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Brief - Scotus
Full text
Nos. 21A244 & 21A247
444444444444444444444444444444444444444444
IN THE
Supreme Court of the United States
____________________
NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL., Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
ET AL., Respondents.
____________________
OHIO, ET AL., Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
ET AL., Respondents.
____________________
On Emergency Applications for Stay of Administrative Action
and Petition for Writ of Certiorari to
the United States Court of Appeals for the Sixth Circuit
____________________
Motion of Center for Medical Freedom, America’s Future, California
Constitutional Rights Foundation, U.S. Constitutional Rights Legal
Defense Fund, Eagle Forum, Eagle Forum Foundation, Downsize DC
Foundation, DownsizeDC.org, Virginia Freedom Keepers, Leadership
Institute, Intercessors for America, Restoring Liberty Action Committee,
and Virginia Delegate David LaRock, for Leave to File Attached Brief
Amicus Curiae in Support of Applicants; for Leave to File without 10-Days
Notice; and for Leave to File in Paper Format
____________________
GARY G. KREEP WILLIAM J. OLSON*
932 D Street, Ste. 1 JEREMIAH L. MORGAN
Ramona, CA 92065 ROBERT J. OLSON
Co-counsel for CCRF WILLIAM J. OLSON, P.C.
JOSEPH W. MILLER 370 Maple Ave. W., Ste. 4
P.O. Box 83440 Vienna, VA 22180
Fairbanks, AK 99708 (703) 356-5070
Co-counsel for RLAC wjo@mindspring.com
RICK BOYER Attorneys for Amici Curiae
P.O. Box 10953
Lynchburg, VA 24506 *Counsel of Record
Co-counsel for Amici Curiae December 30, 2021
444444444444444444444444444444444444444444
Amici curiae Center for Medical Freedom (a project of the Conservative Legal
Defense and Education Fund), America’s Future, California Constitutional Rights
Foundation, U.S. Constitutional Rights Legal Defense Fund, Eagle Forum, Eagle
Forum Foundation, Downsize DC Foundation, DownsizeDC.org, Virginia Freedom
Keepers, Leadership Institute, Intercessors for America, Restoring Liberty Action
Committee, and Virginia Delegate David LaRock respectfully move for leave to file the
attached amicus brief in support of Applicants’ applications for stay of respondents’
rule pending disposition of the petitions for review or petition for certiorari before
judgment and in support of the petition for writ of certiorari before judgment; to file
in unbound format on 8.5-by-11-inch paper; and to the extent leave is required, to file
without 10 days’ advance notice to the parties of amici’s intent to file. This motion and
brief are being filed before the court-ordered deadline of 4:00 pm, December 30, 2021,
to respond to the application and petition.
Petitioners have sought consent to the filing of an amicus brief in support of the
applications for stay and the petition for certiorari before judgment. Counsel for the
parties have either consented or stated they had no objection.
Although this Court’s Rules do not expressly provide for amicus briefs in support
of or in opposition to an application for stay, this Court previously has allowed them.
See, e.g., Trump v. International Refugee Assistance Project, 137 S. Ct. 2327 (June 27,
2017).
Amici organizations have a deep interest in protecting the constitutional checks
and balances established in the U.S. Constitution.
ii
In light of the expedited nature of this proceeding, amici respectfully request
leave to file in unbound format on 8.5-by-11-inch paper and, to the extent leave is
required, to file the brief without 10 days’ advance notice to the parties of amici’s
intent to file.
Therefore, amici respectfully request leave to file an amicus brief in support of
the application for stay of the administrative action and in support of the petition for
certiorari.
Respectfully submitted,
GARY G. KREEP WILLIAM J. OLSON*
932 D Street, Ste. 1 JEREMIAH L. MORGAN
Ramona, CA 92065 ROBERT J. OLSON
Co-counsel for CCRF WILLIAM J. OLSON, P.C.
JOSEPH W. MILLER 370 Maple Ave. W., Ste. 4
P.O. Box 83440 Vienna, VA 22180
Fairbanks, AK 99708 (703) 356-5070
Co-counsel for RLAC wjo@mindspring.com
RICK BOYER Attorneys for Amici Curiae
P.O. Box 10953
Lynchburg, VA 24506 *Counsel of Record
Co-counsel for Amici Curiae December 30, 2021
Nos. 21A244 & 21A247
444444444444444444444444444444444444444444
IN THE
Supreme Court of the United States
____________________
NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL., Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
ET AL., Respondents.
____________________
OHIO, ET AL., Applicants,
v.
DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION,
ET AL., Respondents.
____________________
On Emergency Applications for Stay of Administrative Action
and Petition for Writ of Certiorari to
the United States Court of Appeals for the Sixth Circuit
____________________
Brief Amicus Curiae of Center for Medical Freedom, America’s Future,
California Constitutional Rights Foundation, U.S. Constitutional Rights
Legal Defense Fund, Eagle Forum, Eagle Forum Foundation, Downsize DC
Foundation, DownsizeDC.org, Virginia Freedom Keepers, Leadership
Institute, Intercessors for America, Restoring Liberty Action Committee,
and Virginia Delegate David LaRock in Support of Applicants
____________________
GARY G. KREEP WILLIAM J. OLSON*
932 D Street, Ste 1 JEREMIAH L. MORGAN
Ramona, CA 92065 ROBERT J. OLSON
Co-counsel for CCRF WILLIAM J. OLSON, P.C.
