Category Archives: US Constitution

DHS: Mis- dis- and mal-information (MDM) being caused by “Domestic Terrorists”

Citizens need to take notice and take action. We are ON the slippery slope. I don’t think there is any denying that. mrossol

Dr Robert Malone, MD  1/23/2022

The U.S. Constitution

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America…

First Amendment 

  • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In the United States, our right to free speech and the right to assemble is paramount to who we are. So when the Department of Homeland Security puts out the following National Terrorism Advisory Bulletin, it is time for all Americans to pay attention.

Summary of Terrorism Threat to the U.S. Homeland (the full bulletin is linked here)

The United States remains in a heightened threat environment fueled by several factors, including an online environment filled with false or misleading narratives and conspiracy theories, and other forms of mis- dis- and mal-information (MDM) introduced and/or amplified by foreign and domestic threat actors.…The primary terrorism-related threat to the United States continues to stem from lone offenders or small cells of individuals who are motivated by a range of foreign and/or domestic grievances often cultivated through the consumption of certain online content.

(1) the proliferation of false or misleading narratives, which sow discord or undermine public trust in U.S. government institutions;

Key factors contributing to the current heightened threat environment include:

  1. The proliferation of false or misleading narratives, which sow discord or undermine public trust in U.S. government institutions:

    • For example, there is widespread online proliferation of false or misleading narratives regarding unsubstantiated widespread election fraud and COVID-19. Grievances associated with these themes inspired violent extremist attacks during 2021.

    • As COVID-19 restrictions continue to decrease nationwide, increased access to commercial and government facilities and the rising number of mass gatherings could provide increased opportunities for individuals looking to commit acts of violence to do so, often with little or no warning. Meanwhile, COVID-19 mitigation measures—particularly COVID-19 vaccine and mask mandates—have been used by domestic violent extremists to justify violence since 2020 and could continue to inspire these extremists to target government, healthcare, and academic institutions that they associate with those measures.


This bulletin has some of my colleagues as well as myself – very worried. Those who are writing and speaking about science and health policy are now in danger of being targeted by the US Government as domestic terrorists for spreading “mis- dis- and mal-information (MDM)”.

The manipulative linking of election violence to COVID-19 policies is disingenuous. It is a calculated strategy to allow government authorities to crack down on those people who are going against the Health and Human Services narrative that there are no early treatments for COVID-19 and that everyone must get vaccinated, and that the lockdowns and mask mandates were necessary. The US Government must be held accountable for their failed policies and authoritarian behavior during this pandemic.

Scientists, the press, physicians and yes, laypeople must be able to speak and write freely. In this day and age, that means by use of the Internet. There is no one right answer for everyone when it comes to healthcare treatments and the choice to take a vaccine. As a people, we can not allow ourselves to be censored in this manner

It is time that our legislative and judicial branches of government to do their job to protect our first amendment rights. This bulletin can not be allowed to stand or we will no longer have freedom of speech in this country.

First they came for the Jews and I did not speak out because I was not a Jew. Then they came for the Communists and I did not speak out because I was not a Communist. Then they came for the trade unionists and I did not speak out because I was not a trade unionist. Then they came for me and there was no one left to speak out for me.

Now they have come for the physicians and the scientists. Who is next?


☕️ Coffee & Covid ☙ Friday, January 14, 2022

Just discovered another good writer, and detective/analyst. mrossol

It’s an auspicious Friday here at C&C, as we begin to figure out the Supreme Court’s double decisions from yesterday.


🥷 I’m in jail, again. Something about yesterday’s post triggered the censors on that OTHER PLATFORM — I have no idea what — and now my account is under lockdown for three days. I feel like an Australian who just tested positive at CVS.

My poor followers on that OTHER PLATFORM are probably frantic. We could overcome the lockdown-happy censors by directing folks back over here, social media’s version of Florida. Please feel free to share a link to this post on that other platform.

👩‍⚕️ Update on Dan Pisano’s case. The Hospital filed its brief yesterday by its 10am deadline. That gave us till 3pm today to draft and file our Reply, at which time the case will be fully briefed. I’ve been buried in drafting, which is why I didn’t notice the two Big Decisions come down until my email and texts began blowing up yesterday.

