W. Va. Attorney General Opines Against Vaccine Mandates, Vaccine Passport Requirements

From a West Virginia Attorney General's opinion handed down two weeks ago, but just posted on Westlaw, the conclusion:

[A] law requiring all state employees to be vaccinated or requiring all businesses to demand vaccine passports from all patrons would violate our State's constitution (as it should be properly understood) and violate both state and federal law. The same finding would follow no matter what aspect of "state" government is implicated; mandates and passport requirements imposed by counties, municipalities, and other public actors would give rise to the same legal concerns as a mandate or passport requirement imposed at the statewide level. We therefore urge any public entities to comply with such guidance and come into accordance with this opinion.

Likewise, a private employer's mandate or vaccine-passport requirement may violate federal and state anti-discrimination laws if it does not, at a minimum, provide for appropriate exceptions for those with religious-or disability-based objections.

Additional steps can and should be taken by the Legislature to ensure that individual liberty interests are protected. The Legislature could:

• Preclude vaccine mandates for some or all employees;
• Bar governments from imposing vaccine passport requirements or bar such passport requirements outright;
• Ensure that employment-related policies contain, at a minimum, exceptions for those with religious objections and other objections, such as those of a medical or conscientious nature; and/or
• Implement a religious or conscientious objector exception for compulsory school vaccinations.

"In view of the broad notions of individual liberty and security which underlie our sense of freedom, potent constraints on overreaching governmental intrusions are appropriate." As many other states have already recognized, an anti-passport, anti-mandate law could helpfully serve as one such constraint—all at a time when individual liberty has too often fallen by the wayside. We strongly implore the Legislature to act.

And here's more analysis; I would take a different view myself on many of these issues (I think broad vaccine mandates and vaccine passport rules would be constitutional and wouldn't violate federal law, so long as they have suitable medical exemptions), but I thought this was interesting and likely to be important, so I'm passing it along:

[I.] A Blanket Law Requiring All State Employees To Obtain the COVID-19 Vaccine Contravenes the West Virginia Constitution and Conflicts With Other State and Federal Laws.

No West Virginia authority specifically addresses whether, under our constitution, a state employer can mandate that an employee be vaccinated as a condition of employment. Our analysis concludes, however, that such a mandate should be held unconstitutional.

Jacobson v. Massachusetts (1905) alone canot provide the answer. As one federal court recognized, "Jacobson predated the modern constitutional jurisprudence of tiers of scrutiny, was decided before the First Amendment was incorporated against the states, and did not address the free exercise of religion." Agudath Israel of Am. v. Cuomo (2d Cir. 2020). Decided the same year as the now-repudiated decision in Lochner v. New York (1905), the case seems out of step with our country's present understanding of the Bill of Rights. Extending it too far could lead to disastrous results— as demonstrated by the U.S. Supreme Court's use of Jacobson to justify forced sterilization in one infamous case. See Buck v. Bell (1927) (citing Jacobson and holding: "The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.").

If a court were to apply the so-called "autonomy cases" to any mandate case, then the court could apply strict scrutiny to the challenged mandate. Rather than relying on the permissive Jacobson standard, strict scrutiny focuses more on the individual liberty and autonomy interests at stake. "[I]t is a mistake to take language in Jacobson as the last word on what the Constitution allows public officials to do during the COVID-19 pandemic." Calvary Chapel Dayton Valley v. Sisolak (2020) (Alito, J., dissenting from denial of application for injunctive relief). And "Jacobson hardly supports cutting the Constitution loose during a pandemic." Roman Cath. Diocese of Brooklyn v. Cuomo (Gorsuch, J., concurring). But in many respects, some have incorrectly read it to do just that. See id. ("Why have some mistaken this Court's modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic? … [W]e may not shelter in place when the Constitution is under attack. Things never go well when we do."). This analysis suggests that any state-based vaccine-related mandate should be subject to more stringent scrutiny than Jacobson applied.

A broad state-employee mandate—especially one without exceptions—would not survive strict scrutiny, if for no other reason than the mandate's overbreadth and lack of tailoring. "Stemming the spread of COVID-19 is unquestionably a compelling interest." Yet a mandate for all employees to be vaccinated is not narrowly tailored to achieve that interest. Most obviously, "there are many other less restrictive rules that could be adopted to minimize the risk." Remote work, social distancing, frequent testing, altered shifts, and similar mechanisms are now familiar tools to limit spread of COVID-19; they stem the spread with less of an imposition on bodily integrity. Public information campaigns and the similar initiatives in place serve the State's apparent interest in encouraging its employees to obtain the vaccine. At least without legitimate legislative findings describing why those other methods are insufficient, a broad mandate would likely fail constitutional review.

Also, a mandate fully embracing those who have had COVID-19—and who therefore may possess some natural immunity already—may be overbroad for the same reasons. See United States v. Arencibia (D. Minn. 2021) (noting how an individual's prior infection with COVID-19 "provide[d] him with some natural immunity and lessen[[ed] his risk of re-infection"). Although data is still developing, research suggests that those with natural immunity may enjoy the same—or even greater— levels of protection that those who are vaccinated. See, e.g., Faye Flam, Vaccines Versus Covid-19: The Great Immunity Debate, WASH. POST (Sept. 7, 2021), available at https://wapo.st/3lcyyP6 ("People who had two Pfizer shots were about 27 times more likely to get symptomatic Covid-19 and eight times more likely to be hospitalized than were people who'd been infected."). Insisting that persons who already enjoy a high level of protection against the disease to obtain an additional level of protection is not the least restrictive means of achieving the State's interest in advancing public health. See, e.g., Chris Burt, George Mason Relents, Grants COVID-19 Medical Exemption to Professor, University Business (Aug. 17, 2021), available at https://bit.ly/2X8Ez7z (describing settlement of litigation brought by law professor with natural immunity against his employer).

If the State were to proceed with a mandate anyway, then the burden would fall on the State to show why the alternative mitigation measures or a more circumscribed mandate would not be as effective as a broader, universal mandate for state employees. Carrying that burden will be difficult for the State to do, especially if new variants challenge the effectiveness of vaccines, more individuals acquire long-lasting natural immunity, and state entities become used to life with limited mitigation measures in place.

In summary, a mandate that all state employees obtain a COVID-19 vaccine as a condition of employment offends the constitutional right to bodily integrity and personal medical decision-making.

Beyond the bodily-integrity issue, a wide-ranging state-employee mandate lacking any religious exemption would offend our constitution's guarantee of religious freedom. "Texts and decisions of appellate courts dealing with the fundamental nature of religious liberty are almost without limit." As the U.S. Supreme Court explained long ago:

"We are a religious people whose institutions presuppose a Supreme Being. … [The State may] respect[] the religious nature of our people and accommodate[] the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe…. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence."

Zorach v. Clauson (1952).

Employment Division v. Smith (1990) stands apart from principles like these, and it does not adequately protect the free exercise of religion. Given the direction of the Court, however, it is conceivable, if not likely, that the Smith test will be buried soon—at least in this State. And once Smith is gone, the strict-scrutiny standard should apply in any free-exercise challenge, too. Once that happens, the tailoring problems already described would defeat the law— particularly as religious objectors would represent only a subset of state employees.

Even if the test in Smith were to survive, two other significant problems exist for a mandate in the religious sphere. For one thing, if a mandate provides for a medical exemption (as most every vaccination mandate now in place does), then that mandate should no longer be called "generally applicable." At the same time, exempting religious objectors would not necessarily defeat the objective of reaching a high enough level of immunization to achieve herd immunity if national rates hold. See Seither R. McGill, et al., Vaccination Coverage with Selected Vaccines and Exemption Rates Among Children in Kindergarten - United States, 2019-20 School Year, 70 MMWR MORB. MORTAL. W'KLY REP. 75 (2021) (showing an average non-medical exemption rate of 2.5% from kindergarten compulsory vaccinations). For another thing, this situation appears to present a classic "hybrid rights" case. Free exercise is at stake, but so, too, is bodily integrity. We cannot say with certainty whether the Supreme Court of Appeals of West Virginia would adopt the "hybrid rights" model that has so divided federal courts. But given that the Court has never spoken to the issue, it is at least plausible that the Court may embrace it.

Accordingly, if the State or state actor does not offer any religious exemption to a mandate that State employees be vaccinated, then such a mandate violates the West Virginia Constitution's guarantee of religious freedom.

Of course, the problems of a state-employee vaccine mandate go beyond the aforementioned analysis; additional challenges to such a mandate are likely to arise under federal and state law.

