Vaccines

Lawsuit Over George Mason Vaccination Requirement Seeks Exemption for Those Who Had Already Contracted COVID

The lawsuit is filed by our own coblogger Todd Zywicki, a professor at the George Mason law school.

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You can read the Complaint in Zywicki v. Washington (E.D. Va.), filed yesterday; an excerpt:

Professor Todd Zywicki has already contracted and fully recovered from COVID19. As a result, he has acquired robust natural immunity, confirmed unequivocally by multiple positive SARS-CoV-2 antibody tests conducted over the past year. Professor Zywicki's immunologist, Dr. Hooman Noorchashm, has advised him that, based on his immunity status and personal medical history, it is medically unnecessary to undergo a vaccination procedure at this point (which fact also renders the procedure and any attendant risks medically unethical).

Yet, if Professor Zywicki follows his doctor's advice and elects not to take the vaccine, that will diminish his efficacy in performing his professional responsibilities by hamstringing him in various ways, such as requiring him to wear a mask that has no public health value given his naturally acquired immunity. He will also face adverse disciplinary consequences. In short, the Policy is unmistakably coercive and cannot reasonably be considered anything other than an unlawful mandate. And even if the Policy is not deemed coercive, it still represents an unconstitutional condition being applied to Professor Zywicki's constitutional rights to bodily integrity and informed medical choice, respectively.

Given the antibodies generated by his naturally acquired immunity, the Commonwealth of Virginia cannot claim a compelling governmental interest in overriding Professor Zywicki's personal autonomy and constitutional rights by forcing him, in essence, to either be vaccinated or to suffer adverse professional consequences. Natural immunity is at least as robust and durable as that attained through the most effective vaccines, and is significantly more protective than some of the inferior vaccines that GMU accepts. Very recent studies are also establishing that natural immunity is significantly longer lasting. As a result, GMU's Policy is designed to force its way past informed consent and infringes upon Professor Zywicki's rights under the Ninth and Fourteenth Amendments to the United States Constitution.

For similar reasons, the Policy constitutes an unconstitutional condition, because it is poorly calibrated to protect the public health, yet it poses disproportionate risks on some of its targets. That renders the Policy an unlawful condition insufficiently germane to its purported purpose. Furthermore, the disciplinary and other burdens that GMU is using to leverage ostensibly voluntary compliance with its Policy are not proportional to the purported public health aims.

In sum, the Policy violates both Professor Zywicki's constitutional and federal statutory rights because it undermines his bodily integrity and conditions his ability to perform his job effectively on his willingness to take a vaccine that his doctor has advised could harm him. And forcing him to take this vaccine will provide no discernible, let alone compelling, benefit either to Professor Zywicki or to the GMU community. The unconstitutional conditions doctrine exists precisely to prevent government actors from clothing unconstitutional objectives and policies in the garb of supposed voluntarism when those actors fully intend and expect that the pressure they are exerting will lead to the targets of such disguised regulation succumbing to the government's will. Professor Zywicki invokes this Court's Article III and inherent powers to insulate him from this pressure and to vindicate his constitutional and statutory rights….

Dr. Noorchashm also determined that a full-course vaccination procedure would expose Professor Zywicki to a heightened risk of adverse side effects that would exceed any speculative benefit the vaccine could confer on someone already protected with antibodies.

Existing clinical reports and studies indicate that individuals with a prior infection and naturally acquired immunity face an elevated risk of adverse effects from the vaccine, compared to those who have never contracted COVID-19.

This is consistent with understandings of immunology generally, which recognize that "vaccinating a person who is recently or concurrently infected [with any virus] can reactivate, or exacerbate, a harmful inflammatory response to the virus. This is NOT a theoretical concern[.]"

To the extent it's relevant, Dr. Noorchashm's declaration states that,

Professor Zywicki's semiquantitative antibody reading [as of June 1, 2021] measured 715.6 U/ml—approximately 900 times higher than the baseline level of <0.8. This level is comparable to that I have seen empirically in vaccinated persons who share his age and health profile, including myself. In my opinion, Professor Zywicki's spike antibody level is highly likely to be far above the minimum necessary to provide adequate protection against re-infection from the SARS-CoV-2 virus….

According to a study in the medical journal Life (March 2021), "our study links prior COVID-19 illness with an increased incidence of vaccination side effects and demonstrates that mRNA vaccines cause milder, less frequent systemic side effects but more local reactions." The elevated side effects identified in the article include events such as anaphylaxis, swelling, flulike illness, breathlessness, fatigue, and others, some requiring hospitalization.

A study published in The Lancet Infectious Diseases (July 1, 2021) examined reports from 627,383 individuals using the COVID Symptom Study app. The authors reported a higher incidence of both systemic and local side effects from receiving the first vaccine dose for those who had previously been infected with COVID-19 compared to those who had not previously been infected.

On the other hand, Mason is relying on the CDC's guidance, which provides,

Yes, you should be vaccinated regardless of whether you already had COVID-19. That's because experts do not yet know how long you are protected from getting sick again after recovering from COVID-19. Even if you have already recovered from COVID-19, it is possible—although rare—that you could be infected with the virus that causes COVID-19 again. Studies have shown that vaccination provides a strong boost in protection in people who have recovered from COVID-19. Learn more about why getting vaccinated is a safer way to build protection than getting infected.

As various motions are filed, we'll see more of the legal arguments on both sides, and I hope to blog more about the case in the future.

NEXT: Poetry Wednesday!: "Стихи о Петербурге" ("Verses About Petersburg") by Anna Akhmatova (Russian)

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  1. Arthur Kirkland is looking increasingly sensible.

    1. Thanks to Todd for language useful for a federal suit against the FDA, unrelated to COVID.

    2. Only if you have 1) failing eyesight, 2) failing function in the frontal lobe.

      1. Which is your excuse?

  2. How exactly is it up the judiciary to determine the specifics of good vaccination policy?

    1. Courts are called upon every day to decide questions that involve complex scientific and medical issues. How would this be any different?

      1. I’m drawing a distinction between broad questions — does it violate someone’s constitutional rights to require a vaccination — versus the minutiae — is the Pfizer vaccine better than the Moderna one. And this case strikes me as more about the minutiae. Also, it’s more about what is good policy than what is the line at which the Constitution is violated.

        1. Actually this case is not about minutiae. It embodies a basic medical question, the answer to which the plaintiff’s university has chosen to ignore

          1. Whether vaccination is better than natural immunity is not a question for the courts.

            1. Assuming there IS natural immunity, of course.

    2. Nominated by Liberals: Whatever the Dems say
      Nominated by Republicans: Are there any cocktail parties on the calendar?

      Yeah, a bit pissy, but CJR seems more worried about legacy and status for the court than making the hard decisions. It doesn’t seem like anyone is really on the side of We The People who established the government, but rather on certain groups in the government and select groups with enhanced access.

    3. Courts routinely rely on “expert witnesses.”

      He has them (his MDs) and GWU doesn’t.

      Checkmate….

      1. GWU? shouldn’t that be GMU?
        How do you know they don’t have experts?

        1. Who are familiar with his — personal — medical history?

          1. There are records and tests that experts could review.

          2. It seems this is more a matter of data about immunity than his particular medical history.

            In that respect the opinion of his immunologist doesn’t seem particularly relevant. He doesn’t seem to be making any claims about his specific medical situation other than that he had COVID, which is presumably undisputed.

            1. Bernard,
              I think that given the background of Todd’s MD, who is NOT Board Certified in Immunology (https://www.drugwatch.com/contributors/hooman-noorchashm/), Zywicki should have had a certified expert cited in his litigation. It would see better to the judge or jury.

              1. Much like any lawyer can practice any form of law, an licensed MD can practice any form of medicine.

                And unlike a judge, the MD is actually licensed to practice medicine.

                1. You really have no idea what you’re talking about, and you also seem to not even realize that fact.

                  You’re ignorant on both the legal aspect of having a recognized expert in the field of the basis of your lawsuit, as well as what a ‘licensed MD’ versus an expert in immunology actually distinguishes.

                2. Ed,
                  You are really a jerk. Sure the guy can and does practice medicine as long as he has a license from his state.
                  But you obviously know nothing about the value of the credential of Board Certification in a specialty. He has no credential indicating expertise in immunology or virology that might give his letter more weight before the court.
                  Why don’t you remain silentwhen you know nothing about a topic.

                  “And unlike a judge, the MD is actually licensed to practice medicine.”
                  And the judge can throw the plaintiff’s suit out summarily if s/he so decides.

                  1. It does seem impractical that everyone who wants an exception to a vaccine policy have not just their qualified physicians advice but a consulting expert. Their own physician who presumably knows their patients medical history in a lot more detail than a consulting expert should be more than sufficient, unless of course you think everyone that wants an exemption needs to file suit and prove their case individually in court.

              2. A certified expert would have been better, or at least maybe some marginally more neutral expert who doesn’t “at mention” many of his tweets to TuckerCarlson and SenRonJohnson. That demonstrates political motive more so that politically disinterested medical opinion. The hooman guy frames the distinction as being simply between the immune and unimmune. It very likely is not as simple as that.

                1. As a first approximation it is as simple as that, since George Mason isn’t checking vaccinated students to make sure the vaccine worked. Or even particularly distinguishing between vaccines with good track records, and vaccines with bad track records.

