Jenin Younes & Todd Zywicki

Jenin Younes & Todd Zywicki

General notes:

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Announce podcast subscribe at the middle of the show (everyone asks for 5-star reviews, but I think you should just ask for honest feedback)
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Zywicki, Jenin and NCLA Legal all have sizable twitter followings. I will email them pre-made text to tweet out the morning of – if you can also remind them in the minutes before the show that would be great.

Summary:

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Jenin used to be a lefty, until COVID insanity turned her into a fighter for freedom. She now works for NCLA, and represented Zywicki in the case, which ultimately was resolved before going to court.
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Zywicki is not against the vaccine and would have gotten it if he hadn't been very sick from COVID last year. He emphasizes the dangers to the already-infected of the vaccine, and that the science clearly shows natural immunity to be superior.
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The case was made on the grounds of the 9th and 14th amendment, guaranteeing right to privacy and due process before violations of bodily autonomy. Furthermore, the burdens of the policy are not proportional to the benefits.

Bio

Jenin Younes (pronounced Jeanine Yoo-nez)

Jenin Younes is Litigation Counsel for the New Civil Liberties Alliance. Having always been a passionate advocate for individual liberties, Jenin spent the first part of her career as an appellate public defender, providing representation to indigent clients convicted of criminal offenses in New York City.  In this capacity, she briefed and argued countless appeals in New York’s Appellate Division, Second Department, and several cases in the New York State Court of Appeals. She also represented individuals at civil hearings in trial court.

After witnessing governments throughout the nation violate human rights and civil liberties in an ostensible effort to mitigate the spread of COVID-19, Jenin became active in fighting against lockdowns and related policies. She has published numerous essays on the subject with the American Institute for Economic Research.

Jenin holds a B.A. from Cornell University and a J.D. from New York University School of Law.

Todd Zywicki

Todd J. Zywicki is George Mason University Foundation Professor of Law at George Mason University Antonin Scalia School of Law, Senior Fellow of the Cato Institute, and former Executive Director of the GMU Law and Economics Center. In 2020-21 he served as the Chair of the Consumer Financial Protection Bureau Taskforce on Federal Consumer Financial Law. In 2021 he was inducted into the American College of Consumer Financial Services Lawyers. He served as Chair of the Association of American Law Schools Section on Law & Economics in 2019. From 2003-2004, Professor Zywicki served as the Director of the Office of Policy Planning at the Federal Trade Commission. In 2009, Professor Zywicki was the recipient of the Institute for Humane Studies 2009 Charles G. Koch Outstanding IHS Alum Award. He served as Co-Editor of the Supreme Court Economic Review from 2006-2017 and as Editor from 2001-2002. He teaches in the area of Bankruptcy, Contracts, Commercial Law, Law & Economics, and Public Choice and the Law. He has also taught at Vanderbilt University Law School, Georgetown University Law Center, Boston College Law School, Mississippi College School of Law, and China University of Political Science and Law.

Blurb

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George Mason is rolling in his grave. Or at least, he was, until Professor Todd Zywicki was finally exempted from George Mason University's mandatory vaccination policy. Zywicki, a law professor and frequent guest on the show of ideas, is no Anti-Vaxxer; he is, however, an ardent believer in the Constitution and Bill of Rights, which guarantee the rights to privacy and substantial interference with one's bodily autonomy without due process.

Zywicki was one of millions of Americans who already had the virus, and acquired the natural immunity that the vaccine is meant to mimic. That wasn't a good enough reason for GMU to exempt him, even though natural infection has been shown to create longer-lasting immunity. Faced with the threat of termination, Zywicki stood his ground – pointing out in a WSJ article that those with prior infection were at a higher risk of adverse reaction, for a medical procedure with no proven additional benefits. Backed by the New Civil Liberties Alliance, and his attorney Jenin Younes, he filed briefs to challenge the constitutionality of the workplace policy, which is becoming increasingly common across the country. While the George Mason University administration backed down, the legal questions are far from settled.

I'll be joined by Todd and his lawyer, Jenin, this Sunday (8-9 am PACIFIC) to review the case that would have been argued – both on the grounds of the latest science around natural immunity, as well as the constitutional considerations around privacy and bodily autonomy. We may not know what George Mason would have thought about the studies showing the relative risks and benefits of vaccination for the naturally immune, but I'd be willing to bet that the founder who insisted on a Bill of Rights before ratifying the Constitution would have opposed his namesake's draconian mandate.