First, a mandate requiring vaccination under penalty of dismissal could be subject to a claim of disability discrimination. If an employee cannot get a COVID-19 vaccine because of a disability, and the State then dismisses him for it, then that dismissal could violate both the WVHRA and the ADA. An employer could find it hard to establish a "direct threat" on these facts given that many employees in this State have worked in the office without mandatory vaccines for several months. Even if the State can establish that a particular employee's unvaccinated status poses a "direct threat," then reasonable accommodations—such as the mitigation measures described above—would still seem to be available to reduce or eliminate that threat. For this reason, the Equal Employment Opportunity Commission ("EEOC") counsels that "an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis." EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws § K.5 (updated May 28, 2021), available at https://bit.ly/3zQ0COB ("EEOC Guidance").

Second, the State could unwittingly engage in religious discrimination if it requires all employees to be vaccinated without exception. An employee objecting to a vaccine based on bona fide religious grounds would be entitled to a reasonable accommodation. And any religious belief or practice would be enough to compel the employer to offer those accommodations, so long as the cost is insubstantial to the employer. The employee cannot insist on any specific form of accommodation. But where an employee raises a valid religious objection, and some reasonable accommodation is available, that accommodation must be offered.

Third, the State could face a disparate-impact discrimination claim. Given that disparities in vaccination rates among racial and ethnic populations have persisted, the State could face disparate-impact claims from members of those protected classes should a mandate be implemented. See Nambi Ndugga, Latest Data on COVID-19 Vaccinations by Race/Ethnicity, Kaiser Family Foundation (Sept. 9, 2021), available at https://bit.ly/2Vp7542 (providing data concerning disparities among vaccination rates); see also EEOC Guidance at K.1 ("[E]mployers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact. … [B]ecause some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.").

All together, these other state and federal laws confirm that an unmitigated law mandating that all state employees be vaccinated is ill advised and unlawful.

 

[II.] A Blanket Law Requiring All Public or Private Establishments To Demand That Patrons Present a "Vaccine Passport" Before Entry Is Unconstitutional Under the West Virginia Constitution and Conflicts with Other State and Federal Laws….

[A] requirement that a person show a vaccine passport to enter "either public or private establishments throughout the state" is a legal step too far. Such a far-reaching requirement effectively equals banishment from society, preventing a person from participating in even the most basic activities of society. It is one thing to impair a person's right to social association—a right that has never been viewed as fundamental. Although courts have not yet addressed the question, it is quite another matter to insist on total isolation for the unvaccinated—an outcome that would seem to inevitably result from the lack of a passport.

A state-enforced, total prohibition on entry to public and private establishments could significantly impair the exercise of many fundamental rights—the right to worship, speak, assemble, petition, vote, travel, and more. And it should make no difference that the ultimate actor could well be a private entity, as your hypothetical contemplates that the State will have compelled the private entity to demand a passport in the first place.

These substantial impairments—whether examined through the lens of due process, equal protection, or the First Amendment—would, in our view, trigger strict scrutiny. And as already detailed, a law like this would struggle to meet the narrow-tailoring aspect of the strict-scrutiny analysis, especially if other mitigation methods have been used to good effect for some time.

Further, as with the hypothetical state-employee mandate, this universal vaccine passport would struggle to fit with other state and federal anti-discrimination statutes. For instance, a private business could find itself facing an ADA or WVHRA claim if it were compelled to bar an unvaccinated person from its premises and that person was unable to obtain the vaccine because of a disability. We recognize that the Department of Justice (the agency that enforces ADA Titles II and III) has not yet issued guidance on this issue. But we can imagine many troubling scenarios. For example, giving an unvaccinated-because-of-disability patron the chance to order takeout, while denying him the chance to eat in, might deny the guest a "like experience" and thus contravene the statute. Ultimately, the business would need to show that the vaccination "passport" requirement was an essential eligibility requirement justified by a patron's "direct threat." That analysis would track the similar rationale described above in the employment context.

Overall, any passport requirement would, in our view, present significant additional problems under the West Virginia Constitution—as well as state and federal law.

 

[III.] A Private Entity's Choice to Require Employee Vaccination or Request Showing of a Vaccine Passport Without Exceptions Already Violates Federal and State Law, But the Legislature Could—and Should—Pass Additional Laws Banning Vaccine Mandates or Vaccine Passports.

While a private entity is not, as a general matter, subject to the same constitutional duties or restrictions as public entities, imposition of a vaccine mandate without exception may still give rise to some legal liability.

The anti-discrimination laws described above, including Title II, Title VII, the ADA, and the WVHRA, would still apply to both a private vaccine mandate and a request for a passport in a private business subject to these statutes. Thus, at a minimum, even private employers need to provide exceptions for religious-and disability-based objections for their employees.

In short, state and federal law may prevent private entities from imposing a blanket employee vaccination mandate.

To the extent that, as discussed above, state law does not expressly limit private entities from imposing vaccine-related initiatives, we believe this area is one ripe for legislative action— at a minimum, to provide for express religious or health exceptions to any such mandate. As a general matter, the West Virginia Constitution would not prevent the Legislature from banning both vaccine mandates (imposed by public or private entities) and vaccine mandates (imposed by the same). Even a broad ban—such as an amendment to the WVHRA like the Montana law— would not give rise to significant constitutional concerns, although it would impact the traditional framework for analyzing current anti-discrimination laws.

While we believe that such a restriction or model could be defended, we acknowledge that a federal court in Florida has enjoined enforcement of that State's vaccine-passport bans, reasoning that they violate the First Amendment and substantially burden interstate commerce. See Norwegian Cruise Line Holdings, Ltd. v. Rivkees (S.D. Fla. Aug. 8, 2021). Among other things, the court did not believe that Florida had identified any compelling state interest that the law advanced. The court thought the law (1) did not protect medical privacy in any provable way; (2) did not stop other ways to invade a patron's privacy, like simply asking about vaccine status orally; (3) did not prohibit private entities from discriminating against unvaccinated people; and (4) did not regulate employers. But in contrast to the view of the Florida court, West Virginia's interest in preserving the liberty of its citizens is real. A conscientious Legislature can address these under-and over-inclusiveness issues addressed in the Florida district court's opinions through careful drafting.

There should be no reason for hesitation in passing a ban on vaccine mandates or passport requirements or, at a minimum, requiring religious or medical exemptions in such requirements.

Comments

[Stephen Lathrop]

The notion to apply strict scrutiny to public health measures against an emergency which threatens death to an appreciable fraction of everyone (which Covid does not), is a formula to squander the legitimacy of the courts.

[Aladdin's Carpet]

That doesn't follow.

The fact that it is a pandemic does not mean dont apply strict scrutiny, the fact that it is a pandemic means that its more likely to survive strict scrutiny.

Now granted, I view the scrutiny system as kinda dumb, but I think that is how that is supposed to work.

[Stephen Lathrop]

AC, for a contrary view, read Justice Jackson's dissent in Korematsu. If you can make the jump from military emergency to public health emergency, it is a wise dissent, and right on point.

[DaivdBehar]

Opinion needed. Are small benefits considered a real medical benefit? I view a 30% difference as a minimum for clinically meaningful, not an 11% one.

Here is the relevance. I consider masks a type of physical restraint. If there is no medical benefit, a school mask mandate would be child physical abuse. I am a mandated reporter, subject to a $1000 fine for failing to report abuse.

https://www.wionews.com/world/cdc-study-schools-with-mask-mandates-likely-to-have-fewer-outbreaks-416046

[Armchair Lawyer]

It doesn't follow Stephen,

Let's say, for example, Trump had decided to cancel the 2020 Presidential election, because of the risk of further spreading COVID. It was simply too great of a public health risk, against a disease which threatened death to everyone.

I guarantee you would have be up in arms, demanding that the courts reverse such an "unconstitutional" order, and that any such order should be have strict strutiny applied to it. And if the courts overruled Trump's order, you would have said it was entirely legitimate and right.

[Josh R]

Assuming for the sake of argument that rational-basis review applies to public health measures, Trump does not have the authority to cancel an election.

[Armchair Lawyer]

Sure he does. You know, if we're going by liberal logic. Section 264 of the federal code.

"The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession... ...and other measures, as in his judgment may be necessary"

Is it GROSS overreach? Sure. But so was the Eviction moratorium. And if in the SG and Secretary's opinion (informed of by Trump of course) the election HAD to be cancelled, to prevent spread of communicable diseases.... Well....

And you don't want to oppose a measure that helps to prevent the spread of COVID, do you? That would be wrong and evil. How could you?