JOSEPH W. MILLER 370 Maple Ave. W., Ste. 4
P.O. Box 83440 Vienna, VA 22180
Fairbanks, AK 99708 (703) 356-5070
Co-counsel for RLAC wjo@mindspring.com
RICK BOYER Attorneys for Amici Curiae
P.O. Box 10953
Lynchburg, VA 24506 *Counsel of Record
Co-counsel for Amici Curiae December 30, 2021
444444444444444444444444444444444444444444
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT
I. THE OSHA STATUTE WAS ENACTED AS AN EXERCISE OF THE COMMERCE
POWER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
II. JACOBSON V. MASSACHUSETTS OFFERS NO SUPPORT FOR THE OSHA VACCINE
MANDATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
III. THE U.S. CONSTITUTION GRANTS THE FEDERAL GOVERNMENT NO FEDERAL
POLICE POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IV. THE OSHA REGULATION IS PREDICATED ON A FALSE ASSUMPTION AND IS THUS
ARBITRARY AND CAPRICIOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
V. WHO IS RESPONSIBLE FOR PUBLIC HEALTH? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ii
TABLE OF AUTHORITIES
Page
CONSTITUTION
U.S. Constitution, Article I, Section 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S. Constitution, Article III, Section 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
STATUTES
29 U.S.C. §655(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
REGULATIONS
OSHA Vaccine Mandate (86 Fed. Reg. 61402) . . . . . . . . . . . . . . . . . . . . . . . 1, passim
P.L. 91-596, § 2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CASES
BST Holdings, L.L.C. v. OSHA, 2021 U.S. App. LEXIS 33698
(5th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bond v. United States, 572 U.S. 844 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Buck v. Bell, 274 U.S. 200 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Cohens v. Virginia, 19 U.S. 264 (1821) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Gibbons v. Ogden, 22 U.S. 1 (1824) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Jacobson v. Massachusetts, 197 U.S. 11 (1905) . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10
National Federation of Independent Business v. Sebelius,
567 U.S. 519 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 12
Roman Catholic Diocese v. Cuomo, 141 S. Ct. 63 (2020) . . . . . . . . . . . . . . . . . . . 9, 10
United States v. Lopez, 514 U.S. 549 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Morrison, 529 U.S. 598 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
MISCELLANEOUS
2018 SUSB Annual Data Tables by Establishment Industry, U.S. & states,
U.S. Census Bureau (last revised Oct. 8, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 5
C. Acharya, et al., “No Significant Difference in Viral Load Between Vaccinated and
Unvaccinated, Asymptomatic and Symptomatic Groups When Infected with
SARS-CoV-2 Delta Variant,” medRxiv (Sept. 29, 2021). . . . . . . . . . . . . . . . . . . 15
H. Alic, “Senate passes bill to nullify Biden’s vaccine mandate for employers,”
Washington Times (Dec. 8, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
S. Bhakdi & A. Burkhardt, “On COVID vaccines: why they cannot work, and
irrefutable evidence of their causative role in deaths after vaccination,” Doctors
for COVID Ethics (Dec. 15, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
“COVID-19 Vaccine Safety and Efficacy and the Urgent Need for Early Ambulatory
Therapy” Presentation at Calvary Chapel Chattanooga (Dec. 15, 2021) . . . . . 17
iii
D. Dale and T. Subramaniam, “Fact check: Biden makes false claims about
Covid-19, auto prices and other subjects at CNN town hall,” CNN
(July 22, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
“David E Martin, The Fauci / Covid-19 Dossier,” Principia Scientific International
(Nov. 10, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
“Dr Sucharit Bhakdi: Organs Of Dead Vaccinated Proves Auto Immune Attack
- 22/12/2021,” Bitchute (Dec. 24, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
R.F. Kennedy, Jr., The Real Anthony Fauci (Skyhorse: 2021) . . . . . . . . . . . . . . . . 17
S. Kirsch, “COVID pandemic: The 11 biggest lies” (Dec. 7, 2021) . . . . . . . . . . . . . . 17
J. Loffredo, “Fully Vaccinated Are COVID ‘Super-Spreaders,’ Says Inventor of
mRNA Technology,” The Defender (Oct. 12, 2021) . . . . . . . . . . . . . . . . . . . . 15, 16
R. W. Malone, M.D. M.S., “Mass Formation Psychosis” (Dec. 9, 2021) . . . . . . . . . 18
“Merriam-Webster Dictionary Quietly Changes Definition of ‘Vaccine’ to Include
COVID-19 mRNA Injection,” TheRedElephants.com (March 2, 2021) . . . . . . . 18
“National Business Employment Dynamics Data by Firm Size Class,”
U.S. Bureau of Labor Statistics (last modified Oct. 27, 2021). . . . . . . . . . . . . . . 5
Al. Nazaryan, “A ‘frustrated’ Biden lashes out at the unvaccinated as he announces
new plan to battle Delta variant,” MSN News (Sept. 9, 2021) . . . . . . . . . . . . . 13
T. Olson, “Biden says he agrees with Republican governors: There’s ‘no federal
solution’ to pandemic,” Fox News (Dec. 27, 2021) . . . . . . . . . . . . . . . . . . . . . . . 19
“Omicron Variant: What You Need to Know,” CDC (Dec. 20, 2021) . . . . . . . . . . . . 14
D. Rivkin & R. Alt, “Biden’s Lawless Vaccine Mandate,” Wall Street Journal
(Sept. 28, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21
Paul Craig Roberts, “Big Pharma Executive Admits the Covid ‘vaccine’ is Gene
Therapy,” Institute for Political Economy (Nov. 21, 2021). . . . . . . . . . . . . . . . . 18
A. Sherman, “Biden says that vaccinated people can’t spread COVID-19.
That’s not what CDC says,” PolitiFact (Dec. 22, 2021) . . . . . . . . . . . . . . . . . . . 13
A. Singanayagam, et al., “Community transmission and viral load kinetics
of the SARS-CoV-2 delta (B.1.617.2) variant in vaccinated and unvaccinated
individuals in the UK: a prospective, longitudinal, cohort study,” The Lancet
(Oct. 29, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
U.S. Department of Labor, Standard No. 1975-2: “Basis of Authority” . . . . . . . . . . 6
INTEREST OF THE AMICI CURIAE1
Center for Medical Freedom (a project of the Conservative Legal Defense and
Education Fund), America’s Future, California Constitutional Rights Foundation, U.S.