Since I’m still working furiously to save Dan’s life, I’m going to keep today’s post focused just on the decisions, since I know everyone wants to hear about my first impressions. I have thoughts.

👨‍⚖️ As I said, I was deep in furious drafting and researching when two strands of messages started coming in from all my contacts over email and in my texts. The OSHA group’s messages were ecstatic; a steady stream of high-fives and champagne emoji’s. The CMS folks were streaming an electronic river of tiny mad faces and that little emoji where the top of the guy’s head is going up in a mushroom cloud.

(I can’t believe I just used the word “emoji” in a serious sentence. Anyway.)

I will have more to say about the two decisions in coming days, as I have more time to unpack them and calculate the effects. Today you get my “hot takes.”


Lawyers are referred to as “officers of the court.” We are often described as “part of the court system.” This sometimes translates into advantages like getting to enter the courthouse through the court’s private door, with no lines and simplified security. Some courts — a few — even let lawyers carry their concealed weapons in. Some judges don’t require lawyers to be sworn to testify, since we already have ethical duties of candor as officers of the court.

The ethical rules for lawyers prohibit us from criticizing specific judges and the legal SYSTEM generally. That doesn’t mean we CAN’T criticize them, but we are required to be professional and circumspect about it. The rule, exquisitely frustrating at times, does make sense. It’s kind of like the rule that an employee shouldn’t criticize their own company or their managers. Quit, then you can say whatever you want, otherwise keep your mouth shut.

Obviously, lawyers often dissect Supreme Court opinions and note silly things that Justices say. I can do that. I’m just letting you know, ethical lawyers aren’t supposed to tear them a new one or anything.


In the early part of the 1900’s, FDR — who never saw a socialist he didn’t love — tried to implement lots of federal control over the economy, which he called the “New Deal,” and the Supreme Court didn’t like it much. For example, FDR tried to pass a national minimum wage, and the Court struck it down as unconstitutional. A personal conflict between FDR and the Chief Judge spilled over into the nation’s headlines.

In 1936, Roosevelt was re-elected in a landslide. Shortly after, he announced a plan to increase the number of Supreme Court Justices from 9 to 13, which would give him five immediate appointments and allow him to “pack” the Court with friendly judges. His public explanation was that the Court just had too few Justices and couldn’t hear enough cases. So FDR sent a bill to Congress, which was held up in the Democrat-controlled Senate.

But in the meantime, the Justices got the message, loud and clear, and started finding new things to like about the New Deal and FDR’s socialist laws to be Constitutional. That sordid saga is now required history in law schools these days. It’s described as an extreme way that the executive branch can get control over the Supreme Court.


Biden knew he would be taking office facing a conservative Court with three Trump-appointed Justices. Even during the elections in 2020, liberal pundits waxed eloquent on all the good reasons that a bigger Supreme Court would be a great benefit to the entire country.

On April 9, 2021 — four months after taking control — Joe Biden signed an executive order creating the Presidential Commission on the Supreme Court of the United States. The Commission’s purpose was to consider and recommend “improvements” to the Supreme Court including “the membership and size of the Court.”

During the next few months, I noticed and commented about a remarkable series of 9-0 opinions coming from the Court. What I said at the time — and still believe — is that the Supreme Court was sending the Biden Administration some kind of message. Something like, “you can add five justices but it won’t change anything because we’re going to vote together.”

But there was also a silk glove along with the iron fist of voting uniformity. During the same period, the Court turned down review of ALL the cases related to Biden’s signature “accomplishment”: high vaccine rates. Arguably, Biden has utterly failed in every single other area of governance: foreign policy, managing (or MIS-managing) Afghanistan, the economy, his poll numbers, and losing Democrat seats in state and local elections. The ONLY thing that was going his way was his vaccine plan — through brute force.

Which is why, if Biden can’t announce that he shut down the virus on March 1, he doesn’t really have a lot of good news to talk about. None, if you think about it. And, as I’ve explained earlier, I believe that’s why Narrative 2.0 — all-of-a-sudden — is that the pandemic is over. But that’s a separate issue.