[Josh R]

Congress does not have the power to delay an election and therefore this statute cannot be the authority for doing so.

[Josh R]

Oops. I stand correct that Congress has the power to choose the time of an election. However, it has done so through 2 U.S. Code § 7. 42 U.S. Code § 264 authorizes regulations. Delaying an election is not a regulation.

[Armchair Lawyer]

It could be an effective regulation, pretty easily.

"Due to the current emergency, congregations including elections and election counting is deemed too dangerous"

Simple. Done.

[Josh R]

You might get away with delaying the counting as a regulation of the manner of holding an election. But if the delay pushes back the transfer of power beyond what the Constitution requires, I would expect greater than rational-basis review to apply

[Josh R]

I take back my claim that delaying the counting is a regulation. Per Alabama Association of Realtors, et al. v. Department of Health and Human Services (the eviction moratorium case), any regulation of an election under 42 U.S. Code § 264 is not statutorily permitted.

Getting back to Lathrop's comment, it would be wrong to apply strict scrutiny to statutorily authorized public health measures against COVID except when a fundamental right is at stake. So, even if I am wrong about the reach of 42 U.S. Code § 264, voting and the transfer of power is a fundamental right. Any way you look at it (statutory authority or infringement of a fundamental right), canceling an election doesn't pass muster.

[Armchair Lawyer]

A few points...

1. I don't think delaying the election would be legal at all. But....

2. Relying on Alabama Association of Realtors, et al. v. Department of Health and Human Services to justify why delaying an election would be illegal, but that the Housing moratorium is fine is nonsensical. The entire decision was about the housing moratorium being illegal. That very decision is what Stephen is arguing against.

3. Fundamental rights that are infringed upon...Bodily integrity, freedom of movement, freedom of religion...and more should be treated under strict scrutiny...even if it's a public health emergency.

[Josh R]

The eviction moratorium isn't fine because Congress did not authorize it. Stephen was arguing against using strict scrutiny, assuming Congress did authorize it.

I agree with your last point with the proviso we might differ on the scope of what is a fundamental right. Steve's argument still holds for the vast majority of cases not involving fundamental rights.

[Stephen Lathrop]

Armchair, nonsense. I would never demand that. I would demand the proper remedy, Trump's immediate impeachment and removal from office.

[Armchair Lawyer]

Why? He's just helping to stop a public health emergency.... Elections gather lots of people in an area. You could potententially transmit diseases in such a case. That would be very bad. So, the election MUST be halted...to prevent the transmission...

Or are SOME measures to stop a public health emergency too extreme?

Perhaps you start to see the issue.

[Stephen Lathrop]

Armchair, In general, a hypothetical built on outright lying is unpersuasive.

[Armchair Lawyer]

"Outright lying"?

How so?

Are you going to deny that an election brings a large number of people together into tighter confines than having them isolate in their home?

Again, the point of this entire exercise is to demonstrate that SOME measures that would reduce the risk of infection, you believe would be too extreme to the current environment. And should be deemed unconstitutional.

If you can't admit that, then....

[Stephen Lathrop]

I can meet any argument you have, and beat them all. But who cares? You are lying about your intent. You want to own the libs, or justify Trump, or deny an insurrection. Anyone who follows your commentary can see that. I don't have the time.

[Armchair Lawyer]

If by "owning the libs" you mean "Demonstrating that your original argument is extreme and cannot be defended logically"...

Then sure.

If you can't defend your argument, then you may withdraw it.

[Stephen Lathrop]

Sure Armchair, logic. That's my No. 1 tool for all arguments with folks who make up, "facts." Sorry buddy, there is not time.

[Rev. Arthur L. Kirkland]

STATES RANKED BY EDUCATIONAL ATTAINMENT
(52, with territories)

High school diploma
West Virginia 44

Undergraduate degree
West Virginia 52

Graduate degree
West Virginia 50

Mr. Morrisey filed a clownish lawsuit claiming election fraud in an effort to flatter Donald Trump. What a dope, a loser, and a good fit with West Virginia Republicans.

[Michael Ejercito]

Just like Chicago?

[Armchair Lawyer]

Now do the same by ethnic group RAK....

And let me know the difference in your thoughts.

[NYC2AZ]

I wonder what level of education the West Virginia AG has? A JD perhaps?

[Rev. Arthur L. Kirkland]

He does, but he strenuously dampens its value and consequence by pandering to West Virginia Republicans. This guy moved from a modern, successful community to try a right-wing political career among the hoopies.

[DaivdBehar]

Arite. White, male, Boomer. Replace with a diverse.

[MollyGodiva]

Social Distancing? Nope
Mask? Nope
Vaccines? Nope
It is clear that there is no covid prevention measure that Republicans will accept. Thus it is on the rest of us to not care about their feelings. They are intentionally spreading a deadly virus and we don't need to put up with that.

[bevis the lumberjack]

I mean, the Democrats wouldn’t stay home from riots. And dissed the vaccine until they were comfortable that Trump wouldn’t get credit for it.

Despite your zealotry, there are no clean hands here. All of our political “elite” have politicized the hell out of this.

[MollyGodiva]

One side is trying to stop the virus and the other is trying to spread it.

[MyWag13]

Sadly ..... Hear, Hear !!!

[Life of Brian]

One side is trying to stop the virus

Over/under on how long it will take that side to snap out of its hubris-laced fantasy?

[bevis the lumberjack]

“Trying to spread it”

Sometimes I think you’re clinically delusional.

Going out with 50,000 people in a shouting mass to burn shit down is every bit trying to spread it.

If you ever had a balanced political thought you’d frighten yourself to death.

[MollyGodiva]

A few days of outdoor protests by a relatively small number of people does not compare to a year and a half of the bulk of Republicans opposing every covid prevention measure and actively spreading misinformation.

[Bruce Hayden]

Yeh - because they don’t work. Keep virtue signaling with your stupid face diapers though, and we will all avoid you. Win/win on both sides.

[bevis the lumberjack]

Are you as judgmental toward poor blacks and rural poor people as you are toward Republicans? I haven’t seen you throwing your bullshit at black people. After all, by your own definition, they’re trying to spread the virus. Bunch of assholes, huh?

[MollyGodiva]

1. I have criticized them.
2. There are not a large group of AA politicians actively promoting pro-covid polices and spreading misinformation like the Rs.

[Life of Brian]

There are not a large group of AA politicians actively promoting pro-covid polices and spreading misinformation like the Rs.

So respiratory viruses now respect intent? Almost as amazing as how they only target people walking between tables of restaurants and spare the seated.

[grb]

Today's Right has made a focused & concerted effort to reinvent itself as the pro-covid party. Take their newly-found anti-vaxx obsession as one example. Pre-pandemic, that nonsense was pretty evenly distributed across the ideological spectrum. It took coordinated & disciplined messaging to put today’s conservative movement on a war footing against basic common sense.

It started back with claims the pandemic didn’t exist, its effects were exaggerated, the statistics were lies, every measure against the disease was tyranny, the medical experts were Bond-grade villains, and every quack-cure was a miracle being hidden from us.

Trump pursued every one of these pro-disease tactics while president and was soon joined by sycophants & copycats, then backed by the Right's pet media & hive-mind propaganda machine. It's a sad irony this same populist claptrap was then turned against the very vaccines Trump help to create.

Not that he cares, of course. You've heard a few tepid pro-vaccine statements from DJT, but clearly he worries more about pandering to the ignorance of his political base than their well-being or health.

[Bruce Hayden]

Masks are, for the most part stupid. They have not been shown to help (though pro maskers seem attracted to theoretical models that suggest that they do help. Most such models though depend on droplet transmission, when aerosol transmission appears most common. And the masks used, at best, might be useful against droplet dispersal, and their holes are orders of magnitude too big to stop aerosols. And that doesn’t even take into account that most people don’t wear masks properly, and many masks are nothing more than a couple layers of fabric.

The COVID-19 “vaccines” available are novel, experimental, gene therapies, available only through EUAs, and not approved by the FDA. Their EUAs require informed consent by their terms, as well as by federal regulations. Thus, forcing vaccinations violates the vaccines’ EUAs.

Moreover, COVID-19’s lethality is highly age and health based. Thus, fewer than 20 military service members, out of roughly 1 1/2 million, have died from the virus, due, most likely, to their age and being in overall good shape (and thus with almost no comorbidities). That is lower than some training accidents, and even some aircraft accidents. The very low numbers of those under 18 who died are even more dramatic. And almost all of those who did die in that demographic exhibited significant comorbidities - notably obesity. And that doesn’t even address the problem of side effects. It is very likely that more people have died from heart problems shortly after being vaccinated, than active military were killed by the virus. Oh, and the mandates invariably require vaccinations of survivors of the virus, despite surviving the virus giving almost complete protection, while the vaccines only provide limited protection.

