I was against masks and lockdowns and school closings in March 2020, so I’m close to losing my mind at this point. I find this return to lockdown and masks infuriating, and no media institution seems up to the job of explaining just why it’s horrible. From Commentary to National Review to The Dispatch to Richochet to Fox News, the message is “Get vaccinated” and “it’s not our job to care about the people who don’t get vaccinated.” Sure. Fine. Whatever. I agree. That’s not the point, and by missing the point everyone taking that stance is little more than an appeaser.
What we need are lawsuits. I’ve been amazed at how few we’ve seen. Let the suing begin.
I’ve identified three lawsuits that need to happen. Two are obviously the source of much government fear. The other one isn’t even mentioned, from what I can see.
Lawsuit 1: Can Vaccines Be Mandated?
I am assured endlessly by Twitter folk that this is a no brainer. I’m….skeptical. Assume the FDA approves one or more of them.
The federal government can require immigrants to vaccinate, and I’d like to know why they are only now getting around to adding covid19 to the list. The feds can also make life unpleasant for its own employees (and probably contractors) who don’t get vaccinated, without going so far as demanding they get “the jab”, as some so loathesomely describe it. Military vaccination mandates are But permissible. I couldn’t find any source that disagreed with the Kaiser Family Foundation:
The federal government’s authority to institute a general vaccine mandate is unclear, and has not yet been tested in the courts, though it is likely limited at best.
As the KFF goes on to point out, states have much more clearly defined authority (cf Jacobson vs Mass, Zucht vs King), although no state has ever mandated vaccines for adults. Employers? Health care workers live with mandates. Some states ban employer mandates.
Bottom line, really, is that anyone who says vaccine mandates are a done deal are ignoring the fact that federal government has no case history supporting mandates, and states have never required adult vaccinations. And the real thing I wonder about is whether the case law supporting state mandates ever intersected with the ADA?
Finally, schools are an excellent control point for ensuring vaccinations, and while they do a very good job, it seems that a percentage escape vaccines without exemptions.
So 5% have exemptions, and another varying percent just gets away with not vaccinating. If that’s true for all the states, then even with mandates, it’s going to be tough to get full coverage.
Are Vaccine Passports Constitutional?
The difference between a vaccine mandate and a vaccine passport (proof of vaccine) strikes me as a bit fuzzy around the edges. Let’s restrict the term vaccine mandate for a requirement imposed by the federal or state government, while a passport is something that can be required by either government or private business in an environment where no vaccine mandate exists.
So for example, a private business requiring that employees and customers be vaccinated would want to see a vaccine passport, preferably one superior to a piece of paper with a scribble and a stamp. A government might not mandate a vaccine for everyone, but require evidence of vaccination to enter an official building. Or a business could require proof of vaccine for employees and customers to be unmasked, but still employ and serve the unvaccinated.
Some argue that proof of vaccine is constitutional; others say it’s not clear cut. I have no idea. Seriously, not even an opinion, although I’m far more in favor of the government just adding one more vaccine to the school list than I am a vaccine passport which in this era will see all sorts of new requirements once it’s created. That said when I consider the contortions that schools experience because of the judicial rights granted by the ADA and, separately, disparate impact, well. Let’s have that lawsuit, shall we?
Can Governments Require the Vaccinated to Wear Masks?
I care not at all about vaccine mandates, am more troubled by vaccine passports, but am seething with rage at this one, and no one else seems to care. Many call for people to ignore the mandate, but how will that help employees or government demands? Or, in the case of teachers, a government employer?
There are dozens of lawsuits protesting mask mandates, for children–unvaccinated children. Think about that. Everyone is up in arms about protesting mask mandates for the unvaccinated, and best I can see there are no lawsuits challenging the right of the government or employers to demand that vaccinated people wear masks.
I asked a lawyer friend who shrugged and said first, no one is interested in challenging these mandates. He also said that the courts would defer to health emergencies for some amount of time. Great, I said, for how long? He said that a lawsuit might result in a government response that explained their standards, and most likely a protest that the mandate would be of short-term. Well, I said, wouldn’t that be a good thing? Once the government made that response, wouldn’t a judge be more likely to use that standard–or even question the standard? He agreed that was a decent possibility. I’m depressed that a judge would defer to the government for a vaccinated mask mandate under any conditions, but as absurd as that would be, at least a judge would at worst demand the government prove its standard and duration.
So why no lawsuit? I am really boggled by people like Tim Carney and Jonah Goldberg, who agreed on a recent podcast that they were fine with a mandate if it prevented lockdowns (Carney said it again in an article.) I can’t bear such thinking and that it comes from “the right”, it’s downright disgusting. (When Carney and Goldberg moan that the right has moved inexplicably away from them, I hope they remember how willing they were to bend the knee to this bullshit.)
So where’s the lawsuit?
Do people not realize that if the government starts mandating masks for covid19, it’s a short step to mandating them for measles outbreaks, diptheria, pertussis? You may think that’s absurd, and I hope it is, but there’s literally no difference. If the government no longer accepts vaccines as the last word in prevention. And yet I can find no one challenging this demand legally–and legally is what matters. God help us all if the court system holds that the government can force citizens to wear masks any time it wants to.
I am reasonably certain that the government is mandating masks for everyone because they are afraid they’ll lose the first two lawsuits. The loopholes for disabilities and disparate impact in the other two challenges seem obvious. And maybe all the zealots in pursuit of zero covid19 understand how reluctant everyone is to challenge a mask mandate for the unvaccinated. Because reluctance is the only word I can see for it, given all the brave, bold people calling to ignore the mandate.
As regular readers know, I’m getting back into writing after a long hiatus (and long intermittent spells before that) in part by abandoning the research component that would normally send me down a bunch of enjoyable rabbit holes learning the ins and outs of Jacobson vs Massachussetts and Zucht vs. King or the Public Health Service Act. But I am a damn good internet researcher and I can’t find any serious legal analysis of forcing vaccinated to wear masks and on that point, I’ve been looking hard. Misleading headlines of worried articles, sure. But even a cursory discussion of the legal issues involved in forcing vaccinated people to wear masks, I can’t find. Maybe I missed something. By all means, let me know. Here’s a starting search. I went down four pages.
Meanwhile, everyone left right and center is righteously demanding that the unvaccinated comply. Why the hell should they, if the government can randomly demand we wear masks despite the fullest medical protection any time they feel queasy?
Far too many conservative commentators are more interested in mocking liberals and using the child mask mandate to push for their favorite school choice initiative. If you don’t see mask mandates for the vaccinated as the single most pressing issue–worse than making unvaccinated kids wear masks, worse then refusing vaccination, then you are doing it wrong. We need start there, if we’re going to push back.
I don’t bargain with these control freaks and think the many conservative appeasers who originally backed or demanded these mandates and are now whining did much to lead to this appalling situation. I think it’s all a horrorshow. Back when most of the media was calling for a temporary lockdown, I was warning that it was a foolish overreaction that would be hard to undo. I don’t care if people get vaccinated and find the lectures are articles on “persuasion” to be offensive and condescending. I oppose vaccine passports. I don’t think children should have to wear masks. But none of these are as bad as forcing masks on people who have vaccinated. So let’s start with the most important idiocy.