Constitutional Rights Legal Defense Fund, Eagle Forum, Eagle Forum Foundation,
Downsize DC Foundation, Downsize DC.org, Virginia Freedom Keepers, Leadership
Institute, and Intercessors for America are nonprofit educational and legal
organizations, exempt from federal income tax under IRC sections 501(c)(3) or
501(c)(4). Restoring Liberty Action Committee is an educational organization.
Virginia Delegate David LaRock is a member of the Virginia House of Delegates.
Amici organizations were established, inter alia, for the purpose of participating in the
public policy process, including conducting research, and informing and educating the
public on the proper construction of state and federal constitutions, as well as statutes
related to the rights of citizens, and defending human and civil rights secured by law.
Virginia Delegate David LaRock has represented the 33rd district in the Virginia House
of Delegates since 2014.
STATEMENT OF THE CASE
On November 5, 2021, the Occupational Safety and Health Administration
(“OSHA”) published an “Interim Final Rule; Request for Comments,” entitled
“COVID–19 Vaccination and Testing; Emergency Temporary Standard.” 86 Fed. Reg.
1
It is hereby certified that counsel for Applicants and for Respondents have consented
to the filing of this brief; that no counsel for a party authored this brief in whole or in
part; and that no person other than these amici curiae, their members, or their counsel
made a monetary contribution to its preparation or submission.
2
61402 (Nov. 5, 2021) (“OSHA Vaccine Mandate”).2 The OSHA Vaccine Mandate
purports to enact an “emergency temporary standard,” pursuant to 29 U.S.C.
§655(c)(1). The OSHA Vaccine Mandate asserts two main purposes. It alleges that
“many employees in the U.S. who are not fully vaccinated against COVID-19 face grave
danger from exposure to SARS-CoV-2 in the workplace,” and “unvaccinated workers
are much more likely to ... transmit COVID–19 in the workplace than vaccinated
workers.” Id. at 61403.3 To that end, the OSHA Vaccine Mandate demands that
“[c]overed employers must develop, implement, and enforce a mandatory COVID-19
vaccination policy, with an exception for employers that instead adopt a policy
requiring employees to either get vaccinated or elect to undergo regular COVID-19
testing and wear a face covering at work in lieu of vaccination.” Id. at 61402.
Although enacted as an “emergency temporary standard,” OSHA claims that “it also
serves as a proposal ... for a final standard.” Id. at 61403.
The OSHA Vaccine Mandate “applies to employers with a total of 100 or more
employees at any time the standard is in effect,” and may in the future be applied to
employers with fewer than 100 employees. Id. at 61403. Accordingly, OSHA has also
sought comment from “[e]mployers with fewer than 100 employees” in order “to
2
https://www.govinfo.gov/content/pkg/FR-2021-11-05/pdf/2021-23643.pdf.
3
At the same time that OSHA touts vaccination as “effectively protect[ing] vaccinated
individuals against severe illness and death from COVID-19,” the OSHA Vaccine
Mandate denies the superior protection of natural immunity, claiming that “workers
who have been infected with COVID-19 but have not been fully vaccinated still face a
grave danger from workplace exposure to SARS-CoV-2.” Id. at 61403.
3
determine whether to adjust the scope of the ETS to address smaller employers in the
future.” Id.
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit upheld a
district court preliminary injunction against OSHA’s enforcement of the Vaccine
Mandate. Speaking for the court, Judge Engelhardt stated that:
[w]e begin by stating the obvious. The Occupational Safety and Health
Act, which created OSHA, was enacted by Congress to assure Americans
“safe and healthful working conditions and to preserve our human
resources.” ... It was not — and likely could not be, under the Commerce
Clause and nondelegation doctrine — intended to authorize a workplace
safety administration in the deep recesses of the federal bureaucracy to
make sweeping pronouncements on matters of public health
affecting every member of society in the profoundest of ways.
[BST Holdings, L.L.C. v. OSHA, No. 21-60845, 2021 U.S. App. LEXIS
33698, at *8 (5th Cir. 2021) (emphasis added).]
As there were numerous petitions for review that were filed against the OSHA
Vaccine Mandate, the United States Judicial Panel on Multidistrict Litigation
consolidated the petitions and assigned them to the U.S. Court of Appeals for the Sixth
Circuit on November 16, 2021. On December 17, 2021, the Sixth Circuit granted the
government’s motion to dissolve the Fifth Circuit’s stay, which resulted in the
petitioners filing the various applications for stay and petitions for certiorari with this
Court.
STATEMENT
The OSHA Vaccine Mandate is exactly what the Framers most feared when they
established the federal government: a raw exercise of arbitrary power. In issuing this
mandate at the direction of President Biden, OSHA exercised powers that it does not
4
have. Neither does any other component of the federal government have the authority
to issue such directives. Not even a bill passed by the House and Senate and signed
by the President could lawfully authorize such a mandate. Accepting any drug into
one’s body is a personal decision. Although state government has a modicum of
authority on public health matters as part of its police powers, no such directive is
within the limited powers of the federal government.
The ability to make one’s own medical decisions represents one of the basic,
natural, and fundamental choices that Americans can make, choosing how best to
protect their health, free from federal government oversight or interference.
Demanding that every American bend his knee to decisions being imposed by federal
bureaucrats, OSHA’s paternalistic Vaccine Mandate intrudes into an area of our lives
in which no government has authority.