[Aladdin's Carpet]

"The COVID-19 “vaccines” available are novel, experimental, gene therapies"

No, its not. It uses mRNA to create a spike protein. Gene therapy modifies your genes. This does not do that.

"available only through EUAs, and not approved by the FDA."

Not true.

"EUAs require informed consent by their terms, as well as by federal regulations."

Not true, also informed consent does not mean what you think it means.

"And almost all of those who did die in that demographic exhibited significant comorbidities – notably obesity"

Well its a good think that most Americans eat healthy and work out and don't eat meat or if they do they just eat that and refrain from carbs. Really lucky how obesity isn't a major problem as is. And, frankly, I notice obesity is a much bigger issue in more rural, conservative, areas. Just an observation.

"despite surviving the virus giving almost complete protection, while the vaccines only provide limited protection"

Not how that works. Breakthrough infections from prior immunity is far more common than from vaccines, and furthermore, getting the shot does not dimish prior immunity from getting covid. It enhances it.

"It is very likely that more people have died from heart problems shortly after being vaccinated, than active military were killed by the virus"

I very much doubt this also it is a very stupid comparison, by your own admission.

Are you an active duty military person in top shape?

[Michael Ejercito]

Well its a good think that most Americans eat healthy and work out and don’t eat meat or if they do they just eat that and refrain from carbs. Really lucky how obesity isn’t a major problem as is. And, frankly, I notice obesity is a much bigger issue in more rural, conservative, areas. Just an observation.

This is why most (but far from all) Americans need or needed the vaccine.

If obesity rates were half of what they are now, most would not need the vaccine.

[AtR]

The fear of "gene modification" relates to the possibility of reverse-transcription: https://pubmed.ncbi.nlm.nih.gov/33330870/

[David Nieporent]

Not a single person talking about "gene therapy" in the context of the mRNA vaccines has even heard of "reverse transcription," let alone can spell it. (And of course that link has nothing whatsoever to do with the vaccines.) The fear relates to pro-disease loons throwing FUD at the wall in a desperate attempt to justify their Pwn The Liberals arguments.

[M L]

Your comment is conclusively refuted by the post you replied to.

Aside from that, I just did a search out of curiosity (not using Google of course) and yes, this concept is all over the vaccine skeptics' media - which is usually random websites and thousands of videos on BitChute. I don't follow this sort of thing at all and have no comment on it, but it's there. For example, here's just one of the search results. https://sarahwestall.com/could-mrna-vaccines-permanently-alter-dna-recent-science-suggests-they-might/

[M L]

As for what is or isn't "gene therapy" and whether gene modification is required, as I recall Forbes reported scientists suggesting there wasn't any bright line answer but that the understood operation of these vaccines isn't what is "typically" referred to as gene therapy.

[Michael P]

That's talking -- but really speculating, in that they describe mechanisms but no actual in vivo cases -- about the actual virus causing reverse transcription. It's a preprint that was apparently never published. For more details about why that isn't plausible, see, for example, https://www.chop.edu/news/news-views-3-questions-you-will-get-about-new-mrna-vaccines

[Life of Brian]

Breakthrough infections from prior immunity is far more common than from vaccines,

Have a cite for that? The data out of Israel this summer was at least 6:1 in the other direction.

[Tom for equal rights]

The CDC is making that claim with the flawed Kentucky study. The CDC has not updated their recommendation for the Israeli study.

Which shows how honest the CDC has been.

[David Nieporent]

It kind of shows how honest you haven't been. The. Israeli. Study. Has. Not. Been. Peer. Reviewed.

[Life of Brian]

The. Israeli. Study. Has. Not. Been. Peer. Reviewed.

Please. The Kentucky "study" was just a "report" published in the CDC's weekly rag.

Seems a bit less than honest to suggest otherwise.

[subpatre]

There is no "Israeli Study", with or without emphatic periods. The only 'study' is the Israeli's finding out the mRNA vaccines let a lot of people get sick with covid. Hence their call for a 3rd and possibly fourth booster.

Make no mistake, the mRNAs do a good job reducing the incidence and severity of the disease. But the expectation of 'immunity' is false.

Status_________Population_8.8m___Death__Rate/mo
Not Vaccinate 17% = 1,500,367 322 0.021%
FullVaccinate 81% = 7,148,851 381 0.005%

[Tom for equal rights]

Alladin's coment - "Not how that works. Breakthrough infections from prior immunity is far more common than from vaccines, and furthermore, getting the shot does not dimish prior immunity from getting covid. It enhances it."

The only study supporting greater breakthrough infections with immunity from prior covid infection vs vaccine immunity is the Kentucky study which is deeply flawed. The Israeli study is vastly more comprehensive without the flaws.

[Don Nico]

There is little to no statistical evidence that obesity or BMI is a determinative co-factor in any region of the world.
“Risk Factors of SARS-CoV-2 Infections: A Global Epidemiological
JMIRx Med. 2021 Aug 26;2(3):e28843. doi: 10.2196/28843.

[IamtheBruce]

"I notice obesity is a much bigger issue in more rural, conservative, areas. Just an observation." Your observation differs significantly from mine. I'm sure it's a result of where we each live. Guess the ethnicity of every obese parent and child at a youth soccer game I attended this weekend in Southern California. Not likely the same as the one in your imaginary "observation." My heart broke for the kids I saw who looked to be over 100lbs on a girls U10 soccer team, and for their siblings on the sidelines with similar body compositions. And this area is neither rural nor conservative.

[Alpheus W Drinkwater]

"Masks are, for the most part stupid..."

Whether or not that is true, it has absolutely nothing to do with the topic at hand, which is whether mask mandates violate the constitution and/or existing statutes. And I'm guessing no one here actually cares about your opinion about mask efficacy. Other than that, great comment.

[Dan Schiavetta]

“Masks are, for the most part stupid…”

Why do doctors and nurses in the operating room wear masks? Is it because they’re stupid?

[Tempe Jeff]

Maybe, they don't want to cough/sneeze into open wounds? Just a crazy idea...

[A nerdy Fred]

Anyone who thinks masks have no effect should be called on to explain this incident:
https://abcnews.go.com/US/covid-19-cases-tied-missouri-hair-salon-exposure/story?id=71140134
Two hair stylists went to work with COVID and stood in close proximity to 140 customers. But they were masked. Contact tracers found zero cases among the customers.

[Toranth]

Surgical masks are great for preventing things like hair and spit from entering open wounds. They do jack for airborne viruses.

Respirators - N95 or better quality - provide protection from airborne viruses like SARS-1 or -2... when fitted for an airtight seal. These are what doctors and nurses wear when treating COVID patients in places where the transmission is a concern. You can tell because of the bruises and indentations on the faces from the respirators.

That face diaper people are using? It does nothing. No statistical significance. And we've known this for decades, since before SARS-1 even. Mask mandates for anything less than N95 respirators are nothing but health theater, worse than the TSA.

[Dan Schiavetta]

“Surgical masks are great for preventing things like hair and spit from entering open wounds. They do jack for airborne viruses.“

Not a med school graduate, I see.

[Michael Ejercito]

With a vaccine, there is no need for prevention measures.

Those among us who have one or more aggravating risk factors can consult with a physician about being vaccinated.

[MollyGodiva]

"With a vaccine, there is no need for prevention measures."
That is a lie. The vaccine is 95% effective, not 100%. Also there are many who legitimately can not get vaccinated. And also we are sick of paying for medical care for those who refused to get vaccinated.

[Michael Ejercito]

Are you also sick of paying for medical care for the obese?

Are you also sick of paying for medical care for violent felons?

[bevis the lumberjack]

How about reckless drivers? How about fishermen and lumberjacks? Take a dangerous job then don’t expect Molly to help you out.

Today word got out that the NBA players told their union negotiators that a vaccine requirement was a non-starter. Lebron James is just another Republican wanting to spread the virus.

In Molly’s world there is no nuance. She simply wants to believe that Her Team is morally superior to Not Her Team.

[Aladdin's Carpet]

"How about reckless drivers? How about fishermen and lumberjacks? Take a dangerous job then don’t expect Molly to help you out."

I dont. I dont know if anyone else does. This line of argument is repeated ad nauseum with no self awareness ... like, did you support Obamacare? I sure as hell didn't. Didn't Obamacare lead to this exact subsidization you are now demanding from everyone else?

