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.
August 8th, 2021 at 9:06 pm
I’m with you. I’m vaccinated, and oppose the mandates. Here is one lawsuit of which I only recently became aware. Let’s hope there are more.
August 8th, 2021 at 11:07 pm
August 10th, 2021 at 6:05 am
The courts have been horrendous. Deferring to health comissars at every turn.
August 10th, 2021 at 12:38 pm
Not when it comes to churches and evictions.
August 11th, 2021 at 1:33 pm
For the first one, it’s clear vaccines can be mandated by certain entities for certain purposes (by schools, by colleges, for international travel, for particular types of work). Don’t see why COVID vaccines would be any different (once they are approved).
For the second, businesses and employers have broad leeway to refuse service to people for all sorts of reasons provided it doesn’t run afoul of federal anti-discrimination law. “not wanting to wear a mask” in unlikely to be added to a protected category (race, gender, sexual orientation, etc.) so hard to see this going anywhere. (Worth noting here that popular “it’s a HIPAA violation” claim also is completely groundless – was glad you didn’t spend time on that one)
For your third point, I see analogies both to 2nd amendment and abortion case law. These are cases where the courts have recognized an individual right but also ruled that the government has a compelling interest in regulating exercise of that right. Mask mandates seem to fall into that same bucket – as long as there is a compelling public interest (like, 600K+ covid deaths and <50% vaccination rate), courts are likely to give the government wide leeway. When the interest is not particularly compelling (like pertussis or measles case counts being close to zero, with a 90+% vaccination rate), courts will keep the government on a tighter leash. It's not a "short step" from one to the other at all (also real hard to imagine any politician not getting laughed out of the room for compelling masking or suggesting lockdowns for a disease which infected a grand total of 15 people in 2020-21)
I think that's the main reason why there's not interest in these lawsuits. As long as we're having high daily case counts, courts are likely to stay out of it, and once the case counts get low enough that there's no longer a compelling interest, the restrictions are going to be lifted (as they were earlier this year).
Unless there are people out there who can prove a significant financial harm due to having to wear a mask (seems unlikely), there's not going to be a big windfall lawsuit with tons of damages, so funding one of these would just be burning your money only to have your case mooted in a few months.
August 11th, 2021 at 4:51 pm
I don’t think courts would stay out of it for vaccinated people. Reciting the case count proves my point. In a lawsuit, the government would have to establish its criteria. Alternatively, your position is that the courts grant the government the right to force everyone to wear masks at its whim.
So the courts might defer to the government, but the government would be forced to state its criteria or a time limit. And suppose that criteria never ends. Are you saying the courts would grant the government the right to insist that vaccinated people wear masks permanently, in the event that we always have covid19?
that’s why I want the lawsuit. I don’t give a shit about damages. I’m kind of appalled that anyone would argue that the government has the right to do this permanently, and I guarantee you that had I written this post a year ago, asking if the government had the right to make us wear masks, you would have said it will be “mooted” by a vaccine, and yet here we are.
I’m really kind of appalled generally at how copacetic everyone is about the government forcing people to mask despite having vaccines and how the lack of limits on this is unnerving. And don’t tell me that there’s a limit on this, because there isn’t.
August 11th, 2021 at 5:23 pm
” Alternatively, your position is that the courts grant the government the right to force everyone to wear masks at its whim.”
That’s not my position at all. I don’t think the government could force ppl to wear masks “on a whim” or “permanently”. We currently don’t have a federal mask mandate AFAIK – different states (and even different municipalities) have different rules. Masks are mandated indoors where I live, but I can drive 20 minutes and they aren’t. So it’s unclear to me what you mean by “the government” – given how our court system works, there’s a lot of legal nuance on whether it’s a mayor, a state legislature, a governor, the president, etc. imposing the mandate.
I believe that currently, the “government” (at whatever level) would have strong evidence that there’s a compelling public interest in forcing people to do so (currently! not forever!) and that courts would accept that evidence and defer. At a future time in which COVID case counts drop, it would be much more likely that a lawsuit would succeed (assuming the mandates persisted which, why would they?).
But again, I live in an area where local government was quick to lockdown and quick to impose mandates, but dropped them when case counts dropped (and has now re-imposed them as case count rose). Not sure why you’re expecting mask orders to stay “permanent” when there’s been no indication anywhere that that’s the case.
August 11th, 2021 at 5:40 pm
“the government” being federal, state, or local, as I may have mentioned (but to get writing again I’ve stopped double and triple and quadruple checking).
“I believe that currently, the “government” (at whatever level) would have strong evidence that there’s a compelling public interest in forcing people to do so (currently! not forever!) and that courts would accept that evidence and defer. ”
Fine. Make them show it. Demand they establish criteria. At whatever level you like. I am boggled that anyone would believe and trust any government means short term after this year, and after then establishing a mask mandate for the vaccinated. Talk about an undeserved level of trust.
August 24th, 2021 at 6:16 am
Waiting for a government institution to give you your rights is how you lose them in the first place. What needs to happen isn’t a lawsuit, though I welcome lawsuits to follow on- what needs to happen is mass disobedience of all the mandates being proposed. Even you, Realist, are giving ground in every sentence of this essay, picking and choosing which rights you are willing to fight for when it is necessary to fight for all of them. There is no defensible principle in being ok with mandating masks for unvaccinated, but not the vaccinated- all you are doing in trying to focus on vaccinated people is conceding the ground that they can mandate masks for everyone over any respiratory disease for which no one is vaccinated.
If you want pushback, you are going to have to fight for no mask mandates at all, for anyone. You are going to have to fight for no vaccine mandates at all, for anyone. You are going to have to fight for no vaccine passports at all, for anyone. By trying to focus on the one thing that annoys you the most, you ensure the smallest possible cohort of like-minded people. In short, you are conceding defeat.
August 25th, 2021 at 4:08 am
Since that’s exactly what I said, I’m unclear on what you think your whole declaration of independence is about.
August 25th, 2021 at 7:30 pm
You are advocating lawsuits- they won’t work. You are advocating focusing first on mask mandates for the vaccinated. None of this works- you are depending on the courts to give you your rights- it doesn’t work that way. You have to actively resist- don’t wait on others to do the work for you. And if you want court cases, file them yourself, don’t wait on others to do it for you.
This all ends if even 10% of the population actively resists by refusing to wear masks, refusing to show passports, refusing to mask their children, refusing to send them to school. It is depressing to me that so few actually act to resist, instead waiting for others to bring lawsuits, lawsuits that are likely to fail because the judges are made of the same people imposing the mandates.
Resist- actively. Don’t wait.