SUMMARY OF ARGUMENT
The federal government possesses only the few and limited powers set out in the
U.S. Constitution. None of those powers give the federal government a general police
power to order mandatory vaccines. The federal government has no other source of
authority, such as the commerce power, to command decisions to refuse healthcare.
If the OSHA Vaccine Mandate is upheld, it would be difficult to envision a natural
right which the government could not undermine.
5
More than two-thirds of all American workers are employed by businesses with 100
or more employees.4 And, the OSHA regulation indicated the agency’s desire to expand
the mandate to smaller numbers of employees as well to capture many or most of the
remaining third. Currently, most of these individuals can go to work, make a living,
take care of their family, and live in peace. Under the OSHA regulation, these
individuals can either (I) be administered a drug over their objection, or (ii) resign or
be fired at great personal and familial cost.
Congress enacted the OSHA law pursuant to its authority under the Commerce
Clause, but that constitutional provision provides no authority for OSHA to impose a
broadscale COVID vaccination mandate. See Section I. This Court’s 1905 decision in
Jacobson regarding a different vaccination mandate provides no endorsement of
OSHA’s vaccine mandate. See Section II. The federal government has no plenary
police power under the Constitution to impose the vaccine mandate, even if the OSHA
law could be read as providing OSHA that authority. See Section III. Even if
authorized under the Constitution and the OSHA law, the OSHA vaccine mandate is
arbitrary and capricious as its factual predicate is flawed. See Section IV. It is up to
the States, under the federal constitutional structure, to determine the health and
safety of their citizens. See Section V.
4
In 2018, firms with over 100 employees had approximately 88 million employees of
a total of 131 million employees, or 67.2 percent of the total. See 2018 SUSB Annual
Data Tables by Establishment Industry, U.S. & states, U.S. Census Bureau (last
revised Oct. 8, 2021). See also “National Business Employment Dynamics Data by
Firm Size Class,” U.S. Bureau of Labor Statistics (last modified Oct. 27, 2021).
6
ARGUMENT
I. THE OSHA STATUTE WAS ENACTED AS AN EXERCISE OF THE
COMMERCE POWER.
The Williams-Steiger Occupational Safety and Health Act of 1970 was enacted as
an exercise of the commerce power:
The Congress declares it to be its purpose and policy, through the exercise of
its powers to regulate commerce among the several States and with foreign
nations and to provide for the general welfare, to assure so far as possible
every working man and woman in the Nation safe and healthful working
conditions and to preserve our human resources.... [P.L. 91-596, § 2(b)
(emphasis added).]
The website of the United States Department of Labor primarily sources OSHA’s
authority in the Commerce Clause:
The power of Congress to regulate employment conditions under the
Williams-Steiger Occupational Safety and Health Act of 1970, is derived
mainly from the Commerce Clause of the Constitution. (Sec. 2(b), Public
Law 91-596; U.S. Constitution, Art. I, Sec. 8, Cl. 3; “United States v. Darby,”
312 U.S. 100.) [U.S. Department of Labor, Standard No. 1975-2: “Basis of
Authority” (emphasis added).]
That website describes the Commerce power in the broadest possible manner:
The reach of the Commerce Clause extends beyond Federal regulation of
the channels and instrumentalities of interstate commerce so as to empower
Congress to regulate conditions or activities which affect commerce even
though the activity or condition may itself not be commerce and may be
purely intrastate in character. (“Gibbons v. Ogden,” 9 Wheat. 1, 195; “United
States v. Darby,” supra; “Wickard v. Filburn, 317 U.S. 111, 117; and “Perez v.
United States,” 91 S. Ct. 1357 (1971).).... [T]he commerce power is plenary and
has no restrictions placed on it except specific constitutional prohibitions and
those restrictions Congress, itself, places on it. (“United States v. Wrightwood
Dairy Co.,” 315 U.S. 110; and “United States v. Darby,” supra.) [Id. (emphasis
added).]
7
Without pausing to challenge these expansive assertions of authority under the
commerce power, and even if an individual’s decision to receive a drug into his body
qualifies as interstate commerce, the vaccine mandate is not an exercise of the power
to regulate commerce. The challenged action purports to regulate the absence of
commerce.
National Federation of Independent Business v. Sebelius (“NFIB”) 567 U.S. 519
(2012), provides strong modern authority refuting any OSHA authority to implement
a vaccine mandate. The decision written by Chief Justice John Roberts offers strong
arguments against use of the Commerce Clause as a justification for a vaccine
mandate, having held that the federal government may not compel economic
activity under the Commerce Clause:
Construing the Commerce Clause to permit Congress to regulate individuals
precisely because they are doing nothing would open a new and potentially
vast domain to congressional authority. Every day individuals do not do an
infinite number of things. In some cases they decide not to do something; in
others they simply fail to do it. Allowing Congress to justify federal regulation
by pointing to the effect of inaction on commerce would bring countless
decisions an individual could potentially make within the scope of federal
regulation, and — under the Government’s theory — empower Congress to
make those decisions for him. [NFIB at 552 (emphasis added).]
However, the NFIB decision expressly denied that the federal government has the
power to override individual medical decisions in order to protect “society.”
People, for reasons of their own, often fail to do things that would be
good for them or good for society. Those failures — joined with the similar
failures of others — can readily have a substantial effect on interstate
commerce. Under the Government’s logic, that authorizes Congress to use
its commerce power to compel citizens to act as the Government would
have them act.... [Id. at 554 (emphasis added).]
8
Chief Justice Roberts warned about the damage to the nation if the government’s
assertion of the power to regulate inaction was adopted:
Accepting the Government’s theory would give Congress the same license to
regulate what we do not do, fundamentally changing the relation between
the citizen and the Federal Government.... The Framers gave Congress the
power to regulate commerce, not to compel it.... [Id. at 555 (emphasis
added).]