                  If you’ve got two students, one of whom had Covid, and the other was vaccinated with Sinovac, it’s not even a close question, you should prefer the one who had Covid.

            2. He’s commenting about Zywicki’s personal antibody level, and is familiar with his age, individual medical history, etc. There will never be empirical data about a specific individual, so doctors have to form opinions based in inferences from generalized data, but specific to the individual.

              And in Zywicki’s case, GMU is trying to make him have a procedure that his doctor says is unnecessary.

              1. “A procedure”!

                You guys. I tell ya. Sometimes you really make me laugh. Let the hair-splitting commence…

          3. How many MDs are required to be an expert on your own personal medical history?

      2. Ed,
        Don’t ever enter in a chess tournament.

        1. To help you with that, Chess is the one with the black and white squares on the board.

      3. He has them (his MDs) and GWU doesn’t.

        GWU isn’t even the right school, and that’s the least wrong part of your comment. His MD is not an expert, and of course the school will have an expert.

    4. How exactly is it up to them to determine the specifics of good abortion policy?

      The complaint is doomed, because the courts don’t actually give a fig about bodily integrity or any of that stuff, it’s just an excuse to legalize abortion, and not intended to apply to any other medical procedure.

      1. Unfortunately, I expect that Brett’s cynicism will win the day.
        However, the gross denial of demonstrated scientific facts is what has dealt the credibility of the CDC blow after blow.

        They are clearly not “following the science.” Does Dr. Fauci have the balls to tell the truth here? I don’t think so.

        1. It will be interesting to see what a 2023 GOP Congress does to Faucci….

          1. More irrelevancy. give it up Ed. Go get a whiskey.

            1. Always good advice.

              An ounce, or two, of prevention…

          2. Nothing/Call him to testify and yell at him like the Senate already does.

            1. You got that right

            2. They might also refer him for a contempt of Congress prosecution, which the DOJ will decline.

              1. If he shows up and testifies he’s not in contempt.

          3. “It will be interesting to see what a 2023 GOP Congress does to Faucci….”

            More fantasy violence, brought to you by special Ed.

    5. In the US the judiciary is the only element of government with the duty to adjudicate litigation. The pandemic is not the first case that brings into play scientific dispute. The entire Daubert principle is meant to provide the judiciary the expert testimony to resove such cases.

      In the case of Prof. Zywicki, the CDC is ignoring ample scientific evidence that supports the plaintiff. Moreover, its competence in crafting legally binding guidance is just this week called into serious doubt. You might as well ask, why is a public health agency competent to create a $150B 5th Amendment taking?

      This is indeed a case in which experts should testify on both sides presenting information from multiple agencies from other countries that do recognize the immunity conferred by prior infection.

      I, for one, find the science to be on the side of the plaintiff

      1. Does the data in fact show that immunity acquired by having COVID is as strong or stronger than that obtained by vaccination?

        1. Yes it does.
          Any difference are minor an may not be statistically significant

          1. So at the same time it’s significant, and may not be significant? And that’s your professional opinion?

        2. Ignoring Zywicki’s physicians advice, or ignoring everyone’s personal physicians advice will probably lead to unnecessary fatalities.

          I certainly think everyone should be vaccinated, unless their physician advises against it.

          Are employers like George Mason ready to assume full liability for requiring immunization against a personal physicians advice?

          1. Turns out it isn’t a physician so much as it’s a confederate who is a political hack with a medical degree.

            That isn’t really material to the legal evaluation, but on a personal basis it sure does make this look performative and partisan.

          2. What liability do you think George Mason would face? (Liability for what?)

            1. When the poor guy’s body rejects the Bill Gates microchip, his head will explode. If that happens in class, then the students will complain and want tuition refunds.

    6. How is it up to politicians from the Commonwealth of VA to “determine the specifics of good vaccination policy”?

      For that matter, how is it possibly up to the politicized scientific ignoramuses at the CDC?

      “Yes, you should be vaccinated regardless of whether you already had COVID-19. That’s because experts do not yet know how long you are protected from getting sick again after recovering from COVID-19.”

      Yep. They also don’t know how long you’re protected by the vaccine.

      “Even if you have already recovered from COVID-19, it is possible—although rare—that you could be infected with the virus that causes COVID-19 again.”

      Of course, it’s; possible, and less rare, that you will catch Covid if you were vaccinated.

      “Studies have shown that vaccination provides a strong boost in protection in people who have recovered from COVID-19.”

      No, they haven’t. And they’re not going to, because there’s no conceivable way that a vaccine injected into your arm is going to provide better systemic protection from a disease, than the protection provided from your body’s immune system after it defeated the infection.

      There’s two reason why the CDC is pushing this:
      1: After the way they jacked up the PCR protocol for testing for Covid, we got a massive number of false positives. Rather than admit that, and say “just because you had a positive Covid test doesn’t mean you actually had Covid”, they’re feeding us this line of BS.

      2: They’re power hungry and pathetic jerks who get off on jerking people around and forcing them to do pointless things.

      Because “they’re experts!”

      The answer to your question is that no one should be trying to force anyone to get vaccinated for Covid. And therefore any tool that can be used to stop the bullies and thugs, is a good tool to use.

      1. No, they haven’t. And they’re not going to, because there’s no conceivable way that a vaccine injected into your arm is going to provide better systemic protection from a disease, than the protection provided from your body’s immune system after it defeated the infection.

        Greg is a very good immunologist.

        1. Yes, actually, I am

          1. Greg also suffers from delusions of adequacy.

  3. This place hasn’t been as much fun without Prof. Zywicki to kick around anymore.

    I figured he had taken a job at Bank of America.

    (It appears the proprietor deleted that comment — “Although it is tempting to leap to conclusions, I will maintain an open mind until I hear the bank’s side of the story from Professor Zywicki.” — but not before it was labeled a thread winner and preserved by another commenter. Any attempted explanation with respect to yet another example of viewpoint-driven, hypocritical censorship, professor?)

    1. I can see the comment there.

      Maybe one of the explanations for your perceptions of victimhood and censorship is the old “dumber than average boomer tries to use technology, fails miserably.”

      1. I couldn’t find it using the search function (except when quoted by another commenter). I shall try again. Thank you.

        Did you like the comment?

      2. Prof. Volokh has acknowledged several incidents of censorship, disclaimed any remorse, and indicated he intends to continue to censor certain comments that ‘violate civility standards,’ a hollow excuse revealed as particularly lame recently. He engages in partisan, viewpoint-driven censorship aimed at non-conservatives, especially when they poke fun at conservatives a bit too deftly for his taste.

        1. Artie. Try to heal and to move on. No censorship has taken place since the move to Reason. I was blacked at the Washington Post. I complained to jeff@amazon.com. A Vice President for Legal Affairs emailed me, saying, I was unblocked. I have moved on and forgiven.

          At Reason, I have received nasty emails about sexualized vulgarism. I attribute that to some Russian cultural bullshit thing. They do not upset me. I asked Eugene, what if I were a student in your class. He said, I would be corrected but not cancelled.

          https://www.newyorker.com/magazine/2003/09/15/dirty-words-2

          I have no complaint about Eugene. I think he is the smartest lawyer in the US, and will continue to persuade him to rejoin us in the 21st Century, out his 13th Century quagmire. No practice from 1275 AD is acceptable today. His high intelligence was destroyed by 1L. It is not his fault. Yet, he is now doing the same to other intelligent, ethical young people.

          1. Artie. Your intelligence and ethics were destroyed by 1L. You are not better than Eugene, in the eyes of the normal person.

            1. “Your intelligence and ethics were destroyed by 1L.”

              What killed yours? Assuming you ever had any.

            2. “Your intelligence and ethics were destroyed by 1L.”

              What killed yours? Assuming you ever had any.

    2. 10 years ago and your butt still hurts? That’s impressive.

      1. I had forgotten that one.

        There’s no pain involved. I mostly chuckle when pointing to Prof. Volokh’s disingenuous, hypocritical, partisan censorship.

        1. Yeah too bad he can’t be open minded like you.

          1. I sense he is probably open-minded just like me.

          2. Like is better with Kirkland muted!

            1. Much as the American mainstream perceives life to be better when conservatives are inconsequential and disregarded by their betters . . .

              1. Like in San Fran, Artie? I hope you live in a Democrat jurisdiction so you can suffer unspeakable agonies.

            2. There used to be someone with a name something like that who commented here.

              But I never see him anymore, I hope he’s ok.

    3. It’s most definitely there (fourth from the top if you sort by oldest, presumably fourth from the bottom if you sort by newest).

      1. You are correct. The newest comments did not appear for some reason and could not be reached by the search function in the original presentation. Thank you. Wouldn’t want to lose that one!

        I regret ascribing that to censorship and apologize to Prof. Volokh for my mistake and for the undeserved opprobrium directed toward him. I hope everyone who sees my original comment also finds this one.

  4. At the very least places requiring vaccinations of the previously infected (or additional booster shots) should provide 1month + of paid leave to recover from the vaccinations. If you have already had the virus or a vaccination shot, the immune system reaction can be insanely robust because of how the vaccines are formulated.

    1. I think you’ll find that law schools normally provide unlimited paid sick leave to law professors.

    2. Not a month of paid leave; a lifetime of unlimited liability for any and all adverse consequences that can at all be placed on the vaccine. When non-medical administrators take it upon themselves to proscribe an un-approved treatment, they should have total joint and several liability for the consequences.

