โ๏ธ Coffee & Covid โ Thursday, November 25, 2021 ๐ฆ SPECIAL THANKSGIVING EDITION ๐ฆ
A special holiday message and some deep-dive analysis into a few terrific developments. I explain why the new Florida exemption laws are NOT pre-empted by the federal mandates.
Surprise! How much do I love you guys? Enough to draft up an extra helping of C&C to celebrate our very special, very American holiday. As my Thanksgiving gift to you, a quick message and some thoughtful news analysis, a deeper dive into three big stories today โ including what may be the single most important judicial decision weโve seen so far.
๐ *A C&C THANKSGIVING MESSAGE* ๐
In the spirit of the First Thanksgiving, in the midst of a war, we yet have a lot of things to be thankful for. Here are mine.
First of all, I am very thankful for all of you, who are a terrific group of folks who seem to really like sarcastic optimism, a lot, and together form an Army of Davids for positive change.
I am also very thankful for Floridaโs Governor and the stateโs legislature, who are creating historic pushback against overreaching federal authority, and who saved a LOT of jobs last week. A journalist asked me yesterday if I thought there would be ripple effects throughout the rest of the country. I said, โyes.โ
I am thankful for my allied attorneys โ too many to mention โ and the brave doctors and researchers who have gone public during the pandemic at enormous personal risk and cost.
I am thankful for all the new local and national activists who have embraced learning a lot of new skills and putting themselves in the crosshairs with the DOJ and with cancel culture to speak out for whatโs right. I especially want to recognize everyone whoโs been hauled out of a school board meeting or a commission meeting just for speaking the truth.
I am thankful for the brave pastors who are, more and more, speaking out against whatโs happening and have embraced becoming wartime ministers.
Next to last, I am SO thankful for all my old and new friends whoโre so committed to the fight that theyโve trusted me, and made donations and signed up for recurring subscriptions, which in turn help many, many others. For example, I just represented Ascension employees through a significant injunction hearing and an historic oral ruling. The employees raised about $33K, but the total legal bills were over $100K. I did it anyway, of course, but Iโd be out of business fast at that rate without your support.
To save the rest of the states, we are going to need all the help we can get. Only if you can afford to, please consider whether now is the time youโre ready to commit to the C&C cause. If so, some options are here: https://www.coffeeandcovid.com/p/-learn-how-to-get-involved-
Finally, I am thankful to God and His Providence for getting us this far, giving us so many wins and so much hope, and for promising that all things ultimately work for good.
And for causing our enemies to fall into traps of their own making.
Happy Thanksgiving, Coffee & Covid people!
๐*COVID NEWS AND COMMENTARY* ๐
๐ฅ Since the Narrative is falling apart, they are starting to get super tricksy. Letโs play โspot the hypnotic logic errorโ in what UK Prime Minister and top Pharma sales rep Boris Johnson said yesterday. He said:
โThe double vaccination provides a LOT of protection against serious illness and death, but it doesnโt protect you against catching the disease and it doesnโt protect you from passing it on. So now is the time to get your booster.โ
First of all, Johnson is a liar. He lied using the word โso.โ I should know. Thatโs one of my favorite words.
But second, his statement is a dodgy bit of rhetorical sleight of hand using a mental trick to create a hypnotic implied promise that he can never be held accountable for.
The lie is Johnsonโs implication that boosters can stop โcatching the diseaseโ and โpassing it on.โ The way he slipped it by without you noticing was by chaining two unrelated sentences together using the word โso,โ which creates tension and makes your brain resolve that tension by adding a missing bit of logic. In logical terms, Johnson offered an initial premise and then a conclusion, without a necessary missing second premise. It should look like this:
Premise 1: the first two jabs fail to prevent spread of the disease
Premise 2: a booster shot DOES prevent spread of the disease โ MISSING
Conclusion: โsoโ you should get a booster shot
The word of conclusion โ โSoโ โ creates a logic vacuum, and your brain automatically supplies the missing second premise. Itโs a type of hypnosis. Another way to look at it is by rewriting Johnsonโs statement and adding the missing premise. The sentence in brackets, below, is what Johnson knew your brain would automatically fill in to resolve the logical tension created by the missing premise that is necessary for the word โsoโ to make any sense at all:
โโฆ it doesnโt protect you against catching the disease and it doesnโt protect you from passing it on. [BUT THE BOOSTERS DO.] So now is the time to get your booster.โ
See? For the word โsoโ to make any sense, boosters must solve the problem Johnson identified in the immediately preceding sentence. Since Johnson never actually SAYS that the boosters will stop the spread, he has cover of plausible deniability. That was your brain.