On December 7 — a month ago — the Presidential Commission sent Biden its final report — which did NOT recommend packing or otherwise increasing the size of the Supreme Court. Leftwing media expressed outrage, and reported lots of Democrats, including lawmakers and influencers, frantically calling on Biden to pack the court anyway. In Twitter’s fever-swamps, this debate rages on, right now.

So the timing of the Court’s review of the two mandates could not possibly have been at a worse time for the Court, politically speaking. Note that I am NOT accusing the Supreme Court justices of being influenced by politics rather than reason in their decisions yesterday. I’m just noting some interesting and possibly-related historical and current political trends. I’m just saying.


My initial reaction to the two decisions is to note a bunch of curious elements. I haven’t put it all together yet, but let’s just take a gander at a few things that stand out as we try to wrap our lockdown-fatigued brains around what — superficially, at least — looks at first blush like a very schizophrenic pair of decisions.

Judges love “baby splitting.” The term refers to that old story about King Solomon where he suggested the solution of cutting a live baby in two to find out who the real mother was. But that’s not what it means in present vernacular. It just means that judges like to give both parties something, to divide the decision somehow, so that nobody’s completely happy but — more importantly — nobody’s completely left high-and-dry and outraged at the judge.

It seems to me that, it must have been very tempting to shoot for a baby-splitting solution at a time when the Court’s composition rests precariously on top of a giant pile of political tinder, with social and emotional court-packing gasoline soaked all through it, deciding the issue that could shatter the microscopic Biden legacy at a time when he and the Democrats control all the levers of power in Washington. Regular readers may recall that, after hearing oral arguments, I predicted the exact result that we saw: the OSHA Mandate was stayed, and the CMS Mandate was green-lighted.

Having two cases gave the Supreme Court a political opportunity to split the baby.

So, even if it wasn’t their express objective, the dual decisions did split the baby and did defuse a court-packing atom bomb. In other words, if both mandates had remained stayed, and not just one, then liberal demands for a packed court would have spiked higher than Omicron cases in New York.


It is interesting that both decisions issued simultaneously. If you think about it, apart from the fact that the two cases were both about vaccine mandates, they were two different lawsuits, two completely different sets of statutes, with two different sets of issues, and — most important — two different configurations of Justices.

There is no question that the Court must have held up one of the decisions, the one that was finished first, until the other decision was also done, before releasing them both together.

Why? Why not issue the first decision as soon as it was ready, then later issue the second decision when that one was done? It could have helped SOMEBODY. The fact is, I do not know the reason. Only the Supreme Court knows why. But it was extremely POLITICALLY convenient for them both to issue together. Had the OSHA decision come out first, the media would have gone crazy calling for court packing. Had the CMS decision issued first, a massive tsunami of conservative dissatisfaction would have begun to form somewhere off the Atlantic coast.

Issuing the two decisions together stopped both sides from developing momentum. Coincidentally.


The majority opinions of Supreme Court decisions can be written several ways. The most common one is where the deciding Justices sign the opinion, and you can tell who wrote it and who joined it, fully, partially, etc. For example, in Janus v. AFSCME (another prominent case from 2018), the majority opinion was signed like this:

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and GORSUCH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.

But both of the decisions issued yesterday were signed in a much less common way: “PER CURIAM.”

Wikipedia defines the term: “In law, a per curiam decision is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court acting collectively.” It notes “the decisions of the U.S. Supreme Court are usually NOT per curiam … Per curiam decisions tend to be short. In modern practice, they are most commonly used in summary decisions that the Court resolves without full argument and briefing.”

So the OSHA and CMS decisions don’t match the normal characteristics of a per curiam decision, which itself is a rare form. So these decisions are a super-rare type.

The term basically means, “for the whole court.” One consequence is that you can’t tell who authored the decision. Nobody takes the credit or the blame. I’m not saying it proves the Court had political concerns about the decisions, but it is suggestive.


You aren’t going to see a lot of quotes from either main opinion. The Court didn’t wax eloquent in either the OSHA or the CMS case. It’s not that the decisions were ineloquent. They were neutrally-toned, workmanlike, boring. They focused, by and large, on very technical issues of statutes and doctrines. There were no high principles expressed. No new law was made. I would be surprised if either case is ever cited by any other case except maybe for technical issues like the bare existence of the “major questions doctrine.“

The dissenting opinions in both were slightly more passionate, but even in those, one can’t help but feel a little disappointed. They were predictable, merely tracking comments already made by the Justices at oral argument. Nothing new. No strong condemnations. And — in particular — they didn’t point out the huge weaknesses in the reasoning, especially of the CMS case.

