Three Covid19 Lawsuits We Need

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. 

Why not?

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.

Life During Lockdown

I am living my best life.

I sleep in until 8:00. In the early days of the shutdown, my beloved Starbucks abandoned me. Only two little independent coffee shops were open through March and early April. One is just around the corner and serves cornbeef hash made from scratch. The other is a mile away with a fairly generic menu. So every morning I go on a two mile jaunt for coffee to avoid the thirty pounds I’d gain eating that cornbeef hash every day.  The walk gives me plenty of time to chat with the dozens of others out on the sidewalk, something I rarely have the opportunity to do when commuting every day. The rest of the morning in and around coffee is Twitter, the news, water the garden, maybe make a trip to the hardware or grocery store. Nothing intense, just little tasks. At 10:30 I start my first “office hours” session, working on zoom calls until 2, occasionally scheduling a later session for working students.

I don’t offer “classes” per se. I just assign work, tell students to show up a couple times a week in Zoom sessions, and let them choose when.  Timeshifting isn’t usually an opportunity granted teachers, much less the ability to work from home.  While I love the flexibility of office hours, remote classes narrow the entire act of teaching down to one mode. Explanation has always been my strong suit, but there’s so much more to teaching.  I miss the variety. I miss my job.

Ninety percent of my students were regular participants for the first month, eighty percfent the next, but those numbers will fall. Like most district and union shutdown grading agreements, ours is a spectacularly stupid policy. 1) Grades are credit/no credit only. 2) Students who were passing on the day the schools shut down are guaranteed a credit grade. In short, students with a D or higher in mid-march don’t have to do a thing and the district is legally committed to give them a passing grade.  It’s amazing we have any students at all.  On the other hand, the participation and learning I see my students achieving leaves my original expectations in the dust. The bureaucrats are doing a great deal wrong. My students are doing a great deal right.

After my last zoom call finishes up, once Starbucks finally reopened, I take another  mile and a half trek for an iced espresso. Sometimes the late afternoon is spent in my garden, which is the entire backyard: tomatoes, corn, beans, squash, watermelon, cucumbers, peppers, lettuce, basil. Weeds are a problem this year; I’m mulching with my stepdad in a couple days.

I am running an “after school” club activity that I dreamed up to give interested students  some experience planning and managing a donation project. This takes a couple hours of every day, either creating products or buying supplies. Add to that the  few hours a week spent driving around to student homes, delivering materials to assemble various products that we’re donating.  Mondays or Wednesdays I usually head into school just to see the place, talk to my tech guy about various issues, collect any supplies I need.

My favorite restaurant has as much respect for pandemic laws as I do, and allows regulars to dine in. I stop in at least once a week, often bringing a friend or colleague, or maybe my brother.  A few other restaurants are open on the same basis: the barbecue joint up the street, the pho shop I frequent, and the Vietnamese sandwich shop. The liquor store beer bar I love is still open, but Bart left the state to teach while living with his girlfriend, so I don’t go as often as I used to.

Almost every day, I walk to one of three stores for dinner groceries. On Friday and Saturdays, my nephew hangs out with us;  we cook a big dinner and have movie night. I try to keep up on grading while watching TV.

My maid service comes every two weeks. Every six weeks, Lyle the stylist, as he insists on being called, comes by and does hair–mine, my brother’s, anyone else who hears he’s coming. I’m starting up acupuncture pretty soon. As is probably clear,  I follow only those pandemic laws that would put a business or employer in jeopardy if they were caught allowing the behavior. I’m fairly scrupulous at school and extremely cautious in any student interactions. Most of the time, I blissfully abstain from virtuous pandemic theatrics.

My life is great. Like, Tony Tiger grrrrreat. The luxury of time, meaningful occupations both professional and vocational.

Another piece of good fortune: no one in my family is financially at risk. Parents are retired. My sister and her husband are wealthy enough to be semi-retired, although my sister still sells diet products for another five figures a month. My grocery manager brother is busy and respected in the community, regularly working with city managers, nursing home staff, and so on. My other brother spent a couple weeks unemployed but is back at work. My son is in sales, but  the shutdown hit when he was at the top of a cycle and he took unemployment too. He’s enjoyed family time at home with his wife and two kids, feeling very lucky for the opportunity, and just went back to work.  If all that good fortune isn’t cause enough for celebration, my renters are employed.

So my life, which I already found deeply satisfying, has improved in almost every way by being forced to work from home–the only exception being the work itself.

But my easy living barely compensates for the fury. I am aghast at the utter waste and devastation caused by this needless national shutdown. I’m furious at the media which openly advocates for policies rather than trying to inform the public.   Disgusted at governors who caved to the media.  Incoherently, snarlingly hostile to people who see nothing wrong in placing their (or others) peace of mind above the well-being of children and young adults.  I try not to rant about it and in real life, anyway, I succeed. Most of the time.