Links & Summary

NCLA Case Page

Contains legal briefs, etc.
…GMU's Policy is designed to force its way past informed consent and infringes upon Professor Zywicki's rights under the Ninth and Fourteenth Amendments to the United States Constitution. For similar reasons, the Policy constitutes an unconstitutional condition, because it is poorly calibrated to protect the public health, yet it poses disproportionate risks on some of its targets. That renders the Policy an unlawful condition insufficiently germane to its purported purpose. Furthermore, the disciplinary and other burdens that GMU is using to leverage ostensibly voluntary compliance with its Policy are not proportional to the purported public health aims. … Existing clinical reports and studies indicate that individuals with a prior infection and naturally acquired immunity face an elevated risk of adverse effects from the vaccine, compared to those who have never contracted COVID-19.

Constitutional Considerations

With the GMU case resolved without trial, many critical legal arguments went untested. For example, does the 14th Amendment’s Due Process Clause apply to vaccine mandates, or does the state have the ability to suspend such rights when responding to a public health emergency? How does the reliability of natural immunity affect the constitutionality of policies that fail to recognize it? Can the government simply cherry-pick whatever science it wants to justify its policies? According to the court filing

“The Supreme Court has recognized that the Ninth and Fourteenth Amendments protect an individual’s right to privacy. A “forcible injection … into a nonconsenting person’s body represents a substantial interference with that person’s liberty[.]” Washington v. Harper, 494 U.S. 210, 229 (1990)”

Given this precedent, as well as the state’s police powers to suspend individual rights under compelling circumstances, how will this apply to Covid-19 in a low-risk environment such as a college campus? If the right still holds, how will it apply to city-wide vaccine passport programs, given that Covid-19 is a relatively mild disease?

The lawsuit also comes with the backdrop of a similar Indiana University vaccine case that advanced to the Supreme Court, only to be denied a hearing without comment. The move is also mysterious, given the relevance of the matter. As a result, it did not create a binding legal precedent. Furthermore, the suit made similar 14th Amendment claims to the GMU filing. Interestingly enough, another group recently served Rutgers University with a lawsuit, making similar arguments over its vaccine mandate. These events seem to signal a coming legal inflection point on mandatory inoculation policies.

WSJ Article by Todd

Aug. 6, 2021

I have natural immunity, so there’s no justification for a coercive violation of my bodily autonomy.

Clinical studies from Israel, the Cleveland Clinic, England and elsewhere have demonstrated beyond a doubt that natural immunity to SARS-CoV-2 provides robust and durable protection against reinfection comparable to or better than that provided by the most effective vaccines. Examining the evidence this May, the World Health Organization concluded: “Current evidence points to most individuals developing strong protective immune responses following natural infection with SARS-CoV-2.”

historical reference to the founder of GMU:

George Mason University’s vision aspires to “bring new perspectives and solutions to the world’s most pressing problems.” By breaking from the herd and following the example of George Mason himself—who refused to sign the U.S. Constitution until it included a Bill of Rights—my university can live up to this promise and treat naturally acquired immunity as at least equivalent to vaccinated status.
Jason Grant, August 23, 2021
Professor Todd Zywicki’s civil rights lawyers are saying the granting of the exemption was a surprising move by the university that, in their view, was meant to cut off litigation of the merits of Zywicki’s constitution-based case. … the university flatly denied that Zywicki’s legal action, .., had had any impact on its decision last week to grant Zywicki the medical exemption.
But in its Aug. 18 statement on the Zywicki situation, a university spokesman had said in part, “Contrary to public reports, Mason has never given, and does not plan to give, any employee or student an exemption from the vaccine requirement based solely on a claim of immunity from COVID based on previously having COVID or having a COVID antibody test showing the presence of COVID antibodies. Granting such an exemption would not be consistent with current medical science or public health guidance.”