Concluding its Commerce power analysis, Chief Justice Roberts then addressed —
and denied the existence of — a federal police power:
Everyone will likely participate in the markets for food, clothing,
transportation, shelter, or energy; that does not authorize Congress to direct
them to purchase particular products in those or other markets today. The
Commerce Clause is not a general license to regulate an individual from cradle
to grave.... Any police power to regulate individuals as such, as opposed to
their activities, remains vested in the States. [Id. at 557 (emphasis added).5]
II. JACOBSON V. MASSACHUSETTS OFFERS NO SUPPORT FOR THE
OSHA VACCINE MANDATE.
The OSHA proposed regulation relies on Jacobson v. Massachusetts, 197 U.S. 11
(1905), to defend its vaccine (drug) mandate. 86 Fed. Reg. at 61406. The OSHA
regulation first concedes that “OSHA’s authority to regulate employers is hedged by
constitutional considerations.” Id. at 61405. Yet despite this nod to the notion that the
federal government possesses only limited, enumerated powers, OSHA confidently
asserts its power to promulgate this mandate as if the authority to do so were beyond
question. On the contrary, never before in American history has any federal agency
5
The Jacobson Court also added that, where the congressional command to engage in
commerce cannot be supported under the Commerce Clause, it similarly cannot be
justified under the Necessary & Proper Clause. See NFIB at 560.
9
sought to claim the authority to impose a medical procedure upon American employees
generally, let alone so-called vaccines with rapidly waning benefits and proven risk of
death and permanent disability.
OSHA’s reliance on the Supreme Court’s decision in Jacobson v. Massachusetts is
misplaced. Jacobson was a challenge to a state-imposed vaccine mandate. Whatever
the continuing efficacy of Jacobson more than a century later, that ruling was
expressly limited to state and local governments purporting to exercise a police power,
providing no cover for the federal government’s actions here.
Moreover, Jacobson was decided in a prior era dominated by the widely accepted
“Science” of Eugenics, under which the Supreme Court later sanctioned state
sterilization of women, relying on the Jacobson holding. See Buck v. Bell, 274 U.S. 200
(1927). Contrary to OSHA’s claims here, Jacobson made clear that the police power
belongs only to states:
[t]he authority of the State to enact this statute is to be referred to what
is commonly called the police power — a power which the State did
not surrender when becoming a member of the Union under the
Constitution. Although this court has refrained from any attempt to
define the limits of that power, yet it has distinctly recognized the
authority of a State to enact quarantine laws and “health laws of every
description….” [Jacobson at 24-25 (emphasis added).]
A century later, in 2020, the U.S. Supreme Court granted a request by a Catholic
church and a Jewish synagogue to enjoin a New York rule limiting attendance at
religious services to no more than 25 persons during the purported zenith of COVID-
19. In his concurrence, Justice Gorsuch made clear that Jacobson provides no warrant
for extra-constitutional federal action due to a health emergency:
10
Jacobson didn’t seek to depart from normal legal rules during a pandemic, and
it supplies no precedent for doing so. Instead, Jacobson applied what would
become the traditional legal test associated with the right at issue — exactly
what the Court does today.... Why have some mistaken this Court’s modest
decision in Jacobson for a towering authority that overshadows the
Constitution during a pandemic? In the end, I can only surmise that much
of the answer lies in a particular judicial impulse to stay out of the way
in times of crisis. But if that impulse may be understandable or even
admirable in other circumstances, we may not shelter in place when the
Constitution is under attack. Things never go well when we do. [Roman
Catholic Diocese v. Cuomo, 141 S. Ct. 63, 70-71 (2020) (Gorsuch, J., concurring)
(emphasis added).]
It should be beyond debate that the duty of this Court to defend the Constitution
from attack applies even in times of crisis.
III. THE U.S. CONSTITUTION GRANTS THE FEDERAL GOVERNMENT NO
FEDERAL POLICE POWER.
In Jacobson, the U.S. Supreme Court addressed police powers of a state — not the
federal government, stating: “the police power of a State must be held to embrace,
at least, such reasonable regulations established directly by legislative enactment as
will protect the public health and the public safety.” Jacobson v. Massachusetts at
25 (emphasis added). The Supreme Court has never said anything even remotely
similar about the powers of the federal government. Indeed, “[i]n our federal
system, the National Government possesses only limited powers; the States and the
people retain the remainder. The States have broad authority to enact legislation for
the public good — what we have often called a ‘police power.’ United States v. Lopez,
514 U.S. 549, 567 (1995) (emphasis added).6 The Federal Government, by contrast, has
6
See also, United States v. Morrison, 529 U.S. 598, 618 n.8 (2000) (“the principle that
‘“[t]he Constitution created a Federal Government of limited powers,”’ while reserving
11
no such authority and ‘can exercise only the powers granted to it....’” Bond v. United
States, 572 U.S. 844, 854 (2014).
Although this Court has creatively found grounds to sanction the creation of as
many as 6,000 federal crimes, this was not what the Framers provided. There is no
general federal power to punish private behavior, such as through the creation of new
federal crimes. Long ago, this Court determined from the Constitution’s text that “[i]t
is clear, that Congress cannot punish felonies generally.” Cohens v. Virginia, 19 U.S.
264, 428 (1821). In fact, the Constitution specifically authorizes creation of only three
types of crimes, each of which involve uniquely federal concerns. First, “[t]o provide
for the Punishment of counterfeiting the Securities and current Coin of the United
States.” Art. I, Sec. 8, cl. 6 (emphasis added). Significantly, this express authority to
criminalize counterfeiting immediately follows the delegation of power to Congress to
“coin Money, regulate the Value thereof, and of foreign Coin,” making it clear that the
Framers did not believe the power to create a crime was implicit in each delegation of
power. Second, “[t]o define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations.” Art. I, Sec. 8, cl. 10 (emphasis added).