      1. The federal government maintains a vaccine liability fund. It applies to COVID, I think.

        https://www.hrsa.gov/vaccine-compensation/index.html

      2. Be accurate for a change.
        “non-medical administrators take it upon themselves to proscribe an un-approved treatment”
        1) they are not proscribing anything but good sense
        2) the treatment does have a EUA.

  5. Under pregnancy law, isn’t the employer bound by the medical recommendations of the employee’s MD — at least outside the employer’s own MD’s recommendations — and the CDC is not the MD of this employee…

    The employer is attempting to discriminate against the employee for the employee’s following the advice of his physician, and if having had cancer constitutes a “disability” under the ADA, then I’d argue that having had Covid is as well. And the basis of the MD’s recommendation is *because* the employee had COVID…

    If GMU were smart, they’d have quietly settled this one a long time ago by simply accepting his medical documentation as to antibodies, and I’m starting to think that GMU has gone over to the dark side in terms of administrative fascism.

    Which, increasingly, is what I think a lot of this is — petty bureaucrats thinking “because we can” more than anything else.

    And I do not see it ending well for GMU.

    1. You see Prof. Zywicki and his clingerverse law team winning this one, much as the conservatives have been winning the culture war?

    2. “Under pregnancy law”

      You know … if someone says that they know a pregnant lawyer … it doesn’t mean that they specialize in pregnancy law.

    3. Right on Dr. Ed.

      I don’t blame the bureaucrats for being petty … that is their nature. I blame the fearless lawyers, doctors, and ethicists who rolled over without a fight.

    4. Ed,
      You started off okay, “If GMU were smart, they’d have quietly settled this one a long time ago by simply accepting his medical documentation as to antibodies.”

      But then you cannot resist lapsing into one of your memes that drives your credibility to zero.
      “I’m starting to think that GMU has gone over to the dark side in terms of administrative fascism.

      1. Well, do you have a *better* explanation as to why GMU didn’t quietly settle???

        1. “Until you fabricate a more persuasive motive than the one I pulled out of my butt, mine is dispositive” is not sound reasoning.

        2. Um, because Zywicki’s lawsuit (a) was just filed, and (b) is frivolous?

          1. I certainly wonder what the point of the lawsuit is. Why GMU took the bait is beyond me. Just give him his exception but require medical evidence most people won’t bother getting or the vaccine. Pure politics lawsuit.

    5. Ed,
      Todd is NOT having a baby

    6. Under pregnancy law,

      What the *!#$(%&) is “pregnancy law”?

      isn’t the employer bound by the medical recommendations of the employee’s MD

      No.

      The employer is attempting to discriminate against the employee for the employee’s following the advice of his physician, and if having had cancer constitutes a “disability” under the ADA, then I’d argue that having had Covid is as well.

      Ed, every sentence of yours that starts out “I’d argue that” makes everyone who hears it stupider. You should stick with the fact that, as you yourself say, you are not a lawyer.

    7. “Under pregnancy law, isn’t the employer bound by the medical recommendations of the employee’s MD”

      If Zywicki is pregnant, his MD has some explaining to do.

  6. When will even a George Mason decide it is no longer worthwhile to associate with a professor whose knuckle-dragging partisanship overwhelms any concern regarding the safety of students?

  7. I’m not sure it’s possible to eyeroll hard or long enough.

    Let’s be clear what this says: a *state** government cannot exercise its police power to order **its own employees** to receive a vaccine under penalty of employment termination (**NOT** prison!).

    Worth noting key claims by Zywicki in this lawsuit are directly contrary to the OLC’s views on EUAs which he says are “deeply flawed” as the OLC “was assigned no role by Congress to administer the EUA statute.” As opposed to all the other statutes Congress assigned the OLC to administer, right?

    Eyeroll. Eyeroll. EYEROLL.

    1. No one is even being threatened with termination: according to the complaint, if Prof. Zywicki persists in refusing vaccination, he will suffer the unconstitutional burden of being asked to “wear masks on campus, physically distance, and undergo frequent COVID-19 testing.”

      1. Two paragraphs later:
        “Employees who “fail to receive an exemption and do not disclose their status and receive the vaccine” face “disciplinary action” that includes “unpaid leave or possible loss of employment.””

        1. 12″,
          The professor has disclosed his status. That is what his law suit is all about.
          Objection overruled

      2. Does not matter. The plaintiff has raised a bona fide, scientifically supported reason to ask for a medical exemption. The University’s denial is baseless and capricious.

        1. Why is the University not permitted to exercise a policy judgment on its own employee and impose its set of mitigation measures or punishments?

          1. Because their “policy judgment” is garbage, unsupported by any actual science.

            1. Sounds like a political question to me. Take it up with the Governor.

              1. So, whether or not I’m allowed to control my body is just a “a political question”?

                Nest time I see some pro-abortion loser blathering abotu “my body, my choice”, I’ll send them to you.

                1. Naw, we’ll send them to you, so you can lend them a supportive ear.

          2. It can but wehn it flies in the face of experimentally demonstrated science, it shouldn’t

            1. Shouldn’t isn’t a question for the courts.

        2. The problem there is the only thing in his complaint that is scientifically supported is the fact he had Covid, which leaves anti-bodies. The long term effectiveness of those anti-bodies remains in question. Iirc, the current term of effectiveness is believed to remain at 3-4 months.

        3. Does not matter. The plaintiff has raised a bona fide, scientifically supported reason to ask for a medical exemption. The University’s denial is baseless and capricious.

          “I don’t think I need this” is not a reason for a medical exemption. A reason for a medical exemption is “This would be harmful to me because of my medical condition.”

  8. It’s hard to see how a public entity can require someone to get vaccinated for a disease that they’re naturally immune to.

    1. Watch and learn, grasshopper.

      1. You trying out the Shaolin Monk thing, Arthur? 🙂

        I watched ‘Kung Fu’ as a child.

        1. I did, too. I was too young to appreciate either the wisdom or the camp, though. It just seemed . . . odd.

          Much like the grasshopper’s eventual demise.

    2. “for a disease that they’re naturally immune”
      your language serves you poorly
      More accurate is
      “for a disease that the have acquired temporary immunity by prior infection”

      1. OK, but no one knows how temporary it is.

      2. Well, it’s “temporary” in that if his body is never exposed to Covid again, he’ll lose his defenses in ~20 years.

        Of course the rest of us will have lost or vaccine benefits by then too, if not before then

        1. My goodness, what a stupid comment. The virus is all around all of us.
          “never exposed to Covid again” that is not happening.
          “he’ll lose his defenses in ~20 years.”
          says who on what experimental evidence? oh! there is none.
          Obection overruled

          1. This aged poorly, given Moderna saying a booster is is needed before Winter. So much for your supposition that people will be exposed continuously.

            1. Wow, so Moderna is saying that have to get paid for more shots?

              I’m shocked, shocked!

          2. Ah, so you’ve figured out that what I’m saying is “for a disease that the have acquired temporary immunity by prior infection” is a pile of BS.

            Congratulations

    3. It’s actually quite easy. The subject of “natural immunity” has been discussed for over a year now in hundreds of venues. Daily, in many instances.

      If you actually wanted to know and understand the limitations, as they’re currently known, of Covid-related natural immunity, you would know already.

    4. It’s hard to see how a public entity can require someone to get vaccinated for a disease that they’re naturally immune to.

      It’s not, actually.

    5. “It’s hard to see how a public entity can require someone to get vaccinated for a disease that they’re naturally immune to.”

      At the same time, it’s not so hard to see how a public entity can require someone to get vaccinated for a disease they say they’re naturally immune to.
      Back when I enlisted, I got a whole bunch of vaccines I didn’t ask for, and which conferred immunity to diseases that were not widely extant in the region at the time. As I recall, it was the typhoid shots that had the worst side effects.

  9. Is well known medical science to be ignored and replaced with “covid science”?

    Can anyone provide an example of any viral infection where the vaccine provides better long term immunity than having contracted the actual virus. Of course not, but with “covid science” well known medical science can be ignored.

    1. HPV.
      Tetanus.
      Influenza type B.
      Pneumococcal pneumonia.

      It’s a mixed bag; Natural response is usually in the same ballpark. For some viruses, it’s better than the vaccine. Chickenpox, for instance. (But you’re never really over chickenpox, it just goes into remission, so it’s better to have been vaccinated anyway.)

      But, yeah, there are a number of diseases where the vaccine provides better immunity.

      To be honest, we really have no idea at this point which is going to prove better long term, that’s something you don’t find out for years.

      1. Also natural immunity is kind of lame consolation if you have debilitating symptoms from contraction, like smallpox for instance.

        1. In most cases, even if the natural infection provides better immunity, if you haven’t already had the disease, you’re better off getting the vaccine instead. That’s the POINT of vaccination: To get the benefits of having been infected, without (most of) the downsides.

          The real argument is over this widespread policy of treating people who’ve been infected, and people who have neither been infected nor vaccinated, as though they were the same. When for all practical purposes immunity is immunity, regardless of how you came by it.

          1. “for all practical purposes immunity is immunity, regardless of how you came by it.”

            IF you have immunity, that is.