There were notable facts missing. Neither the OSHA opinion nor the CMS opinion cited the number of deaths from Covid, for example. You’d think that at least the CMS opinion would have mentioned it. Neither opinion — and this is really remarkable — discussed the efficacy or lack of efficacy of the vaccines, except only to attribute conclusions to the Secretary or the lawyers. The Court usually FINDS things, not quotes the parties or their lawyers.

If I had to choose one word to describe the language and tone of both opinions, it would be, “restrained.” It is almost like the decisions were written in order to offend the fewest number of folks.


Since I’ve been litigating in this space for almost a year now, I was looking to see how the Court handled one case in particular — and I was shocked when I didn’t find it. I tried searching the PDFs — nothing. I tried a different PDF viewer thinking that there might be a problem with my default one. Nope. I tried searching for a bunch of other stuff just to make sure search was working. Zip.

The Jacobson case has gone missing.

Jacobson v. Massachusetts — the only Supreme Court case that has previously discussed vaccine mandates, the case that has been cited, at length, in almost every single lower-court decision, has apparently vanished from the Earth.

It’s vanished from the Supreme Court, anyway. Neither of the two opinions mentions Jacobson — EVEN IN DISSENT. Not even in a footnote.

Why is this important? Because Jacobson held that the authority to coerce people to take vaccines comes from STATE POLICE POWERS. From the States. It’s a problem for both mandates. But it wasn’t used to deny the OSHA Mandate, and it wasn’t distinguished or overridden to support the CMS Mandate.

Where, oh where, has my Jacobson gone? Where, oh where, could it be?

I suppose this is a stealth way to override precedent by just ignoring it. Not a good look.


Regular readers will recall that when I predicted that the Court would uphold the CMS Mandate, it would rely on the fact that hospitals have already been requiring healthcare workers to take influenza vaccines. Well, this is what the Court said in its CMS opinion:

Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella. As the Secretary explained, these pre-existing state requirements are a major reason the agency has not previously adopted vaccine mandates as a condition of participation.

See? This is the slippery slope in action. We should have pushed back against vaccine mandates in hospitals ten years ago.

I know, I know! Don’t swamp the comments explaining how different the Covid injections are from all those other ‘real’ vaccines. I get it. I do. And I totally disagree with the Court’s reasoning in the CMS case, not least because it didn’t follow or even try to deal with the Jacobson precedent.


So what do we do now? My Disney and Florida Power & Light clients are super happy, understandably. All my healthcare clients are freaking out, understandably.

The first thing we have to do is see how the Biden Administration will react. This isn’t terrific timing for them. If they were smart, they’d put a hold on the CMS Mandate themselves, for two reasons. First, the Narrative 2.0 project kicked off AFTER these cases were at the Supreme Court. The mandate, and all its fallout, isn’t exactly consistent with the new narrative. So there’s that.

But second, all we hear about now are the “critical staffing shortages” in hospitals. This decision is going to spray kerosene on the staffing bonfire. CMS will have to do something; as it stands, uninjected employees are already too late, past the original deadline. They are due to be fired immediately. That’s a lot of nurses and doctors. Can they possibly do that during an Omicron surge, with hospitalizations still leaping forward and facilities already underwater?

Are they going to send military doctors to every hospital in the country? Are there even that many military doctors?

CMS paused its own mandate on December 1, after the Missouri decision. It will have to un-pause the mandate now. And probably, at least, revise the deadlines. What will it do? We wait to see.

After that, we will need some good, practical strategies for our fellow citizens who are in healthcare jobs and are under the mandate’s hanging Sword of Damocles. We’ll be working on that. Stay tuned.

Those are just my initial thoughts about all this. More to come.

Have a fantastic Friday and I’ll be back here tomorrow morning with more.


Help us spread optimism and hope!


Why Is the Supreme Court Disregarding Individual Rights?

Why Is the Supreme Court Disregarding Individual Rights?