At least the people in my community share my disdain, whether they say so or not. Surveys say my neighbors support the shutdown laws. Observations say otherwise. The parking lots are full.  Stores are crowded. Lines are long. Apart from rush hour, traffic is pretty heavy. Mask wearing is barely what’s required by law. No one’s huddling in their houses. It’s a deep deep blue region. People will starve before they give Trump the satisfaction of a protest. But random, frequent conversations reveal I’m not alone in my annoyance and anger.

It’s Twitter and the media, the outside world, that flummoxes me with the constant reminder of the mindsets that got us into this mess.  The other day, mild-mannered Damon Linker said, without apparent shame, that schools should be closed as long as need be to ensure that children don’t infect vulnerable adults in their family. When I asked how long he was planning on locking kids down, preventing them from living every day life, he asked angrily who would console his children if they infected him and his wife both of whom are in high-risk categories. Now, I don’t want Damon Linker’s kids to feel guilty, but wouldn’t it be much less catastrophic if he just kept them home? But no, he feels that since many others have the same vulnerability, schools should stay closed. That’s a whole level of entitlement I don’t get. I do not take the thousands of deaths lightly. Neither do the many other people who find this lockdown unnecessary.

I remind myself frequently of my tremendous luck and fruitful, happy life in lockdown, to keep my mood as balanced as possible.

The disconnect between my comfortable circumstances and my anger at the decisions that forced this life upon me can be disconcerting. Were I younger, I’d probably spend all my time fuming and none just enjoying the freedom. But I was self-employed for twenty years, and not a day goes by that I don’t feel a shiver of the economic devastation the pandemic would have brought down on me had it hit  had the pandemic hit during one of my earlier careers.  So I enjoy the sun, the walking, the neighbors, the coffee, the garden, the time spent with students. I try not to obsess about events–now, see, don’t get the wrong idea. I obsess all the time, but mostly about my own life. The world I leave for others to worry about, usually.

Anyway. While reviewing this piece about my terrific lockdown life, I suddenly asked myself if I could do anything to feel even more productive and happy.  And the answer came back instantly:

I could write more.

 

 

Tradeoffs in the Era of Covid-19

Lawmakers Want to Reopen America, But It May Not Be So Easy–Charles Fain Lehman
No One Is In Charge of Reopening the Country–Michael Brendan Dougherty
Curve-flattening a result of behavioral change, not central planning–Jonah  Goldberg
The important question isn’t when the government is going to lift restrictions–Megan McArdle
Experience Counts When It Comes to Preparing a Population for a Viral Threat-Jim Geraghty

(There are many other such pieces on the center and center/right; I just picked a few at random.)

If you follow me on Twitter, you know that I am deeply skeptical of the totality of the nation’s shutdown. End arena attendance of professional sports, sure. Close Disneyland, yah. Halve occupancy rates of popular bars, require people to spread out when waiting in line, by all means. I’m very much in favor of closing airports, which effectively quarantines a lot of the country geographically. Require schools, gas stations and restaurants to devote considerably more labor to bleaching and cleaning restrooms several times a day, and close public access restrooms in most other retail outlets.

I’m not a “floomer”, although I really despise the smug way that people use that term. I worry a little bit about getting the bad form of the virus, but not as much, say, as I dread takeoffs when flying. My concerns revolve more about my mom and stepdad, less about my dad because he’s in a safe state.

But I firmly believe we should not have closed the schools. We should not have shut down most retail outlets, nor should we have forced restaurants to take out only. Give me back Starbucks!

The casual inequities of the shutdown really piss me off. It’s absurdly unfair that Walmart and Target, by virtue of four or five aisles of groceries, are allowed to sell pillows, picture frames, clothes, and electronics, while Best Buy, Staples, Kohls, and Macys are forced to close for months. It’s ridiculous that Home Depot and Ace can sell plants and seeds, but nurseries have to do online orders and curbside pickups.   I’m just grateful I don’t live in the state where “that woman” doesn’t let you buy mosquito repellant and seeds even from Walmart.

My attitude towards the virus is undoubtedly shaped in part by the same mindset that leads to my confusion that there are people in this world who don’t just get flu shots, but actually schedule them in advance. I worry about plane crashes and electrocution, occasionally fear the idea of getting cancer. But on a personal level, I simply don’t find a brand new virus that probably won’t kill you but might worth the level of reaction we’ve had forced on us by the governors, whipped on by a frantic media who clearly worries a hell of a lot more about germs than I do.

I am also personally outraged by the casual disregard those pushing the shutdown have for the nation at large. Shutting down the economy creates winners and losers, while the media and politicians pretended that business as usual = loser and shutdown = winning.

