Why the NYC teachers’ lawyers may be losing in the court .. vaccine mandate

Politics
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As stated above, any government act which impinges upon a fundamental right, must comply with the strict scrutiny test:

(A) be narrowly tailored to achieve the government’s purpose,

(B) the purpose must be clearly defined and be based upon scientific and logical reasoning,

(C) and, it must use the least restrictive means to achieve the government’s stated purpose.

Are you suggesting government using force to compel a person to be vaccinated is not impinging upon a fundamental right of that person"

In case you are, see Washington v. Harper, 494 U.S. 210, 229 (1990) we find “The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty."

And when a person’s liberty is infringed upon by government we find:

A government imposed act which “impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional.” See: Harris v. McRae United States Supreme Court (1980) Also see City of Mobile v. Bolden, 466 U.S. 55, 76, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980)

JWK

1 Like
62

no, it clearly states the legislatures have the authority to create reasonable laws regarding vax mandates. it does not address executive edicts at all.

2 Likes
63

I think the poster needs a link to the case so he will have the opportunity to no longer misrepresent the case. Here is that link for biggestal99:

JACOBSON v. COM. OF MASSACHUSETTS | FindLaw

JWK

64

Western Michigan University must meet strict scrutiny test to force COVID vaccine on athletes

Here is the latest.

Appeals Court sides with Christian athletes against Western Michigan University’s COVID shot mandate

October 9, 2021

“The Court of Appeals said because the Kalamazoo-based university offered to consider medical or religious exemptions on a case-by-case basis, the shot mandate was not generally applicable. Under U.S. Supreme Court precedent, the judges wrote, the policy must be held to “strict scrutiny,” meaning denial of religious exemptions must serve “interests of the highest order” and be “narrowly tailored to achieve those interests.”

For those interested in reading the ruling, here is a LINK .

The court states:

“And, like the city in Fulton and the state in Sherbert , the University retains discretion to extend exemptions in whole or in part. For this reason, the policy is not generally applicable. As a result, the University must prove that its decision not to grant religious exemptions to plaintiffs survives strict scrutiny. See Fulton , 141 S. Ct. at 1881.”

The bottom line is, the case confirms when a vaccine mandate impinges upon a fundamental right, and that right is asserted, the mandate must pass the strict scrutiny test and it must:

(A) be narrowly tailored to achieve the government’s purpose,

(B) the purpose must be clearly defined and be based upon scientific and logical reasoning,

(C) and, it must use the least restrictive means to achieve the government’s stated purpose.

JWK

The Democrat Party Leadership, once an advocate for hard working American citizens and their families, is now their worst nightmare

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Who is being restrained and forcefully vaccinated?

66

That is the case that ruled the statute was constitutional in part because the plaintiff had the option to refuse the vaccination and pay the fine. It specifically says that the state cannot force someone to inject something into them against their will.
Politico is somewhat misleading in their article. Surprise.

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67

And the same with an employee mandate. The person has choices.

Get vaxxed or get fired.

Allan

68

Nobody’s forced to get vaxxed.

Allan

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Not to mention, the vaccine that got FDA approval, is not the vaccine being used right now.

70

More vax misinformation spread on the internet.

At least be accurate.

https://www.miamiherald.com/news/coronavirus/article253765538.html

It’s the exact same, only the name changed.

It’s like if I changed my name to Ralph.

You’d still be reading my posts.

Ralph

1 Like
71

Maybe. But there is a difference between a $5 penalty and giving up your job. At some point the penalty becomes so high it becomes a mandate. Think the penalty/tax argument with Obamacare.

72

and the left loves any tyranny they can inflict it seems to me…

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73

Yes. Of course. But it is still a choice.

The gentleman didn’t want to get vaxxed. So he paid the fine imposed.

Many now are faced with a similar choice. Get vaxxed or pay the penalty.

It’s still a choice. Maybe not a good one but still a choice one makes in their lives.

Allan

74

You are ignoring that Jacobson is outdated. It was decided well before the protection of “strict scrutiny” had been developed and established in cases involving a government act which infringes upon a fundamental right.

Pointing to JACOBSON v COM. OF MASSACHUSETTS as controlling law today with respect to the constitutionality of current one-size-fits-all COVID vaccine mandates, such as NYC’s mandate, is absurd, since any act which “impinges upon a fundamental right explicitly or implicitly secured by the Constitution [it] is presumptively unconstitutional.” See: Harris v. McRae United States Supreme Court (1980) Also see City of Mobile v. Bolden , 466 U.S. 55, 76, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980)

Today, when a fundamental right is impinged upon by a government act ___ which is the case with a forced medical treatment, see Rivers v. Katz (67 N.Y.2d 485) 1986, and Washington v. Harper , 494 U.S. 210, 229 (1990) ___ the act, to pass constitutional muster, must be judged under the strict scrutiny test: (A) be narrowly tailored to achieve the government’s purpose, (B) the purpose must be clearly defined and be based upon scientific and logical reasoning, (C) and, it must use the least restrictive means to achieve the government’s stated purpose.