Relevant Tweets

August 17, 2021
NCLA filed Professor Zywicki’s complaint in the Eastern District of Virginia on August 3, 2021, challenging GMU’s “reopening policy.” The policy, announced June 28, requires all faculty and staff members, including those who can demonstrate natural immunity through recovery from a prior Covid-19 infection, to disclose their vaccination status as “a prerequisite for eligibility for any merit pay increases,” unless they obtain a religious or medical exemption. On July 22, GMU emailed the policy to students and employees and threatened disciplinary action—including termination of employment—against any who do not comply with the vaccine mandate. The university’s website describing its vaccination policy reiterated this threat.
August 17, 2021
"He must get tested for COVID-19 once per week on campus at no cost to himself. This favorable result should encourage others to fight irrational vaccine mandates elsewhere on the same basis laid out in the Zywicki complaint against GMU," the NCLA added.
Dan Eaton, August 16, 2021

Should institutions like GMU have the right to require vaccination? Courts have been tending to say "yes."

Prof. Zywicki asserts in his complaint, among other things, that requiring him to choose between accepting restrictions that would render him less effective as a teacher and accepting a vaccine he claims he does not need violates his constitutional right to refuse unwanted and medically unnecessary care. Throughout the pandemic, however, courts have shown a broad, though not unlimited, willingness to let universities and other institutions decide for themselves what is necessary to keep members of their community safe based on public health guidance that is not demonstrably irrational. Much of the legal analysis behind mandatory vaccination policies will be reconsidered if courts conclude that employers must treat unvaccinated individuals who previously have recovered from COVID-19 as though they have been vaccinated.
New Civil Liberties Alliance, August 5, 2021
Younes added: “GMU’s attempt to interfere with Professor Zywicki’s bodily autonomy, with no legitimate rationale for doing so, not only violates medical ethics, but also fundamental rights protected in the Ninth and Fourteenth Amendments to the United States Constitution.
As an administrative unit of the Commonwealth of Virginia, GMU has no compelling state interest in overriding Zywicki’s personal autonomy by effectively forcing him to receive a vaccine or suffer adverse professional consequences. Because of his natural immunity, Zywicki already has the same or better antibody levels than a vaccine would give him.
The reopening policy also conflicts with federal law. None of the vaccines approved for use in the U.S. has received full Food and Drug Administration approval. Rather, they have only been granted Emergency Use Authorization (EUA) status, which means anyone offered the vaccine may withhold their informed consent. The policy thus conflicts with the EUA statute and thereby violates the Supremacy Clause of the U.S. Constitution, which dictates that a state or local law is preempted when it creates “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Natural Immunity

Michael Segal, August 16, 2021
All this has implications for public-health authorities’ determination to achieve herd immunity through vaccination alone. In the Provincetown, Mass., outbreak, which informed the CDC’s recent change in guidelines, viral loads in the nose were “similarly high” in the vaccinated and unvaccinated, suggesting that the vaccine’s efficacy against infection in the nose had fallen to zero with the advent of the Delta variant. That would mean herd immunity through vaccination is impossible.

Vaccination provides internal immunity but not mucosal immunity, meaning you can still get infected in just the nasal cavity, making you contagious.

A new study in Vietnam actually shows that breakthrough cases among the vaccinated have much heavier viral loads than original patients.

Viral loads of breakthrough Delta variant infection cases were 251 times higher than those of cases infected with old strains detected between March-April 2020.
Cho et al., July 29, 2021
We conclude that memory antibodies selected over time by natural infection have greater potency and breadth than antibodies elicited by vaccination. These results suggest that boosting vaccinated individuals with currently available mRNA vaccines would produce a quantitative increase in plasma neutralizing activity but not the qualitative advantage against variants obtained by vaccinating convalescent individuals.
Scott Morefield, August 23, 2021
the appalling lack of scientific rigour in their tone-deaf pretensions that natural immunity doesn’t exist should cause and is causing an increasingly large percentage of the public to view them as the discredited, unscientific paper tigers they are.… “Well guess what, the rate of getting a subsequent infection in those with natural immunity was 0.09%, and those who were vaccinated in that time period was 0.03%,” he continued. “The conclusion is, it’s extremely rare in both groups, not that it’s higher among those with natural immunity by two to three fold.”
Dr. Joseph Mercola, August 20, 2021
In January 2021, Dr. Hooman Noorchashm, a cardiac surgeon and patient advocate, sent a public letter15 to the U.S. Food and Drug Administration commissioner detailing the risks of vaccinating individuals who have previously been infected with SARS-CoV-2, or who have an active SARS-CoV-2 infection. He urged the FDA to require prescreening for SARS-CoV-2 viral proteins to reduce the risk of injuries and deaths following vaccination, as the vaccine may trigger an adverse immune response in those who have already been infected with the virus.