Third, “Congress shall have Power to declare the Punishment of Treason.” Art. III,
Sec. 3 (emphasis added). If Congress had a general warrant to punish and criminalize
private behavior, these provisions would have been unnecessary surplusage.
a generalized police power to the States, is deeply ingrained in our constitutional
history. New York [v. United States, 505 U.S. 144, 155 (1992)] (quoting Gregory v.
Ashcroft, supra, at 457)....” (Rehnquist, C.J.).
12
More specifically, courts have uniformly held that the Commerce Clause does not
convey a federal police power. See NFIB v. Sebelius, discussed supra. In Lopez, the
Court demonstrated clear limits on the broad sweep of the commerce power. There,
the Court struck down a federal ban on possession of firearms within 1,000 feet of a
school. The Court did so on the limited basis that mere possession of a firearm did not
constitute “commerce” and thus did not fall within the Commerce Clause ambit. The
Court refused to “convert congressional authority under the Commerce Clause to a
general police power of the sort retained by the States.” Id. at 567. In his concurrence,
Justice Thomas went further. He undertook a detailed analysis of the text and history
of the Commerce Clause and criticized those who would apply Wickard so broadly as
to create something of a federal police power:
Although we have supposedly applied the substantial effects test for the past
60 years, we always have rejected readings of the Commerce Clause and the
scope of federal power that would permit Congress to exercise a police power;
our cases are quite clear that there are real limits to federal power. ... on this
crucial point, the majority and [dissent] agree in principle: The Federal
Government has nothing approaching a police power. [Lopez at 584-85
(Thomas, J., concurring) (emphasis added).]
There is no constitutional waiver during pandemics. Only a few decades into our
federal experiment, in Gibbons v. Ogden, 22 U.S. 1 (1824), this Court stated that
“[i]nspection laws, quarantine laws, health laws of every description, as well as
laws for regulating the internal commerce of a State” are but a small part of an
“immense mass of legislation ... not surrendered to the general government” by
the states. Id. at 203 (emphasis added).
13
IV. THE OSHA REGULATION IS PREDICATED ON A FALSE ASSUMPTION
AND IS THUS ARBITRARY AND CAPRICIOUS.
Even if the federal government had a police power, which Sections I to III argue
that it does not, the OSHA mandate is arbitrary and capricious, and worse, as it is
based entirely on a false assumption about COVID-19.
OSHA was ordered to implement its vaccine mandate by a frustrated President
Biden,7 whose opinion about the efficacy of the vaccine has been rejected even by his
own Centers for Disease Control and Prevention (“CDC”). Just two weeks ago,
President Biden assured the American people: people vaccinated for COVID-19 “do
not spread the disease to anyone else.” Even PolitiFact was forced to rate this
statement “Mostly False,” in a headline that asserts: “That’s not what CDC says.”8
President Biden’s statement defending vaccine mandates was extraordinary:
“This is a pandemic of the unvaccinated,” Biden said in the full interview. “The
unvaccinated. Not the vaccinated, the unvaccinated. That’s the problem.
Everybody talks about freedom and not to have a shot or have a test. Well
guess what? How about patriotism? How about making sure that you’re
vaccinated, so you do not spread the disease to anyone else.” [Id.
(emphasis added)]
7
President Biden directed OSHA to implement its regulation some weeks after
expressing his frustration that efforts to encourage voluntary vaccination had not
achieved the ever-evolving government goals. See, e.g., Al. Nazaryan, “A ‘frustrated’
Biden lashes out at the unvaccinated as he announces new plan to battle Delta
variant,” MSN News (Sept. 9, 2021).
8
A. Sherman, “Biden says that vaccinated people can’t spread COVID-19. That’s not
what CDC says,” PolitiFact (Dec. 22, 2021).
14
The fact that vaccinated persons can spread the disease is now so widespread that
even the CDC shortly thereafter was compelled to post the following correction to its
website:
CDC expects that anyone with Omicron infection can spread the virus to
others, even if they are vaccinated or don’t have symptoms. [“Omicron
Variant: What You Need to Know,” CDC (Dec. 20, 2021) (emphasis added).]
While the CDC has recanted the President’s position, apparently the word has not
yet reached OSHA, which is sticking with the President’s original position, regardless
of the facts. In fact, supportive facts have been difficult to come by. So many of the
“facts” communicated by the President and much of the rest of the federal government
about the COVID-19 virus have been erroneous, if not fabricated. Consider President
Biden’s famous defense of vaccines at a CNN Town Hall where he strung together no
fewer than four falsehoods, saying “you’re”: [i] “not going to get COVID if you have
these vaccinations;” [ii] “not going to be hospitalized;” [iii] “not going to die;” and
[iv] “not going to be in the ICU Unit.” D. Dale and T. Subramaniam, “Fact check:
Biden makes false claims about Covid-19, auto prices and other subjects at CNN town
hall,” CNN (July 22, 2021). Here, even notoriously pro-Biden CNN host Anderson
Cooper and others were forced to call out the President on these fabrications.
The OSHA notice asserts: “unvaccinated workers are much more likely to
contract and transmit COVID-19 in the workplace than vaccinated workers.” 86 Fed.
Reg. 61403 (emphasis added). This factual assertion does not withstand scrutiny. It
is either a mistake or a fabrication.