      2. At least in the short term natural immunity seems to provide better protection than the vaccines. This is based on re-infections of recovered individuals being significantly rarer than breakthrough infections of vaccinated individuals (despite having a ~12 month head start)

        I could be wrong but I think I read somewhere there are even more breakthrough re-infections (people who got sick twice after vaccination) than unvaccinated re-infections. Perhaps due to the vaccine making the infection more mild so the person doesn’t build up the same level of antibodies

        1. “At least in the short term natural (recovered) immunity seems to provide better protection than the vaccines. ”
          I think that is still unclear with respect to the several variant of concern.
          The latest study from Yale suggests that recovered immunity likely provides broader protection than the vaccine developed to counteract the original Wuhan (wild) strain.

          1. Well, the vaccine IS more optimized, so that’s to be expected.

          2. The thing that I wonder about is more theory than current observation. But all the vaccines are based on the spike protein, which is in turn the likely cause of the virulence.

            So any new strains that challenge vaccine effectiveness are going to be monkeying with part of the unique badness of the virus.

            That’s not going to be the case for the broader-spectrum of antigens natural immunity will address.

            I’m aware of no clinical studies on this front; this is just my understanding based on the general principles at work.

        2. The only study I could find on this that had any statistical significance showed previous infection and vaccine providing roughly equivalent protection from future infection (with vaccine being slightly more protective, but not statistically significantly so).

          The media is making a big deal of breakthrough infections, but I’ve seen no actual data supporting the idea that they’re more common than reinfection.

          1. There is a lot of very recent materials in top journals as well as on the preprint servers that discuss the relative efficacy wrt to variants of concern. Yes, the vaccine does better than the recovered immunity wrt to the Wuhan-L strain. But the recovered immunity is slightly more effective over a broader spectrum. In any case the differences are small and not likely to be statistically significant

            1. The principle of peer review is being, at best, severely strained in the rush to get information out — it will be interesting, ten years from now, to look back and see how much of the stuff in the refereed journals was actually accurate.

              I still remember when being of Haitian ancestry was considered a relevant risk factor for AIDS….

              1. Ed,
                You obviously know nothing about peer review except what you spin out of your head. Nothing is being rushed. My last medical submission took 3 months to be reviewed, long than the average for the journals for which I am Editor-in-Chief

    2. “Can anyone provide an example of any viral infection where the vaccine provides better long term immunity than having contracted the actual virus”

      Shingles is the most obvious example. Human papilloma virus is another.

  10. It seems like the legal arguments are already spelled out in the complaint. Does making the complaint into a brief with numbered paragraphs save time or something? The merits of the OLC opinion are totally irrelevant to his actual claims, and strike me as arguments against anticipated defenses.

  11. Weird! You know what else is in the news today?

    https://slate.com/news-and-politics/2021/08/jeffrey-bossert-clark-justice-department-covid-vaccine.html

    This lawsuit, brought by Todd Zywicki (VC) against George Mason law school (ahem), is brought by the NCLA.

    The NCLA (yet another ‘libertarian’ orgnization founded by Philip “Liberal Supression” Hamburger and funded by … yes, a Koch Foundarion) has hired Jeffrey Clark as the Chief of Litigation. Clark, of course, was the guy that tried to overthrow democracy from the inside on behalf of Trump. I mean… not even close. He was the one that was doing all the damage. ALL OF IT. Inside the DOJ. Nearly destroyed the country.

    Oh, and the board of the NCLA? Well … you have all the usuals, and … Randy Barnett (VC) and … oh man … Eugene Volokh (VC).

    Who has blogged about it here.

    (Seriously, EV- Jeffrey Clark? Ugh. I had to break my long moratorium on commenting when I saw that. I honestly could not believe it. Barnett? Sure. Todd Z.? Of course. But I was genuinely shocked to see you involved with this nonsense. Lay down with dogs … )

    1. EV refers to John Eastman as his friend and fellow law professor here:

      https://www.newsweek.com/yes-kamala-harris-eligible-vice-president-opinion-1524969

      The second part is no longer true after his outsized role in January 6th and his bogus legal argument that Mike Pence gets to unilaterally reject electoral votes.

      One wonders about the first. This is even more of a concern given the increasing evidence that Claremont is going full fascist.

      1. Is it something in the air? In the water?

        I was beginning to wonder when EV went all, “Hey, maybe we just need to regulate private companies more … you know, for the First Amendment. No big deal. Guys in my high school used to do it all the time.” I never thought I’d see that day- I mean, EV was always as absolutist as they come on the First.

        Now? I don’t know …

        1. Finally you say something I can agree with:
          “I don’t know.”

        2. If Turley is any indication, having an eponymous blog that has a significant right-wing extremist commentariat might have some long term negative effects. (Although Turley is more accurately explained by his enjoyment of being a contrarian hack they put on TV)

          1. Maybe. I think it’s more than that.

            I’ve had a working theory about people being radicalized- mostly because I’ve seen it happening to some people. It’s the media they consume – but not just “Oh noes, the Fox News!” No, it’s the social media; everyone says that they understand it’s a bubble, blah blah blah, but they don’t realize the corrosive effect it has on them- the algorithms constantly driving them to that level of emotional engagement.

            I’m sure that from their perspective, everything seems quite reasonable! But it’s that constant push … ugh.

        3. Eugene took the liberal’s side against First Amendment rights in both Janus and Masterpiece Cakeshop, so that seems inconsistent with the theory he has bowed to the extremists that slither through this blog.

          1. Eugene’s position in those cases was intended to limit the reach of positions he’d take (or had taken) in other cases. Be against baking as “expression,” in other words, so that photographers and wedding planner could still discriminate.

            1. Eugene did not support wedding planning as expression.

              1. EV has a lot (a lot) of banked credibility with me Josh.

                Which is why I was shocked that I saw the other article, and saw that he had posted about this case (I would have assumed he would include a “hey, I’m on the board” disclaimer).

                And yes, I found his most recent turn … and series of articles …. incredibly disheartening.

                I mean … at least there’s Kerr and Baude, right? Because if not …. I don’t want to know.

                1. I’d add Somin and Adler. Somin has a fairly consistent world-view that isn’t subordinate to cultural resentment and tribalism. You won’t catch him ditching free market fundamentalism because corporations are all run by woke communists now. And instead of being a bad faith troll, he sincerely points out how he thinks his libertarian views will actually achieve better policy results even for people on the left.

                  Adler has the good sense to know when right-wing thinking has gone off the rails and seems to recognize when people make good arguments that need to at the least be seriously considered. See his position on CA v Texas as well as his views on climate change and what Bagley/Mortensen say about delegation.

                  1. And of course Kerr.

                    1. Prof. Kerr has largely checked out.

                      It is an excused absence, though.

                    2. I already mentioned Kerr. 🙂

                      He probably needs a beer.

      2. Prof. Volokh seems to have been quite calculated in trying to straddle the mainstream-wingnut divide for many years, using faux libertarianism as a balancing pole, but recently he has lurched toward ‘full clinger’ setting, even in public.

        This seems unfortunate. He likely had a chance to become a productive (maybe even influential) member of mainstream academia. The Bradley-Koch-Federalist-Republican-Olin-Heritage-Family Research-National Policy pull, however — when augmented by Trump, QAnon, and the ‘sky is falling’ vote suppressors — seems to have become too much to resist.

      3. The Claremont Institute is apparently advocating for an “American Caesar,” – a dictatorship, in other words, if they don’t get their way.

        1. They’re also apparently boosting the regime of Antonio Salazar which has a few benefits for them:

          1. Plausible deniability on fascism accusations, because Salazar, despite being an authoritarian dictator was a noted critic of several aspects of fascism (although some scholars would certainly characterize his regime as fascist or fascist-lite)

          2. Less known association with brutalism at home. Unlike Pinochet or Franco, there isn’t as strong a record or association in people’s minds of the regime engaging in mass murder and torture (including rape).

          3. Salazar by most accounts was in fact a personally devout Catholic.

          4. A lot of the violence was external to Portugal proper: wars to maintain colonies in Africa, which makes it easier for them to ignore when selling him as a model. The death and destruction didn’t happen to anyone Claremont believes conservatives would consider relevant in picking a leader.

        2. Whoops my mistake. Claremont people while endorsing American Caesarism do not appear to directly endorsed the Estada Novo (yet). Some of other conservative magazines have, but I’m not sure if they have ties to Claremont.

      4. “and his bogus legal argument that Mike Pence gets to unilaterally reject electoral votes.”

        I thought it was a standard principle on the left that every ministerial role was an opportunity to make policy. That’s basically how most of the election rule changes got done last year: By people who were charged with enforcing the law as it was making a discretionary decision to enforce it as it wasn’t.

        So, I agree, it’s a bogus argument. In a sea of bogus arguments that tend to prevail. Our whole government as it functions today is largely based on bogus arguments that won the day.

        1. “Yeah I thought it was a standard principle on the left that every ministerial role was an opportunity to make policy.”

          That’s because you assume bad faith in everyone.

          1. *everyone you disagree with.

        2. “I thought it was a standard principle on the left[…]”

          Your poor understanding of the left comes from the high distortion that your partisan lenses provide.

    2. “Nearly destroyed the country.”

      I’m going to assume the rest of your comment is similar hyperbole.

    3. Loki,
      “This lawsuit, brought by Todd Zywicki (VC) against George Mason law school (ahem), is brought by the NCLA.”
      Which proves zero.
      Do you have anything intelligent to say about the underlying medical science?

      1. It proves nothing, but the choice of lawyers (or is it lack of choice?) seems worthy of note, as was the composition of Trump Election Litigation: Elite Strike Force!