[bevis the lumberjack]

I didn’t care either way about Obamacare. The subsidization has been happening since long before then. Medicaid? Medicare? County run ERs that can’t by law turn patients away?

Subsidization is an integral part of our health care system at this point, whether you and I like it or whether we don’t. Not a damn thing I can do about it.

My objection is people like Molly demanding that sick or injured people be denied care due to choices those people made. Turns out the side proclaiming themselves to be tolerant and inclusive are actually quite inhumane to people in their outgroup, which in this case is predominantly poor folks.

[MollyGodiva]

If there were an inexpensive shot that would protect the obese, or protect from drunk drivers, or any other high risk group, then yes, I would be royally pissed to pay for care for those who did not get protected.

[bevis the lumberjack]

Tell us about your bad health habits Molly. We want to be sure you don’t get treatment for problems that they ultimately cause.

You don’t truly trust the vaccines to protect you, otherwise you wouldn’t be so afraid as to demanding people be denied medical care.

I wish people would get vaccinated too, but I trust my vaccination to protect me. And I’m not political so I don’t have a subhuman Other Team to hate. That’s why I don’t get too worked up about it.

But I’ll say this - your attitude toward this demonstrates clearly why we don’t want single payer healthcare run by your team. Cross the wrong line and we’re SOL.

[Michael Ejercito]

Obesity could be avoided by diet and exercise.

Drunk driving could be avoided by...not driving drunk.

[Tom for equal rights]

Molly's comment - "If there were an inexpensive shot that would protect the obese, or protect from drunk drivers, or any other high risk group, then yes, I would be royally pissed to pay for care for those who did not get protected."

Molly - under the progressives plan - it would be free health care so you wouldnt have to pay for it.

[Tom for equal rights]

pfizer vaccine effectiveness is closer to 70% for the first 6 months and declining after that point.

Natural immunity from an actual infection is much stronger and longer lasting. See the comprehensive Israeli study.

[Don Nico]

"That is a lie. "
Molly,
I have commented before that your off-hand use of "That is a lie. "
is counterproductive. You actually don't know if the person is lying. Moreover, you convert a matter of fact to a personal attack
What we do know is that the person is wrong.
Speak accuratly and you might be believed.

[subpatre]

"95% effective" at what exactly? Stop reading CDC/pharma blurbs and look around. The mRNA vaccines are proving to be 24% effective in preventing infection, and sharply reduce the severity of the cases who do catch covid.

'And also we are sick of paying for medical care for those who refused to get vaccinated.' Now do the overweight, gays, cab-drivers, diabetics, farmers and all those who create physical products. Then look at who or what you've become.

[Don Nico]

"intentionally spreading a deadly virus "
Such foolish comments render you completely non-credible.
They may be impeding control of the virus, but that is not what you proclaim.

[bernard11]

Don,

Would you say they are intentionally impeding control of the virus?

[Don Nico]

Bernard,
I would say that of many and I would say "they are impeding control of the virus" for all.

[Tom for equal rights]

Molly - I happen to be on the other team.

Most everyone I know on my team
agrees that social distancing works
knows that masks are of little benefit
agrees that vaccines are highly recommended for the vunerable over age 50 plus those with health issues.
Agrees that children will develop much better immunity from that actual infection without the risks that the older population incurs

In sum - the Canadian model for the old and unhealthy and the Sweden model for the young.

[Don Nico]

Distancing certainly works, when combined with good ventilation it works even better. And I suspect (I can't prove with solid data) that the combination of distance and ventilation work much better than masking ever can unless you go to the whole body suits of Bio-hazard level IV labs

[Martinned]

I'll admit, I don't know a lot about West Virginia, other than that it became a state because it didn't want to join the Confederacy with the rest of Virginia. Is it a state that is well known for going the extra mile to avoid disability discrimination and (disparate-impact) racial discrimination?

[Armchair Lawyer]

It's a state in the Appalachian Mountains, with a history of independence. A lot of small towns and country area, with a history of coal mining and rural farming. It's go a long labor history, but on the racial discrimination front, it's a very "white" state, so not much there.

[Rev. Arthur L. Kirkland]

Not much racism in West Virginia?

Where does the Volokh Conspiracy find these commenters? Does it place ads at Newsmax, Hot Air, FreeRepublic, One America News, Gateway Pundit, Instapundit, and Stormfront?

[A nerdy Fred]

My late mother spent her formative years in the Deep South in the 40s and 50s.

When she moved to West Virginia, she was shocked at the level of racism there.

[Stephen Lathrop]

One striking thing to notice about West Virginia is how close it is to Washington, D.C., and how utterly unlike each other those places are. There can be few places in the world where the cultural contrast afforded by a drive of little more than an hour is so extreme. One thing that suggests is that a lot of effort by West Virginians goes into maintaining that contrast. Their cultural and economic differences have been deliberately chosen and fiercely defended. How wise it has been to do that is another question.

[MyWag13]

[Search domain oeps.wv.gov] https://oeps.wv.gov › immunizations › Pages › default.aspx
The mission of the West Virginia Division of Immunization Services (WVDIS) is to prevent and control vaccine-preventable diseases among the children, adolescents and adults of West Virginia. WVDIS administers the Vaccines for Children (VFC) program that provides free vaccines to eligible children.

[Eric VonSalzen]

I've had 3 shots (Pfizer), and if they come up with a 4th one I'd probably take that. I wear a mask where requested or required. I'm a "senior citizen" and have some health issues. If you asked me whether you should be vaccinated, I'd say Yes unless there was a good reason not to. I don't understand why there are so many people who are unwilling to get the vaccine -- it must be really poor salesmanship by the political/public health folks. But I am sure that "mandates" will make things worse. Have you ever known something that was really good for you that you had to be forced to take, since you were a child?

[Martinned]

Given how partisan the US is right now, half the country would (and did) reject free money if the President endorsed it.

[Armchair Lawyer]

It's hard to believe them when on one hand they demand vaccines and masks...

And on the other hand their leaders are going to fancy French restaurants without masks, having big parties in Martha's Vineyard without masks, going to weddings and dancing without masks...

It's like they set one set of rules for the "little people" then operate by an entirely different set of rules themselves.

[Stephen Lathrop]

Great ideas, all of them, Armchair. Own the libs. Die of Covid.

If that were just you being stupid on your own, no one would care. That is not what is happening. Whole states are turning away people desperately in need of medical care. While that is going on, you say someone unvaccinated and sick with Covid should get triaged ahead of which other desperate cases?

[Armchair Lawyer]

It's not about "owning the libs"

It's about two sets of rules. One the liberal elite get to use. The other that they demand everyone else follow.

And it's wrong. It's why they can't be trusted. If you're not going to follow the same rules you demand everyone else follow, you can't be trusted.

[Aladdin's Carpet]

That's an argument that liberals are hypocrites.

The problem is, it deflects from the actual namely, you ought to get vaccinated That fact does not change because liberals are hypocrites.

[Don Nico]

Actually it is not an argument about trust at all; it is about not "walking the walk." Preaching a good game is not sufficient despite what you and Lathrop say.

[Don Nico]

SL,
The Armchair made a completely legitimate point, loudly reported in the media, yet you just blow it off to launch your own screed and attack him personally.

I have no love for this guy, but you make him sound very reasonable when you duck an accurate comment.

[Stephen Lathrop]

DN, AC above said what I would have said. No need after that.

[Don Nico]

So, you just refuse to comment about a legitimate point from the Armchair.
Got it.

[Stephen Lathrop]

Don Nico, I think you are having a bad day. I'm pretty sure you are smart enough to distinguish a relevant point from an intentional distraction.

But because it seems to mean a lot to you . . . I deplore all political leaders, of whatever stripe—but especially those who call themselves liberals or Democrats—if they act hypocritically—as if endorsing a double standard—on any subject, but especially with regard to pandemic disease. I think it is crucially important that the nation's political leadership take seriously the challenge of conveying the right public health message during a pandemic emergency. That extends to their living both publicly and privately in accordance with the guidance they advocate to the public.

Not only that, I take note when political leaders dishonor commitments I think they should live by, and I vote accordingly.

Good enough for you? Every word is my actual opinion.

But so what? If I am in an argument over slavery, does my ethos really depend on saying I think slavery is bad, before I can add any other point to the discussion? Do I have to first say, "slavery is bad," every time I have another point to make?

[subpatre]

Shorter Lathrop: slavery is bad but I treat my slaves well and make sure they're vaccinated.

[Don Nico]

You said it better than I would have.

[Don Nico]

SL,
Why would I be having a bad day?
All that I said to you was "throw the dog a bone."