I guarantee you he spent a long time working on that sentence, no matter how casually he delivered it. But donโt fall for these kinds of tricks. This type of rhetorical hypnosis is what they fall back on when they donโt have the facts to support their Narrative.
The truth is, they have no reason at all to think boosters will stop the spread.
โSo.โ
๐ฅ According to the Israeli newspaper Haaretz, the expert health panel that advises Israelโs government, another Covid wave is coming. They also said vaccine effectiveness is waning and childrenโs vaccinations wonโt stop the pandemic. On Tuesday, Israel launched a new program to jab all its kids aged 5 to 11.
Professor Eran Segal, who gave a presentation on Tuesday to the government, argued that the level of immunity in Israel has actually FALLEN since November, as reflected in the rise in the number of new confirmed cases. โIn this reality, vaccines arenโt enough to stop the [coronavirus] wave, and we need to continue using all the effective methods that minimize infection without hurting the economy,โ a summary of the coronavirus cabinet meeting on Tuesday read.
Immunity is DROPPING. Injections canโt stop the waves. This wonโt end well.
๐ฅ Missouri citizens have a lot to be thankful for today. In a remarkable, strongly-worded opinion, the Cole County Circuit Court of Missouri just ended ALL the stateโs Covid measures. In Shannon v. Missouri Department of Health, the Court found that the Department of Healthโs regulations CANNOT โabolish representative government in the creation of public health laws,โ and CANNOT โauthorize closure of a school or assembly based on the unfettered opinion of an unelected official.โ
While weโve seen other favorable court decisions lately, this one is a true breakthrough. It moves the bar. The Court didnโt just find a technical reason to set aside the DOHโs emergency rules. Instead, the Court found that the ORIGINAL state statutes giving the DOH its emergency authority were themselves completely invalid, for four separate reasons, because the statutes:
1) violate constitutional separation of powers;
2) violate the stateโs administrative procedure act;
3) are inconsistent with other public health laws; and
4) violate constitutional equal protection.
The Missouri Court doesnโt think itโs particularly complicated. โ[DOH] regulations break our three-branch system of government in ways that a middle-school civics student would recognize, because they place the creation of orders or laws, and enforcement of those laws, into the hands of an unelected official.โ
Yes!! Weโve been ringing this bell since summer 2020.
The Court cited a 2020 Michigan Supreme Court case: โIt is incumbent on the courts to ensure decisions are made according to the rule of law, not hysteria โฆ One hopes that this great principle โ essential to any free society, including ours โ will not itself become yet another casualty of Covid-19.โ It looks like that great principle has NOT become a casualty.
The Court found that the Missouri emergency health statutes were constitutionally flawed because they create โdouble delegation.โ The judge said the state had delegated rulemaking power to the DOH, which then delegated โbroad rulemaking power to an unelected official.โ This type of double delegation, said the Court, โis an impermissible combination of legislative and administrative power.โ It also explained that the regulations โviolate the principle of separation of powers by unlawfully placing unguided and unbridled rulemaking power in the hands of a public official.โ
You donโt say.
The judge cited, among other cases, Floridaโs lawsuit against the CDCโs โconditional sailing order.โ Relying on the cited cases, he listed all the ways that the stateโs public health statutes violated separation of powers:
1) the statutes created โopen-ended discretionโa catch-all to permit naked lawmaking by bureaucrats;โ
2) the laws failed to provide any STANDARDS to guide local emergency orders;
3) the laws not only provided no standards, but they are โlimitless, standardless, and lack adequate legislative guidance;โ
4) the laws fail to โprovide any procedural safeguards for those aggrieved by the orders;โ and
5) they โcreate a system of statewide health governance that enables unelected officials to become accountable to no one.โ
I think he just described a biomedical dictatorship. The judge wrote that plaintiff Robinson had produced โample evidenceโ that local health supervisors used the emergency health laws to โexercise unbridled and unfettered personal authority to, in effect, legislate.โ
He described the whole disgusting mess. โLocal health directors have created generally applicable orders, both in writing and verbally, requiring individuals within their jurisdictions to wear masks, limit gathering sizes in peopleโs own homes, creating capacity restrictions, limiting usage of school and business facilities including tables, desks, and even lockers, mandating spacing between people, [and] ordering students be excluded from school via quarantine and isolation rules created by health directors based on masking or other criteria not adequatelyโ constrained by legal standards.