      2. “Do you have anything intelligent to say about the underlying medical science?”

        ….that courtrooms are one of the worst places to discuss medical science? Whatever other issues I might have with Bernstein, I agree with him about the issues courts have evaluating expert testimony. Judges are bad at science, and juries are terrible. And both of them are much better at science than statistics.

        But they do, marginally, beat out the comment section of the VC.

        1. Well, then just give up.
          Because the courts are the only refuge against executive tyranny.

          1. Nope. That’s just not true. On a lot of levels.

            But evaluating complex scientific (factual) data should not be the position of a court when evaluating constitutional claims; either the claim has a valid constitutional basis or it doesn’t.

            To the extent that it turns on evaluating and deciphering complex scientific data, you might as well just have Dr. Ed debate himself.

            1. Why does this case rest on a constitutional claim?
              It is a tort against the plaintiff

            2. So facts are irrelevant to you?

              1. You gave it away above – the lawsuit asks courts to answer a ‘should’ question as though it were a ‘can’ question, and that’s not their arena.

          2. Or you could change the judicial system from one centered around generalists who think they’re really smart because they checked a bunch of footnotes in between reading five page case excerpts and drinking for three years to one more centered on actual expertise in particular areas?

          3. Unless I am missing something, this case ought to be decided on rational basis review and the government will easily win (with courts deferring to the elected branches as loki seems to prefer). To decide on any other basis would require either the recognition of a new fundamental right or some new standard allowing for a more probing review of the data by the courts.

            1. Maybe we do need a more probing review of the data by the courts.

              1. What standard leads to that conclusion (we need to apply the standard to other cases as well) and are the courts better equipped (in terms of knowledge or structure) than the elected branches?

                1. It is just the rule and rules are to be obeyed

                2. Josh R…You ask the 64K question. Can I do a ‘Potter Stewart’ and say I know it when I see it, and rational basis ain’t it? 🙂

                  1. Courts are historically pretty bad at evaluating expert testimony.

            2. A rational basis review that flies in the face of many instances of measure medical data by high competent research teams would not be very rational. It would only serve to make the CDC ( and the state agencies) look even less credible to the public.

              1. I very much doubt the data are so clear as to conclude there isn’t a rational basis for requiring a vaccine.

              2. But you know as well as anyone that what legal people call “rational basis review” would be better termed, “Not chewing on the furniture mad review”. It doesn’t require the policy being reviewed to be actually rational, or based on facts. It just requires that the judge be able to imagine a (possibly factually wrong!) basis for the policy that you wouldn’t have to be insane to entertain.

                The judge’s imagined basis doesn’t even have to be the actual basis.

                “Rational basis review” is really just “Does the judge feel like permitting it” review. They can always imagine a ‘rational’ basis for a policy they like, or suffer a failure of imagination for one they don’t like.

                1. I can’t imagine that this is only subject to rational basis review…

                  Jacobson was a long time ago…

                  1. There’s no expiration date on Supreme Court decisions.

          4. Because the courts are the only refuge against executive tyranny.

            Don Nico, I don’t believe you are correct about that. It has become clear since last week that Trump actually did attempt to overturn the election result, to keep himself in office. What stopped him turns out to have had little to do with the courts, but more to do with constitutional loyalty from other members of the executive branch. Also playing a major role were checks and balances, both within the federal government, and via federalism, from the states. The picture remains unclear and incompletely reported. Trump is still at it. This ought to be the dominant news story for weeks, but not much sign it will even get follow up, amid the Covid coverage and Cuomo’s sex problems.

            Also? I think you should spare some concern for judicial tyranny.

            1. Okay, I applaud Mr. Pence for doing the limited task that he was given.
              But what thwarted all of Trump’s nonsense from Election day to January 6? The courts.
              ANd what institution repeatedly kept Trump’s authoritarianism in check? The courts.
              And what has been the strongest check and balance against the Orange Clown? The courts.
              Sure Trump is still at it and what i keeping him in the clownhouse? The Courts

            2. “concern for judicial tyranny.”
              as for that issue, when the legislature refuses or is unable to do its job, you get what you ge. The courts as the last bulwark against tyranny

            3. “It has become clear since last week that Trump actually did attempt to overturn the election result, to keep himself in office.”

              Every loser who demands a recount is doing THAT.

              At least nominally, (I can’t testify to what might have been going on in Trump’s head.) they were demanding that the certification be delayed until various election irregularities were genuinely investigated and resolved. Not that Trump simply be appointed President for life.

              I tend to agree that it was too late for that, and it’s pretty outrageous that the judiciary refused to permit those investigations when they might still have mattered, basically because they WOULD have mattered.

              But, yes, Pence did the right thing there.

              1. They weren’t demanding delay Brett.

                DoJ leadership internally wrote a memo that lied in order to fabricate legitimacy for *overturning the election*. (That thankfully higher-up DoJ leadership countermanded)

                This isn’t normal politics. This is thankfully stymied attempts at death of the Republic stuff.

                1. Yes, they literally were demanding a delay while the legitimacy of the certifications could be investigated. That is literally what they were doing in the real world, whatever was happening in the shared fantasy you live in.

                  1. That’s not what they were doing in the real world, which is why the higher-ups said this was not something they would send out.

                    It was a memo full of false smoke the DoJ had already decided wasn’t worth following up on.

                    The purpose of said smoke was to give political cover to decertify votes, and thus overturn the election.

                    Though the purpose of even a delay is not hard to figure out.

          5. “the courts are the only refuge against executive tyranny.”

            They’re going to make you tear off your “I (heart) the second amendmend” patches.

      3. Maybe not but I think the background of who exactly is involved in bringing the suit is relevant information.

        1. for small values of relevant. To me what is more important who will litigate and what experts will be called.

          1. You know, I’m old enough to remember a long-ago time, way back in 2015 … when the idea of a Brandeis Brief was considered anathema to conservatives.

            1. I really don’t care about your political polemics.
              The claim of the plaintiff has demonstrable scientific validity. EIther government entities recognize bona fide scientific data or any claims of “following the science” are laughable.

              1. Since you l don’t understand what I’m talking about or why, Don, and just want to insult me…..

                I’ll let you get back to engaging with Dr. Ed. Have fun!

                1. Look, to me, you were unclear about your point.
                  I’ll ask you a straight forward question.
                  Are you saying that this case never reaches the facts of the underlying science?

                  1. I’m saying three things-

                    1. I am unlikely to engage with people that either insult me, or demand that I keep answering questions that misrepresent what I said.

                    2. If you would like me to “pull something out my posterior” like Dr. Ed about the underlying science, I will respectfully decline. I do not wish to wade through that contentious complaint for the the facts again- because even if I did, I’m not a scientist. If you need a Dr. Ed anecdote to argue against, I will provide the following:
                    “So this is just like the great Chupacabra outbreak in Maine in ’68. And you know what? Ol’ Muskie took that Chupacabra vaccine and that’s what kept the ticket from winning because it just laid him out. He would have been better getting bitten! And I heard one of my talk radio people say, ‘The Venezuelans that made those Dominion machines? They inserted Chupacabra vaccine into all those mRNA vaccines, along with the microchips, and there is a peer-reviewed article from a Nobel winner that completely proves it, if you read it upside down.” Good?

                    3. Who knows what the court will do. I have my opinion on the legal claims (or lack thereof), because that’s something that’s mildly interesting. You seem very interested in the underlying science- good for you.

    4. “Nearly destroyed the country.”

      Pretty fragile country if an Acting United States Assistant Attorney General for the Civil Division can nearly destroy it.

      I never heard of him before today, but whatever, he seems a good catch for NCLA if he is so powerful. Litigation seems less a chore than nearly destroying the United States.

      1. Mr. Clark — like most among the legions of wingnuts — wouldn’t have gotten very far on his own. The then-President of the United States, however, was in a position to inflict great mischief, especially with pliant clingers such as Mr. Clark at his side.

        Carry on, clingers. Your betters — such as the lords of Twitter and Facebook — will let you know how far and how long.

      2. “Pretty fragile country if an Acting United States Assistant Attorney General for the Civil Division can nearly destroy it.”

        We almost let a reality TV show character tear us apart. So, yeah, maybe a bit fragile.

    5. Good to see you, loki.

      Yeah, not liking where EV is going these days.

      1. He is going to lose, Sarcastr0.

        To better Americans.

        Deservedly so.

      2. Hey- still here? 🙂

        I drop by occasionally, read the comments, and they remind me why I don’t comment any more.

        Yeah, there has been a subtle, but quite noticeable, shift in EV.

        1. I noticed it some time ago on guns – he was into the ‘Dems want to ban all guns but don’t say it.’ I was pretty disapointed.

          I drop by less these days, mostly due to professional stuff taking more time. But I can’t quiiite stay away 😛

          I do have a lot of people muted, but even then I have a perverse curiosity sometimes.

        2. I can see that EV has had a bit of shift on *free-speech* issues, as he seems to be struggling with a sort of libertarian paradox of letting private entities control speech (when said entities are so powerful as to arguably be a form of government).

          But on the issue of vaccine mandates: If he supports his co-blogger’s case here, that seems well within standard libertarianism. Not seeing any shift there.

          1. But this case is not a good one; it’s performative.

            Shifting from working in in the law we have, to tantrums like this, is a number of steps removed from descriptive to advocacy to partisan *ahem* virtue signaling.

            Won’t win, but’ll make things awkward for those bastiges at GMU!