YIKES! I think this is a very good piece, argument. I am not a legal expert by ANY stretch of the imagination – which C.S. Lewis claims is really important -but the logic here sounded pretty solid to me. Happy if you respond in the comments. mrossol

By Toby Rogers   January 22, 2022

We should all be grateful to the U.S. Supreme Court for granting a stay that blocks enforcement of the OSHA vaccine mandate and disappointed that they split the baby in half by allowing the vaccine mandate to continue for healthcare workers in facilities that receive funding from the Centers for Medicare and Medicaid Services (CMS). As the Babylon Bee noted, now “healthcare workers are the only people who can’t make decisions about their own health.”

What initially seemed like a heavyweight boxing match between two radically different worldviews was decided on narrow technical grounds and the larger Constitutional issues were mostly avoided. 

I understand why the Supreme Court wanted to make the narrowest possible ruling — they do not want to be seen as making law and they do not want to get too far out front on any issue lest they risk the credibility of the court. The problem with this approach is that if we are not going to debate the big issues at the Supreme Court, then where exactly are these debates going to take place? They are not happening in the media (completely captured), nor Congress (completely captured), nor within medical societies (completely captured). So how, as a society, are we supposed to come to clarity about a new and novel virus and how best to respond to it if we are never allowed to have a robust public debate about it in any venue? 

Here I walk through some of the big issues left unaddressed by the Supreme Court’s narrow rulings in these cases. 

No findings of fact and no Jacobson

Jeff Childers at Covid & Coffee wrote the best initial take on the U.S. Supreme Court’s decisions in the OSHA and CMS mandate cases. 

Childers notes that there were no real findings of fact — the three Democratic appointees gestured toward the claims submitted by OSHA and HHS and left it at that and the six Republican appointees did not make any attempt at determining the facts at all. This is very strange. Findings of fact are a standard part of any trial. And here we have a new, novel, and likely man-made virus; several vaccines that have never worked in humans before; and unprecedented vaccine failure and yet neither side wanted to discuss the facts!? In the highest court in the country? Even though one cannot make rational decisions about these matters in the absence of facts? We’ll return to this issue below. 

Childers also points out that there is no mention of Jacobson v. Massachusetts in either decision. Jacobson is the 1905 case regarding a state vaccine mandate that has been used incorrectly ever since to justify all sorts of heinous state actions including forced sterilization of poor women. See analysis from former NYU law professor and current President of Children’s Health Defense Mary Holland, Esq. (here) and (here) for further explanations of why Jacobson was wrongly decided and how it has been misinterpreted. 

Childers seems to suggest that the Democratic appointees did not want to cite Jacobson because that would acknowledge that this power rests with the states (not the federal government). Republican appointees may not have wanted to mention Jacobson because, well it’s not quite clear. Perhaps they think it was wrongly decided and want to overturn it but the court is hesitant to overturn precedent too often lest they be seen as activist and illegitimate — and they are likely to overturn precedent in the pending abortion decisions (Texas and Mississippi) so perhaps they are saving their powder for that battle. 

I want to add three important issues to the conversation:

A product under Emergency Use Authorization cannot be mandated

In the U.S., the FDA has granted Emergency Use Authorization for three coronavirus vaccines.

21 U.S. Code § 360bbb–3 clearly states that medical products under Emergency Use Authorization cannot be mandated and a federal district court has confirmed this

The FDA has only given so-called “full approval” to Pfizer’s Comirnaty coronavirus vaccine which is used in Europe and is not available in the U.S. 

Pfizer claims that the European and U.S. formulations of their coronavirus vaccines can be used interchangeably but the courts have rejected this assertion. 

If the Supreme Court wanted to rule on narrow technical grounds, it should have rejected the mandates because they clearly violate the rules in connection with Emergency Use Authorization of medical products. 

However, as I explain below, all vaccine mandates are unconstitutional, regardless of their FDA status. 

The Constitutional rights of the individual

Across two majority opinions, one concurring opinion, and three dissents (44 pages in all) there is no mention of the Constitutional rights of individuals. This is very strange. The question at hand was whether the federal government, acting through unelected bureaucratic agencies can force 84 million private sector workers and 10 million healthcare workers to have a sharp metal object plunged into their body that will inject a genetically modified substance that hijacks the RNA inside individual cells for an uncertain period of time with unknown short- and long-term health impacts. And not a single member of the Supreme Court had anything to say about the Constitutional rights of individuals? In a country built on the notion of individual freedoms? Really? What’s going on!?