The fact remains, NYC’s vaccine mandate, which has been an ongoing topic in the news, has not survived the “strict scrutiny” test. Of course, one may argue that a government mandate which compels a teacher to be injected with a vaccine without their consent does not violate that person’s fundamental rights, and therefore, the “strict scrutiny” standard protection is not available. But that argument would be bizarre considering even in JACOBSON the Supreme Court acknowledged the government has no power to vaccinate people by force:

“If a person should deem it important that vaccination should not be performed in his case, and the authorities should think otherwise, it is not in their power to vaccinate him by force, and the worst that could happen to him under the statute would be the payment of the penalty of $5.”

The bottom line is, today, if a fundamental right is infringed upon by a government act, it is “presumptively unconstitutional”, and to be upheld under our judicial system, it must survive the “strict scrutiny” standard.

Hope the above is useful to you.

JWK

The citizens of the United States paid little attention while their tyrannical federal government gave aid and comfort to hundreds of thousands of COVID infected foreign nationals invading their country.

75

The Precedent is not outdated.

Read some of the recent court cases that cite it.

Allan

76

What triggers strict scrutiny protection?

Once again I see you ignore and sidestep around the fact that if a fundamental right is infringed upon by a government act, and it is challenged, it is considered to be “presumptively unconstitutional” under our current judicial system, and to be upheld under our judicial system, it must survive the “strict scrutiny” standard.

In the Western Michigan University case, the fundamental right claimed to be infringed upon was a religious belief, and so, the strict scrutiny standard was triggered and the athletes won their case.

Another fundamental right which is infringed upon by government is forcing a person to have a foreign substance injected into their body. This too is an infringement upon a fundamental right and is “presumptively unconstitutional” if challenged. And to be upheld under our judicial system, it must pass the strict scrutiny test.

Keep in mind, even in JACOBSON v COM. OF MASSACHUSETTS the court acknowledged the government has no power to vaccinate people by force. And today, such an act by government, to be found within the letter of the law, must survive the strict scrutiny standard.

Are you not in agreement with these facts? If not, what is you disagreement?

JWK

Let us never forget. There is now both domestic and foreign blood on the hands of all those who voted for the Biden/Harris ticket.

77

The mandate is not forcing anyone to do anything.

Rather the unvaxxed have to make a choice.

Just the get vax or face the penalty. (As in Jacobsen)

Same as every American with enough income to trigger a tax payment.

File you taxes correctly and pay or face the penalty for not filing correctly and paying.

Allan

78

You are deflecting again. You never answered my question. Are you in agreement with the above stated facts?

JWK

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'i do believe being forced to give up your livlihood could be considered “unusual” punishment for exercizing your right to refuse medical treatment.

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Actually, it would be considered far worse!

Our Supreme Court, in Shapiro v. Thompson, 394 U.S. 618 summarized that the mere chilling of a Constitutional right by a penalty on its exercise is patently unconstitutional.

Government objectives ". . . cannot be pursued by means that needlessly chill the exercise of basic constitutional rights. Cf. United States v. Robel, 389 U.S. 258 ; Shelton v. Tucker, 364 U.S. 479, 488 -489. The question is not whether the chilling effect is “incidental” rather than intentional; the question is whether that effect is unnecessary and therefore excessive . . .UNITED STATES v. JACKSON.

And this is where the protection of “strict scrutiny” comes into play under our system of law and is used to evaluate the government’s objective, insuring it must:

(A) be narrowly tailored to achieve the government’s purpose,

(B) the purpose must be clearly defined and be based upon scientific and logical reasoning,

(C) and, it must use the least restrictive means to achieve the government’s stated purpose.

Here is the latest example where strict scrutiny was used to stop a government infringement on a fundamental right.

Appeals Court sides with Christian athletes against Western Michigan University’s COVID shot mandate

October 9, 2021

“The Court of Appeals said because the Kalamazoo-based university offered to consider medical or religious exemptions on a case-by-case basis, the shot mandate was not generally applicable. Under U.S. Supreme Court precedent, the judges wrote, the policy must be held to “strict scrutiny,” meaning denial of religious exemptions must serve “interests of the highest order” and be “narrowly tailored to achieve those interests.”

For those interested in reading the ruling, here is a LINK.

The court states:

“And, like the city in Fulton and the state in Sherbert, the University retains discretion to extend exemptions in whole or in part. For this reason, the policy is not generally applicable. As a result, the University must prove that its decision not to grant religious exemptions to plaintiffs survives strict scrutiny. See Fulton, 141 S. Ct. at 1881.”

The bottom line is, the case confirms when a vaccine mandate impinges upon a fundamental right, and that right is asserted to be infringed upon, it is viewed as being “presumptively unconstitutional” and the objective must pass the strict scrutiny test as outlined above.

JWK

“If the Constitution was ratified under the belief, sedulously propagated on all sides that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?”___ Justice Story