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The Two Covid Questions Before the Court

The Supreme Court has agreed to take up two vaccine mandate cases — the one involving OSHA and the one for health care workers (CMS).

A third mandate, aimed at federal contractors, remains in a kind of legal limbo. The temporary injunction granted by a Georgia judge was recently upheld by the Eleventh Circuit Court of Appeals. Whether that decision will also be appealed to SCOTUS, and if so whether they will agree to hear it, remain to be seen.

However, according to Jenin Younes, an attorney with the New Civil Liberties Alliance and charter member of Team Reality, “It is likely that whatever decision [the court] makes about [the first two] mandates will affect the contractor one as well, since the principles are similar.”

So the importance of the upcoming arguments against the OSHA and CMS mandates cannot be overstated. They will almost certainly be for all the marbles.

Far be it from me to tell lawyers things they already know, much less what they ought to say or do. But you’ll have to forgive me if, after the ObamaCare and Obergefell fiascos, I’m not exactly brimming with confidence in our side’s ability to make winning arguments before the nation’s highest court.

It seems to me there are essentially two questions before the Court: Whether the federal government has the authority to mandate any vaccines, and if so, whether they have the authority to mandate these particular “vaccines” (hereafter referred to more accurately as “injections”).

The answer to the first question, I believe, is “maybe” or “it depends” — although there is, in fact, no precedent for such federal mandates. The two examples the pro-mandate forces like to cite are both problematic for them, in different ways.

The first is the 1905 Supreme Court decision in Jacobson v. Massachusetts, in which the Court said the state could require citizens to take the smallpox vaccine.

That case poses at least two problems for mandaters. First, it involved a state mandate, not a federal one. Second, it upheld a law duly passed by the legislature — not an executive edict.

So Jacobson isn’t really a “precedent” at all, as it deals with a very different set of questions.

The other “precedent” often mentioned is the fact that, during the American Revolution, George Washington ordered his troops to be inoculated with a new smallpox vaccine.

Again, this is hardly the same thing. It applies to a relatively small group of people — soldiers — not to the general population. Moreover, the individuals in question, by virtue of enlisting, had already voluntarily placed themselves under the full and undisputed authority of their military commander.

In contrast, the vast majority of those affected by the Biden administration’s mandates have never ceded that kind of authority over their personal lives to the federal government. So there really is no precedent.

And yet precedent is not everything. New circumstances call for new responses, new court rulings, new laws. I’m sure we can all envision a public health crisis in which the federal government might need to step in — where a genuinely deadly virus is rampaging across the country, killing 20-30 percent of the population, including children.

If a vaccine existed that could stop such a virus in its tracks, we would all want everyone to take it and would probably feel the government was justified in making them — although, in a situation like that, the government probably wouldn’t have to. Everyone would be lining up.

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The post The Two Covid Questions Before the Court appeared first on LewRockwell.

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