It appears that the Democratic appointees to the court (Kagan, Sotomayor, and Breyer) did not want to acknowledge a constitutional right to privacy and bodily sovereignty because then they would have had to reject both mandates. As Naomi Wolf points out, a Constitutional right to privacy and bodily autonomy has been the bedrock principle of liberal jurisprudence for the last 50 years and so it is more than a little odd that the three liberal justices suddenly pretended that they had never heard of this idea. But worshipping the golden calf of vaccines has become the only issue in the Democratic imagination and so apparently all other principles be damned. When it comes to injecting substances into the peasants, Democrats want the federal government to be all-powerful, never mind what they said before about “My body, my choice.” 

Republican appointees to the court (Roberts, Alito, Thomas, Gorsuch, Kavanaugh, and Barrett) however do not want to acknowledge a Constitutional right to bodily sovereignty or privacy because they are likely to curtail such rights in their upcoming decisions in the two abortion cases (regarding Texas Senate Bill 8 and the Mississippi law that blocks abortions after 15 weeks of pregnancy). Said differently, regardless of how they might feel about individual rights in this case, when it comes to abortion, Republicans want the state to have the power to make these decisions rather than individuals.

It is not my intention here to weigh in on the abortion debate but rather to point out that no one on the court is looking out for our rights as individuals. I suppose one could argue that Thomas, Alito, and Gorsuch are at least aware of the fact that vaccines involve some risks and that individuals have rights — but their reasoning was indirect and between the lines (writing that one could not remove a vaccine at the end of the workday or that vaccination could not be undone rather than saying that individuals have sovereignty over their own bodies).

In these rulings none of the nine justices are being consistent in their judicial philosophy. 

This glaring omission of any discussion of individual liberties is apparent in the concurring opinion from Justice Gorsuch in the OSHA case (that was joined by Justices Thomas and Alito). He writes:

The central question we face today is: Who decides?… The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 states before us submit, that work belongs to state and local governments across the country and the people’s elected representatives in Congress.

Given this menu of options, I’m glad that Gorsuch (and 5 other justices) came down on the side of the states and Congress. But this is the wrong menu. Neither an administrative agency in Washington nor state and local governments and Congress should decide this matter. Vaccination is a matter that can only be decided by individuals weighing their potential individual risks and benefits. Mandatory one-size-fits-all medicine is, by definition, tyranny and savage barbarism because every individual body is unique. And no level of government has the right to trespass my body. This is not complicated and it is strange that no one on the court stood up for these fundamental individual rights. 

Arguments from authority and so-called experts are a logical fallacy. SCOTUS wants to sidestep this thorny problem but they should not

This is a return to the issue mentioned above about the absence of any real findings of fact in this case. It is very important and I have not heard others comments on it thus far. My argument has two steps to it:

1. The problem of deferring to institutions. It appears that the Supreme Court decided this case based on the institutions involved, not the Constitutional principles. In the OSHA case the majority noted that 27 states and a majority of the U.S. Senate were on record as opposing this workplace mandate. And in the CMS case, the majority (Roberts and Kavanaugh were in the majority on both cases) noted that the American Medical Association and the American Public Health Association were on record as supporting the mandate for healthcare workers and the plaintiffs were not a well-recognized institutional body. So it seems that they just weighed up the power of the various institutions in each case and gave the victory to the more powerful institutions. That is politics — not justice — and it is the wrong way to decide the case. 

2. The problem of deferring to experts. In their dissent in the OSHA case, Justices Breyer, Sotomayor, and Kagan speak to the question of “Who decides?” Writing about the Supreme Court they argue: 

Its Members are elected by, and accountable to, no one. And we “lack[] the background, competence, and expertise to assess” workplace health and safety issues. South Bay United Pentecostal Church, 590 U. S., at ___ (opinion of ROBERTS, C. J.) (slip op., at 2). When we are wise, we know enough to defer on matters like this one. When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions.