          2. “I can see that EV has had a bit of shift on *free-speech* issues, as he seems to be struggling with a sort of libertarian paradox of letting private entities control speech (when said entities are so powerful as to arguably be a form of government).”

            Or maybe, as a conservative, he just assumed that big businesses would always be on his side, so he was OK with them have control over what other people could share with each other. The way that people who thought the Fairness Doctine was an albatross when it looked like it might limit content on AM talk radio, suddenly long for the Fairness Doctrine so they can make Big Tech carry their message.

  12. I understand the legal arguments. On a personal side, If I was Todd I would get the vaccination. The chances of the vaccine actually causing him significant harm are exceedingly low and the risk from getting the virus and becoming seriously ill, even if you have had the virus before, are, according to every doctor I have heard from, at least equal or higher.

    Just because you have the right to do something does not make it the right thing to do.

    1. If I were Todd, I would listen to my doctor. Which is what everyone should be doing. I truly can’t believe we are all reading this and arguing that an employer (!) ought to be able to force its employees to literally disobey their own doctor’s advice or else.

      There’s a comment upthread about “covid logic”, the strange form of thinking where up is down and we all leave our brains by the door. To that let us add “covid civil rights”, which is the strange formulation of civic freedom where inalienable rights are just one HR department bureaucrat’s memorandum away from the dustbin.

      1. First, Zywicki picked this doctor. It’s not like this guy represents the top tier of medical science. Maybe he’s amazing, maybe not. But he was selected by Zywicki for a reason.

        Second, Zywicki isn’t just a random citizen. He’s directly employed by the State Government. Yes, the state government should be allowed to mandate this for its employees. If Zywicki doesn’t want the vaccine, he’s got plenty of options. For example, he could wear a mask. Or resign.

        1. It doesn’t matter!

          Zywicki had every right to pick any credentialed doctor he wanted. If you think his doctor is exercising quackery, you can go after his license … but you cannot tell Zywicki to go see your doctor any more than I can tell you see mine.

          1. And an employer is entitled to duck, rather than salute, when the employee’s chosen doctor starts quacking.

          2. You haven’t met Obamacare or Medicare yet, have you?

          3. His MD is not a quack but he is not a board certified immunologist either. Rather he is an advocate for patient safety, ethics and women’s health. He specializes in cardiothoracic surgery.
            If I were the plaintiff, I’d line up some true experts

            1. The tweets from Prof. Zywicki’s chosen doctor are full of shout-outs to AM radio hosts, Tucker Carlson, Sen. Ron Johnson, Robert Kennedy Jr., Laura Ingraham . . . George Mason and its lawyers must be cowering at the prospect of tangling with this one.

              1. I know a fairly good surgeon who lives for the Moose hunt — where getting a 1000 lb animal out of the woods is half the fun. Highly-competent medical professionals can have some esoteric hobbies, not to mention political views with which you may disagree.

                They are, after all, human beings.

                1. Medical professionals can also be unreliable hacks — not unlike law professors, or soi-disant educators.

            2. Maybe cardiothoracic surgery (and reducing the need of it) is of particular interest to Zywicki.

              Remember that we are talking about individual human beings here, and that every human being is different….

              1. His suit is not about cardiology or surgical practice.

          4. Well it does matter in specific response to the lead comment to which I was replying. “Listen to your doctor” is totally valid, unless you’re looking for a doctor to echo what you want him to say. This isn’t a legal argument I’m trying to make, and I certainly wouldn’t suggest at all that Zywicki can’t pick his own doctor. I am saying that, as a matter of commentary on public policy, it’s totally reasonable to question how these two people came together. I strongly suspect there was some element nutpicking (on one or both sides).

            1. If your doctor isn’t some rando in a lab coat who slept in a Holiday Inn Express last night, but instead an actual doctor, the fact that you could find a doctor willing to echo what you want him to say means that what you want him to say is probably within the range of acceptable medical advice. Which is actually pretty wide, a lot of things in the medical field not being precisely nailed down to the point where two doctors can’t legitimately disagree.

              1. Brett, do you believe there are no Sidney Powells or Michael Avenattis in medicine?

        2. This doctor’s tweets indicate he is from the Clinger School Of Medicine.

      2. “If I were Todd, I would listen to my doctor. ”

        Good idea, if he gets a doctor who has his interest first in line.

    2. Al, As a risk adverse person, I would do what you suggest.
      However, with NY already considering issuing “green passes” and ignoring the health status of 35,000,000 Americans who have recovered from COVID-19, I think that litigation is in order.

      1. Litigation first. Then,
        We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

        1. Yes, litigate first.
          But choose your legal and medical expert team to win.

          1. Have you seen what is happening in Australia right now?

            The thing about authoritarianism is that you inevitably reach the point where it either becomes logistically unable to enforce compliance with your fiats, or you are reduced to using means that are so reprehensible that those you employ refuse to use them.

            For example, the DDR troops would shoot a few of their fellow Germans attempting to climb over the wall, but they weren’t willing to shoot *thousands* of them and that’s why the wall fell.

            1. Ed, Stay on point.
              Have you seen what is happening in Hungary at this point? how about Afghanistan?
              And what about those Red Sox?

              1. I think he is on point: Litigation only works if your government is open to it working. If the government is determined enough to turn authoritarian, litigation becomes a losing strategy.

                Australia is currently enforcing their lockdown with roving military patrols. Try litigating under martial law.

                And it’s insanely disproportionate, it’s not as though Australia has people dropping in the streets, or hospitals overwhelmed. The case rate is peaking, but the death rate is barely budging, in the face of a more contagious, but less virulent, strain.

                Countries with much worse outbreaks haven’t gone as police state as Australia is right now.

                1. Your entire comment is about Australia. You even say it’s a special case.

                  And yet the OP is about America.

                  This is indeed the usual Edian gish-gallop off-topic fiesta.

                2. “Litigation only works if your government is open to it working. If the government is determined enough to turn authoritarian, litigation becomes a losing strategy.”

                  If you start by assuming that anyone who disagrees with you lacks any good faith reason to do so, it becomes increasingly obvious that they’re turning authoritarian.

    3. Squire Al comment – “The risk from getting the virus and becoming seriously ill, even if you have had the virus before, are, according to every doctor I have heard from, at least equal or higher.”

      If you have already had the covid virus, the risk is exceedingly low for any ill effect.

      One of my clients own several nursing homes, there was an out break of 9 previously vaccinated patients who got covid, all with mild to moderate illness (ages 80-90). However, none of the patients that previously had covid caught covid a second time. While that is anedodal evidence, there is indication that having actual covid provides better long term immunity than the vaccine.

      1. “If you have already had the covid virus, the risk is exceedingly low for any ill effect. ”
        Tom, get better sources of information than gossip that you would jut like to believe for political reasons

      2. “While that is anedodal evidence, there is indication that having actual covid provides better long term immunity than the vaccine.”

        That’s anecdotal evidence that people CAN learn how to keep socially distant, if the consequences of not doing so are demonstrated for them, er, demonstrated on them.

  13. The side effects for the vaccine are no joke and are being underreported by the media. I would say one in four suffer a significant side effect that keeps them out of work for one or more days. And probably one in ten requires further medical treatment for adverse reactions. I’m not saying don’t get the vaccine, but there is something immoral about mandating someone get it when it is an unnecessary medical treatment and comes with lots of potential risk.

    1. Ah yes, Doctor Jimmy the Dane has determined 25% of vaccine recipients suffer a significant side effect. And this is “underreported by the media.”

      Cool, would you please provide evidence for these claims?

      1. WRD
        August.4.2021 at 4:29 pm
        Flag Comment Mute User
        “Ah yes, Doctor Jimmy the Dane has determined 25% of vaccine recipients suffer a significant side effect. And this is “underreported by the media.””

        that result mentioned by Doctor Jimmy Dane is common knowledge, though its probably closer to 10-15% with mild to moderate symptoms with the second dose. Mild sickness for 1-2 days, sometimes 3 days, as opposed to significant side effect.

        1. “that result mentioned by Doctor Jimmy Dane is common knowledge”

          Common knowledge that he made up, and he objects to having someone point out that he made up.

      2. WRD,
        In my household, 2 out of 3 of us have suffered and still suffer from very noticeable side effects of the vaccine that cause lost days dues to sickness (myself) and greatly impared mobility (my son). I know for a fact, that our HMO has not reported either case as a vaccine side effect.
        I’d not write off Jimmy’s comment so easily.

        1. He made up numbers, Don.

          1. ‘I would say’ precedes a statement of opinion. You’re going to break something w/ that kneejerking.

            1. Sure, he acknowledged his numbers were made up, but he still made up numbers.

      3. People who criticize Doctor Jimmy must not know Doctor Jimmy.

      4. While at it, please explain WTF is a, “significant side effect.”

        I have had a life-long cranky immune system, for which I have since many years received monthly infusions to suppress 3 different autoimmune diseases. It is also remotely possible that before anyone was testing, in mid-February of 2020, I had an early case of Covid—a respiratory attack with other weird symptoms, and a positive chest x-ray which doctors treated as equivocal because it looked unfamiliar.

        I got treated with antibiotics which did nothing I could discern. At the time, my wife was employed at a private school which numbered Chinese natives among its students, and many of them had gone home to China during the Christmas holiday, before returning mid-January.