[bevis the lumberjack]

I mean, hell, haven’t we pretty much arrived at the point where we should reject “free” money. Because it ain’t actually free.

[Martinned]

QED

[Michael Ejercito]

If you asked me whether you should be vaccinated, I’d say Yes unless there was a good reason not to.

Explain why this woman should get the vaccine.

http://www.instagram.com/Hailee_Earnest/

I don’t understand why there are so many people who are unwilling to get the vaccine — it must be really poor salesmanship by the political/public health folks.

Poor salesmanship is an understatement.

They forfeited trust.

[Dick King]

https://www.nytimes.com/2020/05/29/sports/coronavirus-survivors-athletes.html

-dk

[Don Nico]

A sad story but one that is not uncommon yet not described very much

[Aladdin's Carpet]

I don't understand this. Who is "they" who forfeited trust?

You want to argue at me that the liberal whatever, Biden, CDC, FDA, have forfeited trust? Sure! No problem with that. I am registered Republican! I spent several internships yelling at the FDA (through a supervisor, obviously, but still) for being incompetent assholes. Almost anyone in Pharma would say the same thing if they weren't to afraid the FDA will seek revenge, which is just about the only thing they are capable of doing.

But when Trump pushes the vaccine? Sure he qualified it, but he still recommended it. When Republican senators and congressmen push the vaccine? When Sean Hannity recommends it? He didn't go back on that because he had a change in heart, he went back on that because his audience yelled at him about it. When doctors push it? I know a ton of people in the medical profession. They aren't liberal. They make $400,000 a year, you think they like paying taxes? One of them I know is hardcore the election was faked Trump supporter, but he is a doctor. He strongly advises everyone to get the vaccine.

Like come on, the reason most prominent conservative commentators are awfully quiet about this has nothing to do with them being poor salesmen. It also has nothing to do with them actually being anti-vaxx, say what you want but most are highly educated and know better. It has everything to do with the fact that people fundamentally don't like what is being sold.

I am not excusing them by any means, I think they are being cowards, but that's hardly new.

Dude, I totally understand the feeling that the world and the media has some kind of vendetta against conservatives. I actually do, and as someone who, at least used to, consider himself conservative, I get it! I don't like it when every single tv show decides instead of actually making a decent show or movie with an understandable plot they jam as much liberal nonsense as they possibly can, making all new media extremely annoying. All because they don't care what the audience thinks, they care what people on twitter think.

And there is a lot of problems with that, such as the formation of underground networks that do allow people to actually express ideas (many of which I agree with!), but also amplify the spread of this kind of anti-vaxx bullshit.

But I'll also grant you that if you bothered to have a beer with people who are not progressive but center-left, they would probably say that exact same thing.

So, long rant, but in summary, yeah, if Biden or Trump perhaps hired the dudes who convinced everyone to eat Greek Yogurt instead of run an completely incompetent rollout, yeah. Or even if they put Pfizers marketing team behind it instead of do it themselves. You probably would see less anti-vaxx in the populace. But at some point you pick the person you listen to. And everyone who is in a position to know says the exact same thing.

[Harvey Mosley]

I think people should get the vaccine unless they have medical or religious objections. I also think that people should be given a choice: Prove you're vaccinated or wear a mask. If the whole point is to get more and more people vaccinated that is the best way in my opinion. I'm vaccinated and when some places still require me to wear a mask I have to ask myself why I suffered through three days of being sicker than I have been in a long time and had to miss work if I Still have to wear a mask? Unless of course I'm seated at my table in a restaurant. Somehow that provides complete immunity I guess. And those that can't get vaccinated and are worried about getting Covid should wear a mask. If masks work and vaccines work they should be fine if they wear a mask, especially if I'm vaccinated. If they believe that masks and vaccines are ineffective they should not go out and expose themselves.

[subpatre]

Harvey Mosley explained: I think people should get the vaccine unless they have medical or religious objections. I also think that people should be given a choice: Prove you’re vaccinated or wear a mask star ✡ or pink triangle so we can recognize them. If the whole point is to get more and more people vaccinated that is the best way in my opinion. ...

[Eric VonSalzen]

Michael E: I don't have an Instagram account, and I can't see the "this woman" post, so I don't have an opinion on whether she should or should not get a shot. I think we probably agree on the salesmanship issue.

[Armchair Lawyer]

Basically how I see it. A "mandate" will force people to not do it.

[Rev. Arthur L. Kirkland]

How do these disaffected 'nobody tells me what to do' losers manage to navigate stop signs, tax laws, 'no shoes no service' signs, traffic lights, driver's licenses, zoning rules, 'no parking' signs, MMR vaccine requirements, center lines, parking meters, insurance requirements, and the like without sustaining fatal head explosions?

[Don Nico]

"it must be really poor salesmanship by the political/public health folks"
Eric,
I am afraid that both national and state public health authorities have done a good job ob lowering public confidence in their statements and recommendations.
Are their also "crazies?" Of course. But there are many people who are honestly unconvinced and don't like being bullied. That is a failure of leadership in both parties and at all levels of government

[Eric VonSalzen]

Don N.: I agree with your point: One really bad way to persuade people to do something for their own good is to make it mandatory. A reasonable person could ask, If vaccination is good for me, why do you have to make it mandatory?
Where I live, when the vaccines first became available for senior citizens early this year, we all signed up for the jab (I got my first shot on the morning of innauguration day, when Trump was still President, and I thought that was appropriate, because he had pushed Operation Warp Speed).
Now, as I understand from the news, African Americans and Hispanics are the most vaccine-adverse ethnic groups. During the last several election cycles, both parties have been trying to attract Hispanic voters, and starting in 2016 both parties seemed to make serious efforts to get AA votes. I think it would be cool if Trump appealled to AAs and Hispanics to get vaccinated.

[David Nieporent]

One really bad way to persuade people to do something for their own good is to make it mandatory.

I mean, this is obviously silly. You don't need to persuade someone in the first place if it's mandatory.

[Don Nico]

Not really silly, David.
A person may comply, but that does not mean that s/he has been persuaded of the correctness of the order.
In civilian America, we tend to value real persuasion over strict obedience.

[David Nieporent]

It's silly because it's a category error. Nobody thinks that a mandate is about persuasion; it's about getting people vaccinated. Once they are, persuasion is a non-issue.

"We've tried everything we can think of to persuade them to get vaccinated, but it hasn't worked. We need to mandate vaccination instead."
"But that won't persuade them."

[Don Nico]

David,
I disagree with your logical analysis.
Getting people to get a vaccine has two major avenues: 1) the police power of the state or 2) persuading them that it is in their best interest.
In this country #2 is the most desirable even when the ruling class decides on #1.
Your saying that the distinction is "silly" ignores the fact that value at #2 tends to destroy the public's confidence in its government.

[Stephen Lathrop]

Don Nico, when I hear, "the public's confidence," it puts me in mind of a majority of the public. Perhaps the majority of the public has by now lost confidence in persuasion as a way to motive a minority demonstrably committed to vaccination avoidance. Just speaking for myself, the continuing lack of an effective mandate is what erodes my confidence in government. Who knows? Maybe I am in the majority.

[Don Nico]

"the continuing lack of an effective mandate is what erodes my confidence in government."
I am sympathetic to that point of view with the proviso that "effective" includes rational and does not include law enforcement officers going door-to-door.

[Stephen Lathrop]

Don Nico, can you point to anyone holding any notable office anywhere who has urged door-to-door roundups of the unvaccinated? If not, what were you thinking when you decided to bring it up?

[grb]

Don Nico : "That is a failure of leadership in both parties and at all levels of government"

Well, I guess you must like saying that and (per your insistence) I'm not supposed to point-out it's completely phony in every possible way. Still: it is.

The anti-vaxx Right didn't emerge because of the record of the FDA, good or bad. All these newly-minted vaccine skeptics know zero about the FDA approval processes or the agency's long-term record. How do they think one of our new anti-vaxxers would respond if asked how the agency "forfeited their trust"? I kinda doubt you'd get much substance in reply.

Nor was it caused by "really poor salesmanship". A whole political ideology didn't suddenly decide to lean anti-vaxx overnight because someone didn't produce a sunny-enough sixty-second spot. Can you honestly believe that ?!?

Nor did it result from Fauci's initial false step on mask policy or any of the other litany of official mistakes the Right hugs to their chest like a child her teddy bear. It's not a very persuasive list to people not looking for any excuse to be persuaded.

