☕️ Coffee & Covid ☙ Thursday, November 25, 2021 🦃 SPECIAL THANKSGIVING EDITION 🦠
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 — including what may be the single most important judicial decision we’ve seen so far.
🗞 *A C&C THANKSGIVING MESSAGE* 🗞
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 Florida’s Governor and the state’s 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, “yes.”
I am thankful for my allied attorneys — too many to mention — 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 what’s right. I especially want to recognize everyone who’s 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 what’s happening and have embraced becoming wartime ministers.
Next to last, I am SO thankful for all my old and new friends who’re so committed to the fight that they’ve 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 I’d 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 you’re 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!
🗞*COVID NEWS AND COMMENTARY* 🗞
🔥 Since the Narrative is falling apart, they are starting to get super tricksy. Let’s play “spot the hypnotic logic error” in what UK Prime Minister and top Pharma sales rep Boris Johnson said yesterday. He said:
“The double vaccination provides a LOT of protection against serious illness and death, but it doesn’t protect you against catching the disease and it doesn’t protect you from passing it on. So now is the time to get your booster.”
First of all, Johnson is a liar. He lied using the word “so.” I should know. That’s 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 Johnson’s implication that boosters can stop “catching the disease” and “passing it on.” The way he slipped it by without you noticing was by chaining two unrelated sentences together using the word “so,” 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 ← MISSING
Conclusion: “so” you should get a booster shot
The word of conclusion — “So” — creates a logic vacuum, and your brain automatically supplies the missing second premise. It’s a type of hypnosis. Another way to look at it is by rewriting Johnson’s 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 “so” to make any sense at all:
“… it doesn’t protect you against catching the disease and it doesn’t protect you from passing it on. [BUT THE BOOSTERS DO.] So now is the time to get your booster.”
See? For the word “so” 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 don’t fall for these kinds of tricks. This type of rhetorical hypnosis is what they fall back on when they don’t have the facts to support their Narrative.
The truth is, they have no reason at all to think boosters will stop the spread.
🔥 According to the Israeli newspaper Haaretz, the expert health panel that advises Israel’s government, another Covid wave is coming. They also said vaccine effectiveness is waning and children’s vaccinations won’t 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. “In this reality, vaccines aren’t enough to stop the [coronavirus] wave, and we need to continue using all the effective methods that minimize infection without hurting the economy,” a summary of the coronavirus cabinet meeting on Tuesday read.
Immunity is DROPPING. Injections can’t stop the waves. This won’t end well.
🔥 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 state’s Covid measures. In Shannon v. Missouri Department of Health, the Court found that the Department of Health’s regulations CANNOT “abolish representative government in the creation of public health laws,” and CANNOT “authorize closure of a school or assembly based on the unfettered opinion of an unelected official.”
While we’ve seen other favorable court decisions lately, this one is a true breakthrough. It moves the bar. The Court didn’t just find a technical reason to set aside the DOH’s 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 state’s administrative procedure act;
3) are inconsistent with other public health laws; and
4) violate constitutional equal protection.
The Missouri Court doesn’t think it’s particularly complicated. “[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.”
Yes!! We’ve been ringing this bell since summer 2020.
The Court cited a 2020 Michigan Supreme Court case: “It is incumbent on the courts to ensure decisions are made according to the rule of law, not hysteria … One hopes that this great principle — essential to any free society, including ours — will not itself become yet another casualty of Covid-19.” 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 “double delegation.” The judge said the state had delegated rulemaking power to the DOH, which then delegated “broad rulemaking power to an unelected official.” This type of double delegation, said the Court, “is an impermissible combination of legislative and administrative power.” It also explained that the regulations “violate the principle of separation of powers by unlawfully placing unguided and unbridled rulemaking power in the hands of a public official.”
You don’t say.
The judge cited, among other cases, Florida’s lawsuit against the CDC’s “conditional sailing order.” Relying on the cited cases, he listed all the ways that the state’s public health statutes violated separation of powers:
1) the statutes created “open-ended discretion—a catch-all to permit naked lawmaking by bureaucrats;”
2) the laws failed to provide any STANDARDS to guide local emergency orders;
3) the laws not only provided no standards, but they are “limitless, standardless, and lack adequate legislative guidance;”
4) the laws fail to “provide any procedural safeguards for those aggrieved by the orders;” and
5) they “create a system of statewide health governance that enables unelected officials to become accountable to no one.”
I think he just described a biomedical dictatorship. The judge wrote that plaintiff Robinson had produced “ample evidence” that local health supervisors used the emergency health laws to “exercise unbridled and unfettered personal authority to, in effect, legislate.”
He described the whole disgusting mess. “Local health directors have created generally applicable orders, both in writing and verbally, requiring individuals within their jurisdictions to wear masks, limit gathering sizes in people’s 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 adequately” constrained by legal standards.
The Court held that the statutes’ authorization of local health directors to create and enforce their own orders, and take other “control measures” were “unconstitutional and … therefore invalid.”
He didn’t hold back. He said “[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.”
A mockery! Finally. A court said it.
The judge concluded by saying, “Missouri’s local health authorities have grown accustomed to issuing edicts and coercing compliance. It is far past time for this unconstitutional conduct to stop.”
The Court’s 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 “remov[e] the invalid regulations from the register” — which effectively deletes all the state’s emergency public health statutes. He also ordered the Missouri DOH to “provide a copy of this order to all local health authorities throughout Missouri, and to post it … in locations where the same is made publicly available[.]” Haha!
Then he ordered the Department of Health to pay all the plaintiff’s attorney’s 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 don’t say that very often.
🔥 Finally, for Florida employees, there’s 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. I’m 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.
I’d like to tip my hat to attorney Nick Whitney, who did the legal research on this for a case we’re 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 “express” and “implied” pre-emption. Express pre-emption means that the federal law says — explicitly — 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 “implied.”
Under implied pre-emption, there are also two types: field and conflict pre-emption. Field pre-emption means the entire subject area — the “field” — is reserved for federal law; only the federal government may create law in that “field.” Obviously this is not the government’s position. It probably wouldn’t be constitutional anyway, because public health has always traditionally been reserved to the states’ 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 — as they must, or they’d be invalid for that reason — it’s 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.
I hope you and your family enjoy a joyful and rewarding Thanskgiving today. Don’t eat too much! You’ll regret it tomorrow. Extra coffee is okay though. See you tomorrow.
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