infection with or the transmission of SARS-CoV-2. I recently had Dr. Christina Parks on my radio program to discuss this very thing. You can find that program here.
She earned her Ph.D. in cellular and molecular biology from the University of Michigan. She did her graduate research in the field of cytokine signaling. Cytokines are the chemicals the immune system uses to communicate. During the interview, Dr. Parks referred to a study that indicated that all of the proposed injections were designed for the initial strand of SARS-CoV-2, which for all practical purposes, is no longer present. They were not designed for the Delta Variant (or any other variants). Recent studies, indicate that people who’ve not contracted COVID-19, yet receive the injection, may be susceptible to greater health risk from the Delta Variant due to what is described as "antibody dependent enhancement." This has been a concern among scientists from the very beginning because it was observed with the original SARS virus as indicated by this study. Dr. Parks testified about this before the Michigan state legislature.
The reality that the injections do not prevent infection or transmission of SARS-CoV-2 seems to be reflected in recent activity by the CDC. On August 23, 2021, Pfizer received FDA approval for its Biontech injection. On September 1, 2021, the CDC changed its definition for vaccination. It now defines vaccination as “The act of introducing a vaccine into the body to produce protection from a specific disease.” Congressman Thomas Massie of Kentucky pointed out that the CDC previously defined vaccination as “Injection of a killed or weakened infectious organism in order to prevent the disease” up until 2015. From 2015 to September 1, 2021, the CDC defined vaccination as “The act of introducing a vaccine into the body to produce immunity to a specific disease. The CDC’s vaccination definition evolved from “prevention” to “immunity,” and now to mere “protection.” The CDC seems to have confirmed what Dr. Parks told me (and a few of my “Corner” friends) and tacitly admitted that the injections do not prevent infection or transmission.
The national injection mandate seems to also be anti-science. Studies, like this one from Israel, specifically compared the potency and durability of natural immunity to purported injection immunity. The authors wrote that their study demonstrated “natural immunity confers longer lasting and stronger protection against infection, symptomatic disease and hospitalization caused by the Delta variant” than does the two-dose Pfizer injection (the only one with FDA approval to date). In light of this fact, Dr. Anthony Fauci (“The boy from Brooklyn”) was specifically asked during a recent CNN appearance why Americans with natural immunity would need injections. His response: I don’t have “a really firm answer” on that. Seriously? This from the Director of the National Institute of Allergy and Infectious Diseases? If this is so, is science driving the J. Robinette B. Administration to implement a national injection mandate, or is something else dictating this decision?
Whatever the answer, this national mandate is a no-go. It is unconstitutional. It’s not supported jurisprudentially. And, it does not follow the available science. The United States of America is a constitutional republic. We are not a monarchy and we will not abide a dictatorship. The current administration seems to require a reminder of that fact. This abuse of executive power may be just the thing to provoke that reminder.