Sorry, the pro-covid policy of the Right didn't emerge from bureaucratic snafus or mediocre PR, it was carefully nurtured and grown by the Right's own political leaders. They thought there was political gain in this tawdry form of denialist populism, so they cultivated it with consistent & detailed messaging. They told their followers to ignore covid, to sneer at its effects, to mistrust health statistics, to see conspiracy everywhere, to fight any precautions, to hate public health experts and believe flimsy & unsupported counterfactuals. The anti-vaccine component came at the end of a long road, long after the Right had established itself as the proudly pro-covid party.

Personally, I don't see how a perky ad campaign was supposed to change that.

[Aladdin's Carpet]

"canot"

Copy error or (sic) and the west virginia attorney general canot spell? 🙂

[Eugene Volokh]

So in original, but let he who has never had typos in his own work cast the first stone.

[Aladdin's Carpet]

I had 3 shots, the booster was almost certainly in violation of the existing public health rules regarding boosters (first two were moderna and I just graduated college for age reference) but I dont really care.

And I straight up refuse to wear a mask. Regardless of people downplaying this, it really does causes breathing issues for me, it lowers my quality of life in basic communication, and at this point, I refuse to lower my quality of life further because some people (anti-vaxxers and apparently the federal government) insist on being as stupid as humanly possible.

[Martinned]

You understand that vaccinated people can also give each other Covid? The probability is lower, but given a sufficiently high number of interactions per person and a sufficiently high number of individuals, the odds go way up.

[Aladdin's Carpet]

And? The probability is still lower. And they probability won't die from it. I have less of a chance of dying from it. Expecially if you have a booster, which I do.

Again, I will not continue to make sacrifices when this is being driven largely by people being idiots. I'm just not. People being unvaccinated is a lot of the problem, as is ad hoc stupid decision making by the federal government regarding boosters and vaccines for people under 12, meaning I probably broke the law getting one!

The bar cannot be everyone should live as risk free life as possible. The bar should be, people do simple fucking things like getting a vaccine to eliminate some, not all, risk, and then live their lives like human beings.

[Bruce Hayden]

No. I don’t think that you get it. If you get vaccinated, you can probably still get the virus - it just isn’t probably going to be as bad. And you can pass it on to others. So, what’s it to you if I don’t get vaccinated? I would maybe be harmed if I caught the virus, if I hadn’t been vaccinated. Moreover, there is some evidence that the vaccinated are superspreaders, because the vaccine appears to allow people to spread the virus longer, in larger dosages, while being mostly asymptotic. That would mean that it would possibly to your advantage if you were vaccinated, and I wasn’t.

[Tom for equal rights]

Hayden's comment - "Moreover, there is some evidence that the vaccinated are superspreaders, because the vaccine appears to allow people to spread the virus longer, in larger dosages, while being mostly asymptotic."

That is unlikely to be true. Asymptomatic individuals are a very small fraction of spreaders of covid, That is true for every viral infectious disease. Just because its "covid" doesnt make asystomptomatic individuals the spreaders of viral infections when its not true for other viral infections.

[Michael P]

Vaccination reduces the risk of infection. It reduces the expected duration and severity of infection, probably meaning that a (vaccine-)breakthrough infection has an even lower reproduction number. Can you provide any citation for your speculation about vaccinated people being "superspreaders"?

The credible evidence says that unvaccinated people have longer infections, meaning more chance for the virus to mutate and escape immune responses. Most evidence also says they are more contagious as well. Unvaccinated people are more, not less, dangerous to everyone else.

[Tom for equal rights]

To add to Michaels point - There are good indications that 80%-90% of covid transmission is from only 10% - 15% of the covid infected. The claim that Asytomptomatic individuals account for significant portion of the transmission is highly dubious, best educated estimate is less than 5% and more likely 2-3% is from asystomptomatic individuals. Most likely very low transmission rates from infected vaccinated individuals.

A good example is I have had prolonged exposure from several covid infected individuals, 2 of which are employees , one who was in the office 2 days while infected, the second who was in the office for 9 days while infected. In spite of heavy interaction/exposure, neither employee infected any other employee, nor did those uninfected employees become carriers and infect their other family members.

[Don Nico]

Tom,
Such anecdotes are not useful for drawing broad conclusions for yourself or for others. Both of the individuals you refer to may have had very low viral loads. You (and we) don't know.
I agree that asymptomatic or pre-symptomatic persons probably account for a small fraction of transmissions, but again that has not been determined experimentally.
Why?
I attribute that lack to a failure of public health authorities in large states, especially CA, the 5th largest economy in the world with 15% of the US populations, with 4 medical schools in the US top 20, and with a huge budget surplus, yet with no significant SARS-CoV-2 research results.

[Tom for equal rights]

Don - The 10-15/85-90% estimate of transmission comes from some preliminary studies done early in the covid epidemic, though unfortunately I can locate those studies.
I am also aware of two other incidences where several people were infected at an event, bought it home but infected no one at home.
That being said, my anecdotal evidence does seem to support that conclusion. That is also consistent with other flu virus.

[Don Nico]

Bruce,
What would be extremely useful is a large experimental determination of the distribution of viral titres in infected persons with NO immunity, those with natural immunity (in other words on their 2nd or 3 case of COVID-19) and those with vaccination community.
We do know that the superspreaders are the greatest hazard to the public. Such a measurement would tell us if vaccination or natural immunity change the identity of superspreaders.

[A nerdy Fred]

>We do know that the superspreaders are the greatest hazard to the public

Which leads to an interesting idea about how a law could be "narrowly tailored".

There was a Wired article a while back asking, why not vaccinate the social butterflies first? Some people stay at home most of the time, other people breathe around hundreds of others per day. That article was about prioritizing scarce vaccines, not about mandates, but it provokes a thought.

It would be challenging and controversial to identify whose jobs and lifestyles put them in the category of potential superspreaders, but a vaccine mandate applying to them in particular might work very well for reducing spread while being narrower in scope.

[Don Nico]

"Which leads to an interesting idea about how a law could be “narrowly tailored”.
Excellent point but too refined for our elected leaders

[Aladdin's Carpet]

Like the common objection from anti-vaxxers is something like, why do you need protection from me, why should you care about my health decisions ... ok, then I dont. If I contract it, spread it to you because I am not wearing a mask, and you die, fuck it, its your problem.

[Bruce Hayden]

No. Not even close. Keep stereotyping though if it makes you feel good.

[Aladdin's Carpet]

What is your objection then? Because I have heard that multiple times. I'm not stereotyping.

If you are obese, you probably should stop eating shit and go work out. If you are unvaccinated, you probably should get the shot. Its just basic health advice which is scientifically correct.

If your objection to either of those statements is that I should mind my own business and it is no concern of mine that 2000 similarly deluded people die a day of Covid or that tens of thousands die each year of cardiovascular disease, well, then fuck it. I'm not going to That is literally what I said. Whats wrong with that? Do you want me to care? Then get the fucking shot.

[Don Nico]

It is strange to hear your objection when you have already admitted to blowing off the public health authority directives.

[Aladdin's Carpet]

There is zero legitimate argument to the notion that an Israeli is allowed to take a booster shot or a British person is allowed to take a booster shot but someone in the US is not. Zero,

Me taking the vaccine has very little to do with trusting public health authorities, and has everything to do with common sense as well as have a decent understanding of the science involved.

[Don Nico]

"There is zero legitimate argument..."
with that I agree completely
It is another reason that I consider the credibility of the CDC and CA public health authorities to be low.

[Don Nico]

"everything to do with common sense as well as have a decent understanding of the science involved."

Your common sense about this issue has little to do with the underlying virology, immunology or basis biology of SARS-CoV-2 infections. The same applies to the "anti-vaxxers."

[Bruce Hayden]

You gave no reason why I should endanger myself by getting the novel, experimental, unapproved by FDA, gene therapy, only available through EUAs, non sterilizing “vaccine”. It won’t keep me from getting the virus (“breakthrough cases”) - just maybe not as badly. And there is a chance that these vaccines, because they are not sterilizing, are superspreaders, which means that they may make infecting others more likely. That is because you can be asymptotically spreading the virus longer. Moreover, because the vaccines are not sterilizing, they don’t help reaching herd immunity.

So, why again, do you think that it is so important for me to be vaccinated?

[benji]

You need to update your talking points, they've been FDA approved for a while now, unlike Ivermectin or monoclonal antibodies.

[Michael P]

Ivermectin has full FDA approval, although not for Covid. So do some monoclonal antibodies, although the ones used for Covid treatment only have EUAs.

[Currentsitguy]

No law or mandate is going to change the decisions people make. You are either going to make your peace and have faith in the efficacy of the shot(s) or you can chose to spend the rest of your life in fear of the decisions of others.