15
Although the CDC has only conceded that the vaccinated can spread the virus,
that statement leaves open the possibility that the vaccinated are less likely to spread
the virus. However, this is false. Recent medical research has demonstrated that the
unvaccinated are no more likely to spread COVID-19 than the vaccinated. See, e.g.,
A. Singanayagam, et al., “Community transmission and viral load kinetics of the
SARS-CoV-2 delta (B.1.617.2) variant in vaccinated and unvaccinated individuals in
the UK: a prospective, longitudinal, cohort study,” The Lancet (Oct. 29, 2021) (“[F]ully
vaccinated individuals with breakthrough infections have peak viral load similar to
unvaccinated cases and can efficiently transmit infection in household settings,
including to fully vaccinated contacts.” C. Acharya, et al., “No Significant Difference
in Viral Load Between Vaccinated and Unvaccinated, Asymptomatic and Symptomatic
Groups When Infected with SARS-CoV-2 Delta Variant,” medRxiv (Sept. 29, 2021)
(“We found no significant difference in cycle threshold values between vaccinated and
unvaccinated, asymptomatic and symptomatic groups infected with SARS-CoV-2
Delta.”).
Even more shockingly, Dr. Robert W. Malone, the inventor of the mRNA vaccine,
has explained that since vaccinated people have fewer symptoms than the
unvaccinated, but are fully able to spread the virus, the vaccinated will be more likely
to be at work, and thus more likely to spread the virus, than the unvaccinated. Thus,
the vaccinated are the true super-spreaders of the virus. See e.g., J. Loffredo, “Fully
Vaccinated Are COVID ‘Super-Spreaders,’ Says Inventor of mRNA Technology,” The
Defender (Oct. 12, 2021) (“If you consider the scientific fact that vaccinated people have
16
less symptoms than the unvaccinated, but can still easily spread disease, consider your
fellow vaccinated worker, whose unvaccinated son brought the disease home and gave
it to him.… He might not have any symptoms … but he’ll definitely be producing the
virus. And he’s going to say, hey, I can go to work today. But he’s going to be spreading
the virus like crazy.”).
Therefore, based on the current state of “science,” an OSHA regulation that limited
the access of vaccinated persons to the workplace would make more sense than the rule
it promulgated. In any event, together, these medical facts completely undermine the
rationale for the OSHA Vaccine Mandate.
While these amici leave to others the responsibility to show that these vaccines are
exceedingly dangerous, one irrefutable piece of evidence has been released during the
pendency of these challenges. Until recently, few autopsies had been performed on
COVID-19 and COVID-19 vaccinated patients, and now we know why. The authors
of a recent paper autopsied 15 patients who died from seven days to six months after
receiving the COVID shot and discovered that, in 14 of the 15 patients, there was
widespread evidence of the body attacking itself, something that had never been seen
before. See S. Bhakdi & A. Burkhardt, “On COVID vaccines: why they cannot work,
and irrefutable evidence of their causative role in deaths after vaccination,” Doctors for
COVID Ethics (Dec. 15, 2021) (“Histopathologic analysis show clear evidence of
vaccine-induced autoimmune-like pathology in multiple organs. That myriad adverse
events deriving from such auto-attack processes must be expected to very frequently
occur in all individuals, particularly following booster injections, is self-evident.
17
Beyond any doubt, injection of gene-based COVID-19 vaccines places lives under
threat of illness and death. We note that both mRNA and vector-based vaccines are
represented among these cases, as are all four major manufacturers.” (Emphasis
added).) Even more recently, a video explaining and updating this study has been
posted: “Dr Sucharit Bhakdi: Organs Of Dead Vaccinated Proves Auto Immune Attack
- 22/12/2021,” Bitchute (Dec. 24, 2021).
This study of autopsies is not an outlier. World renowned Internist and
Cardiologist Peter A. McCullough, M.D., MPH, FACC, FAHA, FASN, FNKE, FNLA,
FCRSA, one of the most published physicians in the nation, has exposed the concerted
effort to distort information about the risks and benefits of the COVID-19 vaccine. See,
e.g., “COVID-19 Vaccine Safety and Efficacy and the Urgent Need for Early
Ambulatory Therapy,” Presentation at Calvary Chapel Chattanooga (Dec. 15, 2021).
Scientist and entrepreneur Steve Kirsch, an inventor of the optical mouse and founder
of the COVID-19 Early Treatment Fund, catalogued what he believed to be the 11
biggest lies being perpetrated about COVID-19 and the COVID-19 vaccine. See S.
Kirsch, “COVID pandemic: The 11 biggest lies” (Dec. 7, 2021). A recent book by Robert
F. Kennedy, Jr. has literally blown the cover off the prevailing COVID vaccine
narrative. See R.F. Kennedy, Jr., The Real Anthony Fauci (Skyhorse: 2021). The
inventor of the mRNA vaccine, Robert Malone, has led the fight against the COVID-19
vaccines, describing the psychosis behind the COVID-19 narrative. See Robert W.
Malone, M.D., M.S., “Mass Formation Psychosis” (Dec. 9, 2021).
18
For a century, vaccines have involved the administration of a dead or attenuated
pathogen to trigger the body to develop an immunity. Until the dictionary definition
of the word “vaccine” was changed on February 5-6, 2021 to include the experimental
gene therapy used in all three COVID-19 shots, they would not have been considered
vaccines. See “Merriam-Webster Dictionary Quietly Changes Definition of ‘Vaccine’
to Include COVID-19 mRNA Injection,” TheRedElephants.com (Mar. 2, 2021). This
change in definition was believed to be necessary to “sell” the COVID-19 shots to the
public. Stefan Oelrich, President of Pharmaceuticals at Bayer, explained this
rhetorical device at the World Health Summit:
ULTIMATELY, the mRNA vaccines are an example for that sort of gene
therapy. I always like to say, if we had surveyed, two years ago, the
public,“would you be willing to take gene or cell therapy and inject it into your
body?” we probably would have had a 95 per cent refusal rate. I think this
pandemic has opened many people’s eyes to innovation in a way that was
maybe not possible before. [Paul Craig Roberts, “Big Pharma Executive
Admits the Covid ‘Vaccine’ is Gene Therapy,” Institute for Political Economy
(Nov. 21, 2021).]