But such an outlook is manifestly incorrect, and before long people began (very hamhandedly) pointing out that we are bankrupting our future, hurting the children of our society, to save the elderly and the “vulnerable” (as if children aren’t vulnerable). But we aren’t, as all the same people will acknowledge, saving the elderly and the vulnerable, because without a vaccine or a cure the virus is out there and will wreak the same havoc on the elderly and vulnerable if it reaches them in six months instead of today. Thus all we achieved by shutting down, we were told constantly, is “flattening the curve”, saving our hospitals and our ventilators so they could be spread out to serve more covid-19 victims.  Except ventilators turned out to worsen symptoms, or close to it, so doctors aren’t using them as muchand we never had a shortage anyway. Meanwhile, hospitals are laying off staffbecause no covid19 patients, but no elective surgery, so no money.

I am grimly amused by the massive media layoffs which is not fair of me, especially since the layoffs aren’t really hurting the worst culprits. But here is my meanest thought: the media shutdown would have acknowledged considerably more complexity involved in shutting down the economy if the millions of opinion columnists, star reporters, and anchors  screaming for shutdown had realized how completely their industry would be clobbered when they got their wish.

The reaction to Covid-19 has split various communities of like folks. The GOP has certainly been split between those who were aggravated we didn’t shut down in late February to those who think it’s time to get back out there and eat, drink, and drive to work.  There are Dems who are noticing it’s not quite that awful, notably Kevin Drum, although most of them are all blaming Trump for, whatever. The skeptic community has been riven, and I’ve blocked more people on Twitter for their tedious lectures in the past month than in 8 years. I’ve been pretty far out there on the “this is all overkill” path and have received a number of private DMs from people saying they agree with me but are worried they’ll be professionally hurt by saying so.

But put aside what we should have done. We should reopen now. Not entirely. Not without restrictions. But we should reopen schools, stores, restaurants, and coffeeshops. We should reopen parks at all levels of government, let beaches have people, and let gas stations provide restrooms, again with restrictions. We should provide hotel rooms not just to the homeless, but to elderly and vulnerable populations that don’t live alone and might not survive their family returning to normal.

And when there are calls to reopen society, there are responses like those linked above, which fall into two categories.

First: whether or not governments reopen the economy, the public will have the final say. And the public isn’t ready to go back to work, school, and restaurants. Polls support this view. If you believe those polls are representative of actual behavior should the government reopen–well, all I can say is, you underestimate Americans’ capacity to tell pollsters what they want to hear. I think easily 30-40% of any given community will go running right out to shop, eat, drink, and beach/hike within a day of the order. And after a few days, another 40% will be right behind them. I’d guess 20 or maybe 30% of the population will claim they will “socially distance” for a while longer, but when you question them closely it turns out they go to stores early and restaurants late, after the crowds. Business will be down at first, sure. Millions are out of work. But most Americans will get out there. The only thing that’s keeping them from this now is the government fiat.

Suppose, however, that I am wrong and only a few people leave their homes, so restaurants and stores will still go bankrupt. Well, so what? Isn’t that what we’re spending trillions of dollars to help? Isn’t there a case for government support helping those businesses who get out there to help our economy recover, start rebuilding our tax base? Let the people who want to go out and shop, eat, drink, and recreate get started on it–again, with restrictions.

And if the reply is yes, but those people are going to transmit the coronavirus if they go out and about? Well, then, you’ve just shifted the debate again, haven’t you? If you don’t want to reopen the economy, then just say so.

Second: there are those who create these laundry lists of requirements that have to happen to end the shutdown. First, we need more tests. Then we need to use technology to track down infected contacts so we can stick them in hotel rooms. Then we need infrastructure to enforce and track all this and then we need to close everything down again in case we have a recurrence.

Wrong. We don’t need surveillance. We don’t need tests. We don’t need to build out an infrastructure. All of these things are nice. But we can do our best with what we have and move on, continuing to build capabability. Surveillance and tests are what the laundry list writers want, and they’re just continuing to confuse their preferences with what America needs. Generally, these are the writers who say things like: the American people had no idea how much covid19 was going to change their lives. There’s no returning to normal soon.

Well, no. Covid19 didn’t change Americans’ lives. Forced shutdowns did. And the Americans who don’t think these all-encompassing shutdowns were necessary don’t blame covid19. They blame governors. The media. By and large, these people appreciate Trump’s resistance to total shutdown and his enthusiasm for moving back to something approaching normal, whether or not it’s his call.

I don’t want old folks to die. I appreciate the need to protect the elderly and the vulnerable from a new virus that’s cutting a swathe through our population. But make no mistake: we are privileging the security of the vulnerable by purchasing the well-being of the youngest generations not just in terms of immediately lost education but also in the huge budget cuts that schools and other institutions will face because of the forced bankruptcy we’ve just imposed on much of America.  The public discourse is not acknowledging the tradeoffs involved in minimizing covid-19 deaths over the wellbeing of those who face minimal risk. People who argue for balance are ignored or mocked.

Change is coming. I hope it’s soon.