It is preposterous to claim that anyone at OSHA or CMS are “experts” on these matters because this is a new and novel virus (so it is unclear who has the correct answers at this point) and these agencies, like all bureaucracies in D.C., are captured by industry. 

But I want to make a larger point. It is not just Democrats who do this. Oh heavens me, I could not possibly decide such weighty scientific matters, let’s leave it to the experts is a standard flex by politicians of both political parties and judges across the country — and it is entirely wrong. 

Nothing in the Constitution supports this approach. The Seventh Amendment to the Constitution articulates the right to trial by jury. The founders of this country wanted legal matters decided by everyday citizens — as a check against corruption. The Constitution did not envision a society of technocrats making decisions on behalf of society. The founders were well aware of the fact that power corrupts everyone and so they returned decision-making on matters of fact to ordinary citizens. In a democracy, no one can side-step their individual responsibility to evaluate the evidence for themselves. If the matter is over the heads of U.S. Supreme Court Justices then it must be left to individuals to decide — rather than giving totalitarian powers to bureaucrats. 

But it’s more than that. From a scientific and medical perspective, institutions and “experts” tell you nothing about the data. It’s the wrong epistemology. Institutions and “experts” tell you about the politics surrounding the data, they do not necessarily tell you if the data is more likely to be correct than not. 

Respondents should have to make their case publicly in ways that everyone can understand and they should have to present their data for the entire society to comb through if they wish. The notion that we are going to contract out the findings of fact to unelected bureaucrats who are almost always captured by the pharmaceutical industry is an affront to democracy and entirely unscientific. It would be extremely beneficial for society for us to have these scientific debates out in the open — in the courtroom, in the digital public square, and in our living rooms — so that as a society we can grow, learn, and sort out fact from fiction. The idea of leaving these matters to captured technocrats has been catastrophic for public health and it must stop. 

Furthermore, it’s not like these justices even believe this flex themselves. The so-called Special Masters on the vaccine court include a former tax specialist, a military judge, and a sex crimes prosecutor — these people are not scientific experts — and yet they decide thousands of vaccine injury cases involving intricate matters of science and medicine. So on the one hand, the justices on the Supreme Court (and lots of elected officials) claim that they could not possibly decide weighty scientific matters and then they punt to people who know even less than them (corrupt bureaucrats or Special Masters) — entirely bypassing the system set up by our founders — ordinary citizens, on juries, using common sense and reason. 

It is time for the U.S. to return to the founding principles of individual liberty and trust in the common sense and reason of individual citizens. If you don’t believe in that then you don’t believe in democracy. 


The OSHA case now returns to the U.S. Court of Appeals for the Sixth Circuit. Some legal analysts think OSHA may withdraw the rule rather than continue with a case that it is expected to lose. 

The CMS case returns to the Fifth and Eighth Circuit courts where legal analysts believe that the challenges to the CMS mandate will be dismissed. 

But the enormous Constitutional issues remain. I think there is ample opportunity for the Fifth and/or Eighth Circuit courts to re-examine the government’s shoddy reasoning in the CMS case. I also think citizens should come together to fund new litigation to defend the Constitutional right to bodily autonomy for all Americans, including the healthcare workers who are under assault by the CMS rule right now. 

Both the OSHA and the CMS mandates are clearly unconstitutional. The First (freedom of speech), Fourth (freedom to be secure in my person…), Seventh (right to trial by jury), and Fourteenth (equal protection under the law) Amendments to the Constitution can all be used to strike down this totalitarian government overreach. Any honest examination of the scientific evidence will reveal that coronavirus shots do not work as claimed and the risks outweigh the benefits. If the courts are wise, they will leave these decisions up to individuals acting within their conscience as sovereign citizens.

Republished from the author’s Substack


  • Toby Rogers Toby Rogers has a Ph.D. in political economy from the University of Sydney in Australia and a Master of Public Policy degree from the University of California, Berkeley. His research focus is on regulatory capture and corruption in the pharmaceutical industry. Dr. Rogers does grassroots political organizing with medical freedom groups across the country working to stop the epidemic of chronic illness in children. He writes about the political economy of public health on Substack.