        I had mild complaints for two days following my second dose of Moderna, in April of 2021. On the morning of the third day, I awoke feeling great. No more headache, no more arm soreness. Then, quite suddenly, mid-morning, I got chills, overwhelming fatigue, shaking so severe I couldn’t pick up a pencil or hold a glass of liquid in my hand. I went to bed and was out like a light for about 12 hours. For 8 days after that, I was on a roller coaster, between no symptoms, and episodes of debilitating fatigue that put me back in bed for many hours. Then it was over, and no trouble since.

        I have no idea where to put that episode on a scale of vaccination side-effects. Probably, my particular immune system status played a part. It inflicts notable fatigue episodes all by itself. I am 74 years old, and grateful to have the vaccine, side effects or not. If it were medically indicated, I would not hesitate to take a booster shot, and maybe do it all over again.

        I am a little impatient with complaints about side effects. They mostly seem out of scale, considering the stakes. I live in one of the most heavily Covid-affected counties in one of the most heavily Covid-affected states. The hospital where I get those monthly infusions—a world-class institution sometimes called America’s best hospital—witnessed horrifying mortality, and suffered staffing strain that was visible to every patient who went there regularly.

        I talked at length with doctors and nurses about that. Hearing what they went through was the most imposing manifestation of Covid I have yet encountered.

        I suppose Covid minimization ought to be expected, at least among folks with less-prominent vantage points to view the pandemic. I try to make allowances, but as I watch the nation teetering on the brink of descent into another wave of now largely-needless suffering, I find I just can’t reconcile myself to more Covid minimization, and complaints about vaccine side effects.

        1. I had a significant side effect to the typhoid vaccine I was given in AF tech school. For a couple of days, moving the arm that got the shot even the slightest twitch caused excruciating pain. Bummer news for the guys who got the shot in their right shoulder, and had to salute., or even for those of us who got it in the left arm, but then had to pick up something heavy, like say a Sidewinder missile. Three of us trying to pick up a 180-pound missile with one arm each was probably amusing to watch, but it was not awesome to experience. But we got no time off, and the medicine prescription was one tylenol tablet.
          There were some people who didn’t react strongly to the typhoid shot, but most of them DID react strongly to the tetanus shot, instead.

    2. The Nuremburg Trials come to mind on that…

      1. Ed, Ed, Ed
        Stop it with this usual silliness

        1. Silliness is all Special Ed can manage. Especially when he tries to make serious arguments.

    3. Jimmy! You promised me trump would be back by now? What gives

      1. I was prepared for the worst, based on the assurances Trump would be reinstated:

        National Communications Czar — Eugene Volokh.

        Banking Czar — Todd Zywicki

        Foreign Policy Czar (Domestic) — David Bernstein

        Foreign Policy Czar (Foreign) — Eugene Kontorovich

        Surveillance And Secrecy Czar — Stewart Baker

        Your Czar of Czars — Josh Blackman

        Qualifications Czar — Gail Heriot

        No-Longer-Needed (Or Welcome) Czars — Ilya Somin, Irina Manta, Nita Faranhany, Dale Carpenter

        Imprisonment Czar — Paul Cassell

        Faith Enforcement Czar — Mark Movsesian

        Cultural Czar — Sasha Volokh

        Heretic Control Czar — Randy Barnett

        Weaponry Czar — David Kopel

        1. Hey, c’mon Art – Sasha does good poetry readings ????

          1. Doesn’t matter. All those jobs would have been given to Jared.
            Gotta keep him busy, so that Ivanka would be free to date.

    4. “The side effects for the vaccine are no joke”

      No joke! The mask just falls right off your face!

  14. The covid vaccines went though months of trials with tens of thousands of participants to determine if they are effective. Until the same level of rigorous study has been done for those previously infected then the current guidance that previous infection does not count must be followed.

    1. Molly,
      Your objection holds no water.
      We have 200,000,000 people of all colors around the world who have been infected. That is sufficient information

      1. No. Since they have not been tracked in a rigorous study.

        1. There have been several studies of natural immunity specifically related to COVID. See Marty Makary’s piece for links:

          https://www.wsj.com/articles/the-power-of-natural-immunity-11623171303

        2. You don’t need a “rigorous” study.
          Just serology on a percent of them will do.
          In fact you canot tell me any benefit that a so called rigorous study would bring over large scale serology testing, on both vacinated and recovered persons.

          1. Don Nico, why wouldn’t large scale serology testing, with collation of results with an eye to different patient medical histories and complicating factors, not amount to a, “rigorous,” study?

            Of course, no one can tell you about potential information benefits that might arise from studies yet undone. I thought discovering that kind of stuff was why you did the studies. I can tell you there are huge blank spots in available knowledge about effects of Covid, and Covid treatments, on people with compromised immune systems. Those seem—for whatever reasons, I presume there were good ones—to have been systematically excluded from most of the investigations so far.

          2. “In fact you canot tell me any benefit that a so called rigorous study would bring over large scale serology testing”

            serology testing will tell you what’s in their blood, but what you need to know is what’s in their lungs, and can it get out and into someone else.

      2. “We have 200,000,000 people of all colors around the world who have been infected. That is sufficient information”

        Swell. What percentage of them are currently unable to carry enough virus with them to infect another person? And where did you publish?

    2. Ahhh, the usual inversion of the burden of proof. While this might appeal to junior totalitarians everywhere, this is not how free societies function. We have no reason to believe that prior infection yields significantly worse immunity results than vaccination, so until you can make a solid case for that, piss off.

      1. If they want to claim that their immunity is a valid substitute then a vaccine then I want the science to be the same level as the vaccine.

        1. … then I want the science to be the same level as the vaccine.

          A “Science !” lover I see. So there are different “levels” of science are there now ? You mean your collection of experts you don’t really understand trumps their set of experts you don’t really understand ? How convincing. Science is a collection of mental models and the associated data, if you have it, bring it. Otherwise as I said, piss off.

          1. Actually Molly is NOT a science lover. She wants to discard considerable experimental science performed by reputable research groups.

        2. The science is at that level. I am afraid that you do not understand the purpose of clinical trials.
          All one needs to know is
          1) did the person test positive in the past for COVID-19 and
          2) what are the levels of anti-bodies and t-cells in the blood
          You are not running a blind study in which covid-innocent persons are either give vaccine or a placebo or nothing at all

        3. So that the government can get it’s way by refusing to fund, and discouraging studies that might suggest its policies are badly justified?

          1. In Brettworld, things that are inconveniently true can simply be ignored until they go away. This does not work nearly as well in the real world; objective reality does not care about what your ideology says SHOULD be true.

          2. If the government had no internal controls, they could indeed do that, Brett. But despite your beliefs, they have lots of rules to present that kind of thing.

            1. Plus, of course, it is well known that only the government can fund scientific research. Private entities have just never quite gotten the knack.

      2. Atifex, if I knew who you were, and we had power to arrange a test, I would make you a bet. The situation would be a test of what GMU can know about immunity. GMU would have to accept the Zywicki argument as valid, on the basis of his say-so. As you say, there is not proof to the contrary.

        But there would also be a peer group, composed of people with a vaccination credential. I would make you a 3-figure bet (much more if I were richer) that the result would show notably better immunity, short term, and long term, among the vaccinated.

        Why would I be so certain? Because a significant percentage on the Zywicki side would be liars, who have been falsely claiming prior Covid infection to dodge mask requirements and social distancing burdens. You can count on that.

        And there would be no practical way for GMU to sort out the liars from the others. They would have no way to investigate the claims one-by-one, and would-be liars would know that. On the other hand, asking for a valid vaccination credential is easy. Some might have counterfeits, of course, but that is much harder to accomplish than simply lying about prior Covid. So as a practical thing, the test results would show better immunity among people with vaccination credentials—pretty much regardless of the underlying science of immunity.

        More generally, what that hypothetical illustrates is that you cannot base this kind of policy totally on immunological science. You have to take into account what GMU can know, what it needs to accomplish, and the way people behave. If you do that, you understand that GMU needs to say to Zywicki, “Sorry, but we have neither the time, the resources, nor the means to vet thousands of individual claims in all their particulars. Our standard is proof of vaccination, which we can verify. Bring us that.”

          1. Low-quality people cheat. Better people convict and fine (if not imprison) the low-quality people.

        1. “But there would also be a peer group, composed of people with a vaccination credential. I would make you a 3-figure bet (much more if I were richer) that the result would show notably better immunity, short term, and long term, among the vaccinated. ”
          You would have a good chance of losing, especially if the test were exposure to the Delta and Lambda variants

          1. “You would have a good chance of losing, especially if the test were exposure to the Delta and Lambda variants”

            Why would Zywicki’s natural immunity to not-the-Delta variant be any better than the vaccination-for-not-the-Delta-variant? Either type might be effective, or might not be, based on who and what the person interacts with. Hang out with an unvaccinated crowd, and your likelihood of getting the disease is higher, objectively, than if you hang out with the vaccinated. (and both of those groups have higher infection rates than people who remain isolated.)

        2. “you cannot base this kind of policy totally on immunological science. You have to take into account what GMU can know, what it needs to accomplish”

          In other words, science has little role here it is just the will of the university administration, i.e, naked power.

          1. Don Nico, is it possible that your rhetoric goes beyond your actual opinion? Do you really intend to equate the, “will of the university administration,” to a quest for, “naked power?”

