George Mason University in DC is sort of the home of the Libertarian School of Economics (if there is such a thing). Here's an interesting story from GMU. I hope the scope of this thinking expands to help prospective students. Might be a good story for Sott, too.
Prominent Law Professor Sues His School Over Vaccine PolicyEthan Yang
– August 7, 2021
Imposing a constitutionally dubious vaccine policy at a public university that not only has some of the top classical liberal law professors in the country but is also intimately connected with a global network of freedom advocates is a recipe for a lawsuit. That’s exactly what George Mason University learned recently when it imposed a school-wide vaccine mandate for students, faculty, and staff. Failure to comply subjects individuals to a list of penalties from social distancing requirements to potential disciplinary action. The plaintiff is Todd Zywicki, the George Mason University Foundation Professor of Law, who has as impressive of a resume as anyone can imagine. He has held positions at numerous influential think tanks, executive positions in the federal government, and has taught at numerous respected law schools. His lawsuit is joined by the New Civil Liberties Alliance, a non-profit law firm dedicated to advancing constitutional freedoms and founded by the prominent legal scholar Philip Hamburger. AIER contributor Jenin Younes is also a member of their litigation team and one of the attorneys on this case.
Zywicki names the president of the school and numerous other officers as the defendants in his suit Zywicki v Washington. He alleges that as a public institution, GMU is obligated to follow the Constitution and its vaccine policy violates the 9th and 14th Amendments as well as the Supremacy Clause. Zywicki contends that his natural immunity from having recovered from a natural Covid-19 infection gives him equal if not superior protection than vaccines. His sentiments are supported by his immunologist, who informed him that receiving a vaccine would be “medically unnecessary”, as well as a joint declaration from Dr. Jay Bhattacharya and Dr. Martin Kulldorff, prominent medical professors at Stanford and Harvard respectively. They write that,
The declaration, found in Exhibit A of the docket, also explains that the evidence to support mitigation measures such as vaccine mandates and passports is lacking.
Count 1: Violation of the Right to Refuse Unwanted and Medically Unnecessary HealthcareThe plaintiff asserts that GMU’s vaccine policy, in practice a mandate, and refusal to acknowledge the merits of natural immunity are problematic because they violate his right to refuse unnecessary healthcare. The complaint states,
The 9th Amendment protects unenumerated rights, which are those that are not explicitly stated in the Constitution. The 14th Amendment protects due process and equal protection under the law. The Covid-19 vaccine is currently deployed under the Emergency Use Authorization and citizens are therefore entitled to be informed of their right to accept or refuse. This fact, combined with the plaintiff’s already robust natural immunity and unlikeliness to infect others with a relatively mild disease, renders such a mandate a violation of privacy. Furthermore, established case law enshrines the right to bodily integrity. The suit asserts,
If the state wishes to implement a coercive measure, the burden of evidence is on itself to prove that its policy is narrowly tailored to a compelling government interest. The plaintiffs contend,
Count 2: Violation of Unconstitutional Conditions Doctrine and 14th Amendment’s Right to Due ProcessThe Unconstitutional Conditions Doctrine prohibits the government from imposing coercive incentives against exercising a constitutionally protected right. GMU’s penalties are therefore an impairment of Professor Zywicki’s right to refuse medical care. His complaint states,
Furthermore, the school’s policy is a violation of due process as it is incongruent, disproportional, and inappropriately flips the burden of evidence onto the plaintiff. In light of the robust immunity established by natural infection, the school cannot logically justify its penalties against those in the GMU community with naturally acquired immunity. The existence of such immunity fully serves the interest of the public health measures implemented by GMU.
The policy also is also deficient of proportionality, as the school indicates no intention to assess the level of antibody level of its targets. If the school believes that the prevalence of antibodies is important in advancing its public health goals, then it ought to recognize that they are acquired by both vaccination and infection. The school not only signals any intention to test for antibodies, but makes the premature conclusion that vaccination is superior, even assuming equality of effectiveness amongst all vaccines. The suit asserts,
The burden of proof is on the school to show that Zywicki’s naturally acquired immunity is in fact inferior to the vaccines accepted by its policy, and noncompliance poses a threat to public safety. The plaintiff alleged the school has not demonstrated this requirement.
Count 3: Violation of the Supremacy ClauseThe Supremacy Clause holds that federal law supersedes state law. GMU’s policy is Virginia state law and the Emergency Use Authorization (EUA) is federal law. Covid-19 vaccines are authorized by the EUA, which subjects recipients to informed consent. Because GMU’s coercive policies conflict with the letter and spirit of the EUA, it is therefore unconstitutional. According to the complaint,
For these reasons and more, Zywicki asked the court to declare the policies unconstitutional and an injunction be issued.
Key TakeawaysThe fight over the official narrative regarding Covid-19 is still alive and well. This lawsuit is only illustrative of the two camps that have developed and how insulated many core decision makers have been from one over the other. Natural immunity for example, although clearly affirmed by the supporting evidence, seems to be unacknowledged writ large. The disproportionate perceptions of the risk of Covid-19 are still rampant.
The significance of this case cannot be overstated with vaccine mandates and passports being considered and implemented across the country. One does not need a background in law to understand that the pandemic has sent the country into another constitutional inflection point. From emergency powers, to lockdowns, to eviction moratoriums, and now vaccine mandates, the precedents we set today will forever affect the ark of our system of constitutional government.
While I hope this action has some positive effect, I think we've learned over the last few years that violent mobs (and probable night visits) trump fairness and legal solutions.
But maybe if this captures enough public attention, the powers behind the throne will not be bold enough to trample the courts.