For this reason, these amici refer to the COVID-19 “shot,” rather than the COVID-
19 vaccine. If American businesses were required to impose “gene therapy” or a “drug”
on their employees, there would be an even greater outcry by employers and employees
— but this is exactly what OSHA is requiring. This Court should not be fooled by Big
Pharma’s changing nomenclature because the COVID-19 shot is now being marketed
as a “vaccine.”
Despite every effort to “sell the vaccine” to the public and to suppress voices critical
of the COVID-19 shots, the people have been awakened and, fortunately are rapidly
19
turning away from the narrative with which they have been inundated by government,
Big Pharma, and the establishment press which Big Pharma’s commercials support.
With the threat of death and serious injury that the vaccines (drugs) pose to the
vaccinated, the OSHA vaccine mandate passes the stage of being unsupported,
reckless, arbitrary, and capricious, and can be seen to be inhumane, vicious, evil, and
believed by many to be even worse. The perpetrators of the COVID-19 shot should be
criminally investigated, not relied upon as spokesmen for true science.9
V. WHO IS RESPONSIBLE FOR PUBLIC HEALTH?
On December 27, 2021, President Biden finally threw up his hands during a call
with the Governors, admitting: “There is no federal solution. This gets solved at the
state level.”10 This admission may have been late in coming, but these amici agree —
the federal government should stand down and withdraw all mandates — especially
the OSHA mandate that it had no authority to issue. Failing that, this Court should
issue that stand down order itself, to protect the American people from a regulation
that are both unconstitutional and irrational by enjoining OSHA from proceeding to
implement this regulation pending review.
9
University of Virginia’s David Martin, Ph.D. has assembled what he terms “The
Fauci/Covid-19 Dossier” demonstrating that the Department of Health and Human
Services had funded efforts to enhance coronaviruses between 1999 and 2002, before
SARS was detected in humans, in the form of an indictment that he believes should be
brought. See, e.g., “David E Martin, The Fauci / Covid-19 Dossier,” Principia Scientific
International, (Nov. 10, 2021).
10
T. Olson, “Biden says he agrees with Republican governors: There’s ‘no federal
solution’ to pandemic,” Fox News (Dec. 27, 2021).
20
The unconstitutionality of the OSHA mandate is increasingly obvious. Senate
Minority Leader Mitch McConnell (R-KY) recently explained: “‘Elites in Washington
cannot micromanage citizens’ personal choices without a legitimate basis in law and
the Constitution.’” H. Alic, “Senate passes bill to nullify Biden’s vaccine mandate for
employers,” Washington Times (Dec. 8, 2021). Even if the federal government had the
power to impose the mandate, Congress is not pleased that OSHA usurped legislative
powers with this mandate. On December 8, 2021, the deeply-divided U.S. Senate
invoked the Congressional Review Act to negate the OSHA regulations by a vote of 52-
48, with all Republicans being joined by Joe Manchin (D-WV) and Jon Tester (D-MT).
On that date, the Washington Times reported that: “At the moment, there are 213
signatures — only five short of the number needed to force the bill onto the House
floor.” Id.
These amici leave to others the obvious Separation of Powers and Administrative
Procedure Act problems with the OSHA regulation, except to point out that it is
significant that large swaths of the business community are resisting this action — and
the objections are not singular, but multitudinous. A recent op-ed in the Wall Street
Journal summarizes these concerns:
The Occupational Safety and Health Act of 1970 authorizes OSHA to enact
rules that are “reasonably necessary or appropriate to provide safe or healthful
employment and places of employment.” But the Biden mandate is
unreasonably and unnecessarily broad. As announced, it applies to all
employees, even those who work at home, as millions have done during the
pandemic.... It’s overbroad in another way: Previous Covid infection doesn’t
excuse employees from the vaccine requirement.... Another concern is that the
administration’s interpretation of the OSHA statutory language presents a
“delegation” problem.... Additional problems arise from the administration’s
21
urgency.... [D. Rivkin & R. Alt, “Biden’s Lawless Vaccine Mandate,” Wall
Street Journal (Sept. 28, 2021).]
The op-ed concludes: “White House chief of staff Ron Klain retweeted a journalist’s
comment that ‘OSHA doing this vaxx mandate as an emergency safety rule is the
ultimate work around for the Federal govt to require vaccinations....’” Id. This tactic
should not be permitted.
CONCLUSION
Amici urge this Court to reimpose the injunction on OSHA’s regulation, before
even more Americans are harmed, while awaiting a final resolution of this challenge
to OSHA’s unconstitutional and ultra vires mandate that employees submit to an
experimental and highly dangerous gene therapy being falsely marketed as a
traditional “vaccine.”.
Respectfully submitted,
GARY G. KREEP WILLIAM J. OLSON*
932 D Street, Ste. 1 JEREMIAH L. MORGAN
Ramona, CA 92065 ROBERT J. OLSON
Co-counsel for CCRF WILLIAM J. OLSON, P.C.
JOSEPH W. MILLER 370 Maple Ave. W., Ste. 4
P.O. Box 83440 Vienna, VA 22180
Fairbanks, AK 99708 (703) 356-5070
Co-counsel for RLAC wjo@mindspring.com
RICK BOYER Attorneys for Amici Curiae
P.O. Box 10953
Lynchburg, VA 24506 *Counsel of Record
Co-counsel for Amici Curiae December 30, 2021
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