Thomas Massie forced a retraction by the lyin' CDC:

In a report issued by the CDC’s Advisory Committee on Immunization Practices (ACIP) December 18, 2020, the Pfizer-BioNTech COVID-19 vaccine was said to have “consistent high efficacy” of 92% or more among people with evidence of previous SARS-CoV-2 infection.20 After looking at the Pfizer trial data, Rep. Thomas Massie — a Republican Congressman for Kentucky and an award-winning scientist in his own right — discovered that’s completely wrong. In a January 30, 2021, Full Measure report, investigative journalist Sharyl Attkisson described how Massie tried, in vain, to get the CDC to correct its error. According to Massie:21,22 “There is no efficacy demonstrated in the Pfizer trial among participants with evidence of previous SARS-CoV-2 infections and actually there’s no proof in the Moderna trial either … It [the CDC report] says the exact opposite of what the data says. They’re giving people the impression that this vaccine will save your life, or save you from suffering, even if you’ve already had the virus and recovered, which has not been demonstrated in either the Pfizer or the Moderna trial.” After multiple phone calls, CDC deputy director Dr. Anne Schuchat finally acknowledged the error and told Massie it would be fixed. “As you note correctly, there is not sufficient analysis to show that in the subset of only the people with prior infection, there’s efficacy. So, you’re correct that that sentence is wrong and that we need to make a correction of it,” Schuchat said in the recorded call.
Sanjay Mishra, August 21, 2021

Videos & Podcasts

August 23, 2021

50 minute video.

Josh Blackman on the Trey Gowdy podcast

Abstract of Blackman's 98-page paper:

During the COVID-19 outbreak, Jacobson v. Massachusetts became the fountainhead for pandemic jurisprudence. Courts relied on this 1905 precedent to resolve disputes about religious freedom, abortion, gun rights, voting rights, the right to travel, and many other contexts. But Justice John Marshall Harlan’s decision was very narrow. It upheld the state’s power to impose a nominal fine on an unvaccinated person. No more, no less. Yet, judges now follow a variant of Jacobson that is far removed from the Lochner-era decision. And the Supreme Court is largely to blame for these errors. Over the course of a century, four prominent Justices established the irrepressible myth of Jacobson v. Massachusetts. This myth has four levels. The first level was layered in Buck v. Bell (1927). Justice Holmes recast Jacobson’s limited holding to support forcible intrusions onto bodily autonomy. The Cambridge law did not involve forcible vaccination, but Holmes still used the case to uphold a compulsory sterilization regime. The second level was layered in 1963. In Sherbert v. Verner, Justice Brennan transformed Jacobson, a substantive due process case, into a free exercise case. And he suggested that the usual First Amendment jurisprudence would not apply during public health crises. The third level was layered in 1973. In Roe v. Wade, Justice Blackmun incorporated Jacobson into the Court’s modern substantive due process framework. Roe also inadvertently extended Jacobson yet further: during a health crisis, the state has additional powers to restrict abortions. The fourth layer is of recent vintage. In South Bay Pentecostal Church v. Newsom, Chief Justice Roberts’s “superprecedent” suggested that Jacobson-level deference was warranted for all pandemic-related constitutional challenges. This final layer of the myth, however, would be buried six months later in Roman Catholic Diocese of Brooklyn v. Cuomo. The per curiam decision followed traditional First Amendment doctrine, and did not rely on Jacobson. But Jacobson stands ready to open up an escape hatch from the Constitution during the next crisis. The Supreme Court should restore Jacobson to its original meaning, and permanently seal that escape hatch
Jenin Younes interviewed on the Radio

Is the exemption conditional? Testing 1/week.

with Trish Wood, August 20, 2021
August 14, 2021
August 11, 2021
with Tom Wood, August 9, 2021
July 31, 2021
July 1, 2021

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