I've already had this and recovered, so I have little need for additional protection, but even if I did, I have no intention on even considering this until I see double blind long term studies.

If people don't like that fact that's on them. I can't concern myself with the irrational fears of others.

[David Nieporent]

No law or mandate is going to change the decisions people make.

I mean, that's obviously not true.

[Rev. Arthur L. Kirkland]

" No law or mandate is going to change the decisions people make. "

Just look at stop signs.

[Don Nico]

"he booster was almost certainly in violation of the existing public health rules"
in the US. The UK allows mixed or match

[ReaderY]

This makes no sense to me. The opinion starts out by saying a vaccine mandate would be prohibited under the state constitution, but,

1. Doesn’t appear to discuss any state constitutional provisions or atate Supreme Court provisions construing the state constitution.

2. Discusses and comments on a series of old federal cases, arguing more recent “autonomy” cases have overruled Jacobson v. Massachusetts.

3. Doesn’t discuss any of the recent U.S. Supreme Court decisions specifically on the subject of COVID mandates that have construed the federal understanding of what Due Process requires.

If this were a law professor, I would suspect this person of making up his own law by determining for himself what body of law to use to address the question, without regard to the body of law that would appear to be most obviously relevant - state constitutional provisions and state Supreme Court decisions for state law, and RECENT U.S. Supreme Court decisions regarding emergency powers in an epidemic for federal law.

[Tom for equal rights]

the Vaccine mandate in jacobson v mass was under state law

[David Nieporent]

The opinion starts out by saying a vaccine mandate would be prohibited under the state constitution, but,

Well, not exactly. It says "would violate our State's constitution (as it should be properly understood)," which is virtually a neon sign saying, "This is how I want it to be, not how the courts have actually interpreted it."

[Noscitur a sociis]

Wait till you read the analysis of the Smith test!

[Don Nico]

"would violate our State’s constitution (as it should be properly understood), "
yes that is completely within the State AG's remit.

[Noscitur a sociis]

I wasn't expecting a who.e lot from the attorney general of West Virginia, but he still found a way to disappoint.

[Aladdin's Carpet]

Just a side note, I feel like the words "properly understood" is code for "everything I am about to say is incorrect and utter horseshit"

Like I have noticed this on the left and the right legal advisories, people with no evidence for their claims preface it with "as properly understood" to mean, this isn't actually how it is understood, no one understands it like this, I have no evidence it should be understood like this, but in my view this is how it is "properly understood."

Maybe I havent read enough to make that call, but an observation.

[The Turtle Dove]

There's an unfortunate circularity in substantive due process law. If I understand this right, generally, the government has to prove that there's a rational basis for the regulation, unless there's an enumerated right or a right that's got a decent provenance to it, in which case strict scrutiny applies, and the regulation has to be the least restrictive way of accomplishing an important government objective. The difficulty is that when the plaintiffs start looking around for the rights that are imperiled, they're also looking to rights of religion, speech, association, &c; these rights all have their own sense and jurisprudence and their own balancing.

At its core, substantive due process asks if the government can do that, whatever that might be. And, in the beginning, Jacobsen said, yes, of course, the rulemaking body that made these restrictions had that power. The "autonomy cases" (Griswold, Roe, &c.) and enumerated and penumbral rights then move the beam of the flashlight forward a bit on the lawmaking process, but there's always that first "step zero" where you look at the competence of the regulating authority -- if the abortion restrictions in Roe had been made by the local zoning board, the case would be over, under precisely the same rationale for decision as a holding that looked a little further down the lawmaking process. If you're asking if the government can do "that," the nature of the government action is just as important as the rights that it imperils. In a way, those two things are identical.

So I think the way to balance Jacobsen with the privacy cases might be: Look at the type of action that the government took (and this was the entirety of the holding of Jacobsen); if it's legit, then generic lifelibertyproperty concerns are assuaged, because a legitimate government body is acting within its competence, and taking an action in contexts clearly anticipated by its organic authority. Then, you deal with the pesky circularities that pop up in terms of religion, speech, association, shadows and invisible emanations, not quartering soldiers, what you will. Having generally accepted that the government was reasonably acting within its authorized competence, you look to see if there was undue animus, disproportionate effects, facial violations of enumerated rights, and then consider, separate from concerns of general liberty, under a closer tailoring, if the means are the minimum sufficient to achieved the desired end, given the identified evil.

What you shouldn't do is collapse this close tailoring of strict scrutiny into the general liberty concerns of the first step. Every governmental restriction implicates lifelibertyproperty (that's the meaning of the word "restriction"); but if the people and the legislature have already authorized the government to take this sort of action in this sort of circumstance, the government is within its rights to do so, and the court shouldn't second-guess it. That's the central teaching of Jacobsen.

Or perhaps not. But it's a possibility.

Mr. D.

[ducksalad]

Mr. D, it seems to me you are assuming the most difficult step: deciding whether or not "the people and the legislature have already authorized the government to take this sort of action in this sort of circumstance" or the government is "taking an action in contexts clearly anticipated by its organic authority".

I suppose in the case of state government a wild-eyed anti-liberty maximalist could claim that holding an election is the people giving default authorization for the resulting government to take any action not prohibited. Let's call it the "mandate theory". I think that's deeply flawed reasoning in multiple ways. For one, the ballot is usually a list of candidates, not a list of powers we wish to grant or withhold. For two, how does the mandate theory hold up when voters elect someone running on a "more liberty" platform, but the official then does the opposite?

Assuming you're not a wild-eyed anti-liberty maximalist, then you necessarily have to ask whether some action is within the contemplated scope of government. Even if, like most state governments, it not limited to an enumerated list.

You implicitly acknowledge this with your example of a local zoning board trying to ban abortion. I suppose (or rather hope) you'd say the same about a zoning board reserving 90% of land for the exclusive use of vaccinated people, or a water board saying only vaccinated people may have water service.

Obviously a city government has little more scope, and a state government has even more. I don't think it's "everything not prohibited".

[The Turtle Dove]

There's a structural answer to this concern. You assume that elections are the legitimating force, and they are, although up the food chain a bit, along with the Federal Constitution, which stands proxy for the popular sovereignty that directly governs in places like the UK by means of Parliament. Look down the food chain a bit. Every executive agency is going to have an organic act, and every government action (including that of the non-constitutional courts) is going to have a legislative mandate. That law, passed by the people's representatives, stands proxy for the legitimacy of the people that underlies it.

So if Congress passes a highly reticulated law setting up an agency to regulate foods and drugs, and that agency then attempts to regulate the sale of Glenn Miller records, it's lost its legitimating support from the people's constitution. Lawmaking traces out a certain ground, incorporates certain assumptions about future events, barks or remains silent at the past rulings of the courts, and generally recites a litany of related terms, and by putting them all together, you can develop a picture of what an agency is supposed to do, in the eyes of its organic legislative authority.

Things get more complicated when the President acts according to their Article II powers, which are theoretically just as valid, but because there's been no mapping of the territory with a litany of words, there's no ex ante consensus as to the bounds of the authority, so the courts would need to step in as a historians of sorts, to piece together what constellations and historical paradigms are fair game under the constitiution's existing deal.

So in the situation you describe where an elected officer acts against their platform, you're still stuck with the law, since this is a republic. But it's still legitimate, since you elected the type of person who would do such a thing, And if a local zoning board made a regulation restricting according to vaccination status, I would look at the organic authority of the board under the state statutes, and if they were somehow broad enough to allow such an act, and there was somehow no tension with the state's constitution under state judicial review, I would think that a federal substantive due process concern might arise, as the customers, rather than the business owners, were deprived of some property or liberty interest, but never received appropriate notice and a chance to be heard. But the point is that this generic interest shouldn't be limited by the means-tailoring of strict scrutiny, but by looking at 1. the procedural legitimacy of the restriction 2. the rational basis for restrictions on lifelibertyproperty, and only then 3. the strict scrutiny for enumerated or specific rights directly and forseeably imperiled.

Mr. D.

[Rev. Arthur L. Kirkland]

Hello, Mr. D.

[The Turtle Dove]

Yes, well. Pleased to meet you, I'm sure.
Hope you guess my name.

Mr. D.

[A nerdy Fred]

I control-F'ed for an author name and didn't find it, so maybe this hasn't been posted yet.

A pair of law professors have put together a lengthy analysis of how post-Jacobson constitutional affects how to draft a vaccine mandate:
https://www.lawfareblog.com/Designed-Public-Vaccination-Mandates