The Court held that the statutesโ authorization of local health directors to create and enforce their own orders, and take other โcontrol measuresโ were โunconstitutional and โฆ therefore invalid.โ
He didnโt hold back. He said โ[t]his system is entirely inconsistent with representative government and separation of powers and makes a mockery of our Missouri Constitution and the concept of separation of powers.โ
A mockery! Finally. A court said it.
The judge concluded by saying, โMissouriโs local health authorities have grown accustomed to issuing edicts and coercing compliance. It is far past time for this unconstitutional conduct to stop.โ
Happy Thanksgiving!
The Courtโs actual orders, what he then ordered various Missouri agencies to do as a result of his opinion, was the best part. The orders go on for two pages. Among other things, the judge instructed the Secretary of State to โremov[e] the invalid regulations from the registerโ โ which effectively deletes all the stateโs emergency public health statutes. He also ordered the Missouri DOH to โprovide a copy of this order to all local health authorities throughout Missouri, and to post it โฆ in locations where the same is made publicly available[.]โ Haha!
Then he ordered the Department of Health to pay all the plaintiffโs attorneyโs fees! A trifecta win.
It really is impossible to underestimate how important this ruling is. The combination of a smart judge with smart lawyers who litigated well has now provided a roadmap for other citizens to push back on the never-ending, mushrooming emergency orders in their own states. The reasoning is solid, persuasive, and should easily travel to other states.
We need to share the news of this order as far and wide as we can. I donโt say that very often.
๐ฅ Finally, for Florida employees, thereโs been a lot of talk about some employers who are saying they will defy the new laws, citing federal pre-emption by CMS or the Biden executive order (the OSHA mandate is currently stayed). They are wrong. Iโm going to explain why, and please feel free to share this with any attorneys in Florida thinking about how to push back against these irrational employers.
Iโd like to tip my hat to attorney Nick Whitney, who did the legal research on this for a case weโre working on.
To begin with, you need to understand there are two basic types of pre-emption. Pre-emption is the rule that a federal law can supersede a conflicting state law. The two basic types are โexpressโ and โimpliedโ pre-emption. Express pre-emption means that the federal law says โ explicitly โ that it supersedes and replaces any state law on the same subject. None of the Biden mandates say this. That means any pre-emption of the new Florida laws would have to be โimplied.โ
Under implied pre-emption, there are also two types: field and conflict pre-emption. Field pre-emption means the entire subject area โ the โfieldโ โ is reserved for federal law; only the federal government may create law in that โfield.โ Obviously this is not the governmentโs position. It probably wouldnโt be constitutional anyway, because public health has always traditionally been reserved to the statesโ police powers.
The other type, conflict pre-emption, requires a finding that it is IMPOSSIBLE to comply with both federal and state law, or that the state law somehow materially interferes with federal goals. But the Supreme Court has said there is a presumption that state laws are NOT pre-empted unless it is clear that they are. So we have to start by presuming that the new state exemption laws are valid.
Since all three mandates already recognize exemptions โ as they must, or theyโd be invalid for that reason โ itโs hard to say how the new Florida exemption laws interfere with the federal laws or make it impossible to comply with both. Any law firm that categorically says the new laws are pre-empted is wrong. The new laws are NOT pre-empted by the Biden mandates.
So.
I hope you and your family enjoy a joyful and rewarding Thanskgiving today. Donโt eat too much! Youโll regret it tomorrow. Extra coffee is okay though. See you tomorrow.
Join the C&C Army! https://www.coffeeandcovid.com/p/-learn-how-to-get-involved-
You can also find me on MeWe, mewe.com/i/coffee_and_covid.
Loving what the Missouri judge had to say, โMissouriโs local health authorities have grown accustomed to issuing edicts and coercing compliance. It is far past time for this unconstitutional conduct to stop.โ๐ฏ๐ช๐Happy Thanksgiving ๐ฆGod bless you, your family and the work that you are so diligently performing on our behalf ๐
Happy Thanksgiving! What a nice surprise. The MO decision is fantastic. Judges everywhere have had enough of this malarkey. As far as Florida's amazing new laws go, they are clever enough to fit in perfectly with the Biden mandates. They fill in the gap the EOs created when they said, "except for exceptions required by law." Biden forces companies to "have" mandates, and FL forces (and provides a framework for) the companies to approve "exceptions." And the net result is "everyone must get the shot except for the people who don't want to." Wonderful!