            More generally, where public policy touches on subjects which can be informed by science, then science should play a notably larger part than it typically does. Alas, there are large areas of public conduct which policy must govern, but about which science is not yet usefully informed. In those areas, politics must set the standards. There is no alternative, except governance by rationalistic fallacies (or anti-rationalistic fallacies)—which do have many vociferous advocates, of course.

            1. “More generally, where public policy touches on subjects which can be informed by science, then science should play a notably larger part than it typically does.”

              If you (or anyone else) want to ignore science, you of course have the option of withdrawing from people who still have ties to objective reality. In your home, you can make the rule that nobody has to be vaccinated for anything. But nobody else has any kind of requirement to honor your rich fantasy life where infectious diseases aren’t infectious if you are strong enough in faith.

              1. James Pollock, you quoted me, but then wrote a comment seemingly premised on a meaning opposite the one in my comment. What gives?

                Are you stumbling over my use of, “rationalistic fallacies?” To help you out, that is not a slur on reason. It is a critique of the misuse of reason by folks who are in no way rational, but have special methods of convincing themselves otherwise. For more and much better insight on that than I can provide, read Michael Oakeshott’s brilliant, “Rationalism in Politics.”

                1. ” you quoted me, but then wrote a comment seemingly premised on a meaning opposite the one in my comment.

                  “Are you stumbling over my use of […]”

                  Are you confused by the possibility of someone having a different opinion than you?

          2. It’s what I said in an earlier thread: They prefer the vaccinations for bureaucratic convenience: It just makes their lives easier than a rationally defensible policy would.

            1. Indeed, if the disease vectors would get vaccinated, it would be preferred.

      3. “Ahhh, the usual inversion of the burden of proof.”

        At least you told the truth about your tactic.
        There is considerable current evidence that not being vaccinated produces a much higher risk of carrying and spreading the disease than does being vaccinated. It is true that for some diseases, having had the disease previously confers immunity. (This is, in fact the core principle underneath vaccination in the first place). It is not true, however, that all diseases produce future immunity. Take, for example, the virus that causes chicken pox. That same virus creates shingles, and having had chicken pox does not mean that you are immune to shingles.
        Maybe, having had a case of COVID means that you are unlikely to ever again have another case of COVID. Maybe. But betting other peoples’ lives on it, on nothing more than a guess, seems like a poor policy option.

  15. I wondered what rock all the Constitutional lawyers (both practicing and in academia) had crawled under over the past 10 months or so (much less the past 5 years). We heard so much from them from 2016 until November of 2020 when it came to Presidential over-reach. Then, they all ducked their head and mumbled “Not my circus, not my clowns”, and avoided all inquiries as to whether or not Joe Biden, the “most moderate President in history” was violating the Constitution

    It’s nice to see someone in academia other than Turley stepping up and saying “maybe this isn’t a good idea, all this violating my civil rights..”

    Of course, we have “no more mean tweets” so we have that going for us, as far as it will carry us. And, those conservative Conservatives from the Lincoln Project along with Andrew Cuomo will bring us back to the center. Hey, maybe we can elect Jeb! in 2024.

  16. The late Justice Scalia was an ardent proponent of bright lines over standards. In his view, standards are innimical to Due Process. They don’t let people know where they stand. They risk Equal Protection violation, as high-status, litigious people who can afford to lawyer up can get things looked at in their favor in a way that the average person cannot dream of. They invite endless litigation

    Professor Zywicki is seeking the exact opposite of what Justice Scalia stood for. He is seeking to get a bright line thrown out in favor of a standard. He is saying bright lines are unconstitutional, we must have standarss and we must be permitted to litigate case by case.

    While I think Justice Scalia was generally wrong in thinking that the Due Process clause requires bright lines — standards are an option that a legislature has power to deem appropriate in particular situations — I also think his arguments in favor of bright lines were good enough to suggest reasons why they should not so easily be found to be forbidden by it.

    1. ” He is seeking to get a bright line thrown out in favor of a standard.”
      I don’t see that at all.
      The University could say, Okay, do a serology test. If your level of antibodies is within 20% of an average person who was vaccinated as long ago as you were infected, then you get a medical exemption. Otherwise, your choice is a vaccination or twice weekly testing, masking and distancing.
      All science-based with administrative chest-beating

      1. Don Nico, in your view, could the university say, “Our doctor will give you a serology test? Present yourself for testing at this lab at that time, so our medical staff can draw your sample?”

        If your answer to that is yes, why is that procedure, with its expense and inconvenience, a better administrative solution than just asking for proof of vaccination already done?

        Do you suppose a compelled blood draw is more rights protective than a vaccine mandate? Maybe there are arguments on both sides, but I don’t see a clear answer.

        1. The option of a blood draw is more rights protective.

          1. Brett, sure, because it protects the right to lie about your medical history, or to provide an in-cahoots doctor with a blood sample from someone else. What it will not do is reliably accomplish GMU’s perfectly legitimate objective.

            So answer the question. Is a compelled blood draw more or less protective of rights than a vaccination requirement? Show your work. As I said, I do not see a clear answer.

            1. Not seeing how being given the choice of those two options creates a problem or is not comparably enforceable.

              But yes, a blood draw is drastically less serious of an intrusion. When getting approval for any sort of medical study, one of the *easiest* risks to justify is the routine/minor risk associated with drawing blood. It’s also a well accepted part of screenings for various things…

              So it simply doesn’t compare with the more complex risk-benefit analyses of putting new medical products in your body, and not even giving individuals the dignity of being allowed to weigh that for themselves (especially when one’s individual circumstances make it a reasonably debatable matter for a given person).

              1. ” yes, a blood draw is drastically less serious of an intrusion.”

                So you don’t mind if we hook up all these leeches?

      2. That might work for Professor Zywicki’s situation. But what about the virtually inevitable next litigant for whom the new bright line doesn’t work, whose doctor is prepared to testify that e.g. the particular test is misleading and whose peculiar body chemistry requires a different test, or something like that?

        A basic and inevitable feature of bright lines is that there is virtually always a case that would be classified differently if people were entitled to a reviewer’s best judgment based on the totality of whatever evidence they can present.

        1. Intending to reply to Don Nico, not Stephen Lathrop.

  17. It’s settled science that gay man ejaculating without protection into other men’s colons spread far more disease that COVID could ever hope to.

    1. Sounds like you’re an expert.

      Or were you a participant in the trials.

    2. Not to get to far into this, but just out of curiosity, is it your position that men ejaculating into women’s colons, which happens far more frequently, doesn’t spread disease?

      In her concurring opinion in Lawrence v. Texas, Justice O’Conner said that sodomy laws could be rationally justified as a method to prevent the spread of disease. But she said that only gender-neutral sodomy laws could have this justification. In her view, laws limiting their prohibition to only homosexual sodomy, like Texas’ (and unlike the Georgia law upheld in Bowers v. Hardwick), couldn’t be justified on these grounds.

    3. “It’s settled science that gay man ejaculating without protection into other men’s colons spread far more disease that COVID could ever hope to.”

      So stop doing it.

  18. It appears that Todd’s personal immunologist happens to have made a similar claim on Tucker Carlson’s show in March:
    https://www.youtube.com/watch?v=h9zvvTCYSjg

    1. This may explain when and how a thoracic surgeon from Philadelphia became Prof. Zywicki’s personal immunologist in D.C.

  19. I wonder why professor Zywicki didn’t limit his request to exempting people who are medically-advised not to seek COVID vaccination…

  20. “I am a responsible 15-year-old. I have many hours driving vehicles around my family farm without incident. The school psychologist confirms that I am mature for my age and am more than capable of driving a car, particularly since you give licenses to every reckless 16-year-old who passes the test. Therefore, the prohibition on my obtaining my driver’s license is an unjustified infringement on my right to travel and serves no useful purpose.”

    Sorry, but every law and policy is going to be a bit over-inclusive and a bit under-inclusive. But we can’t sit around and make everyone a unique case. Especially not when we don’t know how long immunity after having Covid lasts.

    1. Perhaps if we’re dealing with rational-basis-level review. But the Jacobson case was before much of the development of caselaw around fundamental rights, tiers of scrutiny, etc…

      I think there’s a good chance that being forced to put a medical product in your body triggers “strict scrutiny” – and the associated “narrowly-tailored” standard.

      1. Jacobson is good law until the Supreme Court says it isn’t.

        And Jacobson was a police power case, not a government-as-employer case. And it involved a mandatory vaccine, not a choice between vaccination and masking/testing. If the government can require everyone to get vaccinated, then it can offer people who want to work for it that choice.

      2. “I think there’s a good chance that being forced to put a medical product in your body triggers ‘strict scrutiny’ – and the associated ‘narrowly-tailored’ standard.”

        Wanting to spread a communicable disease doesn’t put you into a protected class.

  21. The CDC has said that it’s safe to wait 90 days after natural infection, before getting the vaccine. (They used to actually *encourage* such a wait, but they don’t go that far anymore.)

    So if someone had Covid within the last 90 days, would they have a stronger argument that they should be allowed to postpone the vaccine a bit beyond the mandated-date? (After all, it wouldn’t even require any patient-specific inquiries, and the CDC is the very source that pro-mandate folks cite most heavily…)

    One might ask, what good what that do – since it would only postpone a person’s mandate by a short time anyway? But folks might still have reasons – such as hoping that in the meantime the 90 day safe harbor might be increased, or the possibility that side effects may be reduced by waiting a bit, etc.

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