What the Senate Filibuster Assault Means

WSJ 1/22/2022

Washington wisdom once held that while Sens. Joe Manchin and Kyrsten Sinema were the public faces of Democratic reluctance to breaking the Senate filibuster, others in the caucus quietly supported the duo. But on Wednesday night, 48 out of 50 Senate Democrats voted to use the “nuclear option” in an attempt to overturn election laws in most states.

That means the partisan abolition of the Senate’s 60-vote requirement for most legislation is no longer an abstraction. It’s an institutional Democratic Party position—a trigger that Majority Leader Chuck Schumer has committed to pull as soon as he has 50 votes and a co-partisan as Vice President. Democrats may have failed to ram their legislation through this week, but they have changed the nature of the U.S. Senate merely by trying to make it a majoritarian body for the first time. The fallout should start in this year’s midterms in competitive states.


Mr. Schumer brought partisan voting-rules legislation to the floor Wednesday despite the insistence of Sens. Sinema and Manchin that they wouldn’t change Senate rules to allow it to pass with only 50 votes. Democrats then embarked on a flight of procedural fantasy, claiming they could prevail by demanding only a “talking filibuster”—a meaningless distinction as their version would still guarantee the legislation could be rammed through.

They lost 48 to 52, but the paucity of Democratic dissenters is astonishing given recent Senate history. Dianne Feinstein, the senior Senator from California, went along after defending the filibuster well into the new Congress. She said last June that she might scrap the filibuster if “democracy were in jeopardy,” but “I don’t see it being in jeopardy right now.”

Chris Coons, the Delaware Senator who cultivates a bipartisan reputation, also voted to destroy the filibuster. In 2017 he led a coalition of 32 Democrats declaring they are “united in their determination” to maintain it. Twenty-nine GOP Senators also signed Mr. Coons’s letter. That’s right: While only two Democrats still back the filibuster under Mr. Biden, more than half of the Republican caucus supported it as a guardrail on their own majority under Donald Trump.

Arizona Sen. Mark Kelly, who had been noncommittal on the issue, also fell in line, though he faces a competitive election this November. He likely fears a Democratic primary challenge, but his vote will put new issues at play in the general election. Now that he’s committed to torch Senate rules on a partisan basis, a simple Democratic majority could add states to the U.S. or pack the Supreme Court.

When rules constrain Senate partisanship, voters in swing states can view candidates as independent figures rather than partisan foot-soldiers. Now that changes: To elect even a 50-50 Senate with a Democratic President could be to authorize much of the progressive agenda.

This will be a hard perception to shake on the 2022 campaign trail for Maggie Hassan in New Hampshire and Michael Bennet in Colorado, both of whom also signed Mr. Coons’s 2017 letter, and Catherine Cortez Masto of Nevada. Raphael Warnock of Georgia benefited in his 2021 runoff election from Mr. Manchin’s 2020 promise that he wouldn’t eliminate the filibuster in a 50-50 Senate. Now voters need to keep in mind that Mr. Manchin’s commitment means nothing if Democrats pick up two seats in 2022.

As for Republicans, the next GOP Senate majority will now be under much more pressure to eliminate the filibuster as a pre-emptive procedural strike. Populist Senators will point to this week’s vote to say that Democrats are planning to change the rules as soon as they get back into power. GOP leader Mitch McConnell and other institutionalists will have more trouble talking them down.

The intellectuals pushing to kill the filibuster claim the Senate’s structure is biased against Democrats, and may lock them out of power for a decade. That claim is wildly exaggerated—weren’t Democrats eyeing a 53 or 54 seat majority in 2020? But if it were true, then it would be even more short-sighted to dismantle protections for the minority party.


Speaking of short-sighted, Sens. Bernie Sanders and Elizabeth Warren are already opening the door to primary challenges to Sens. Manchin and Sinema. Good luck keeping the seat with another candidate in West Virginia, where Mr. Trump won by 39 points. Progressives want to take revenge on a moderate Democrat by easing the path to GOP Senate majorities.

This week’s filibuster vote undermines checks and balances in the U.S. political system. With the rise of straight-ticket voting, Presidents are increasingly elected with congressional majorities. The limitations on what those majorities can do is rapidly attenuating, and if voters don’t send a contrary message, the result will be a combustible mix of greater polarization, partisan brinkmanship and heightened election stakes.