Administrative Procedures Act v. Public Health Service Act
USDC Middle Florida ruling in Health Freedom Defense Fund v. Biden opens window into key separation of powers issue of the American biomedical police state established Jan. 31, 2020.
Thanks to US District Court Judge Kathryn Kimball Mizelle’s decision this week in Health Freedom Defense Fund v. Biden, 8:21-cv-1693-KKM-AEP, Middle District Florida, a crucial separation of powers issue buried in the mass panic of Covid-19 is getting some judicial and public scrutiny.
US domestic bioterrorism program spokesman Anthony Fauci has expressed concern about this development.
Fauci spoke with Kasie Hunt on CNN and explained that he was “disappointed and surprised” by courts getting involved with a public health issue…
He said he was “both surprised and disappointed because those types of things really are the purview of the CDC. This is a public health issue. And for a court to come in, if you look at the rationale for that, it really is not particularly firm. And we are concerned about the courts getting involved in things that are unequivocally public health decisions. I mean, this is a CDC issue, which should not have been a court issue.”
Congress, through the PREP Act of 2005 amendments to the Public Health Service Act of 1944, 42 USC 201 et seq., and other public health-predicated laws signed by US Presidents over the past twenty years, gave the Secretary of Health and Human Services, as an executive branch administrator, power to govern for the duration of public health emergencies as declared and extended by the same person: the HHS Secretary.
The PREP Act included provisions that HHS Secretary executive actions, such as declarations, regulations and rulemaking, taken during declared public health emergencies, including orders relating to ‘covered countermeasures’ such as medical devices (masks) and pharmaceutical products (injections), are judicially unreviewable. 42 US 247d-6d(b)(7).
The PREP Act of 2005 also provided that HHS Secretary executive actions preempt the laws of other political subdivisions such as States, territories and tribes, to the extent such laws conflict with HHS declarations. 42 USC 247d-6d(b)(8).
On Feb. 3, 2021, shortly after President Biden took office, the CDC issued a declaration entitled 'Requirements for Persons to Wear Masks While on Conveyances and at Transportation Hubs.’ 86 Federal Register 8025.
A group of air travel passengers filed a lawsuit on July 12, 2021: Health Freedom Defense Fund v. Biden, 8:21-cv-1693-KMM-AEP.
The plaintiffs claimed that the CDC mandate violated rulemaking, notice and comment procedures under the Administrative Procedures Act of 1946, 5 USC 551 et seq. They requested declarative judgment that the mandate was unlawful and to have it set aside.
The case was not brought on constitutional grounds.
Despite the Biden Administration argument that there was no case on grounds that CDC has the authority to dispense with public notice and comment procedures at its own, unreviewable discretion, Judge Mizelle reviewed it anyway.
By opinion and order issued April 18, 2022, she declared the mandate unlawful and vacated it.
The Biden Administration — executive branch — appealed the decision to the 11th Circuit Court of Appeals on April 20, 2022.
If Judge Mizelle’s decision is reversed, the plaintiffs will appeal to the US Supreme Court.
There, Chief Justice Johns Roberts has already set an injurious precedent on separation of powers, saying federal courts should refuse to “second-guess” legislative and executive branch acts when related to public health during a declared emergency. See May 9, 2020 order, South Bay United Pentecostal v. Newsom, USDC Southern District California, 9th Circuit Court of Appeals, (590 US__2020).
To Chief Justice Roberts’ May 2020 statement of abdication as official Supreme Court policy, Justices Sotomayor and Barrett have added insult, by flatly refusing to accept cases seeking judicial review of university mandates (Klaassen v. Trustees of Indiana University, USDC Northern District Indiana, 7th Circuit Court of Appeals, 21A15, Aug. 12, 2021) and New York Department of Education mandates on schoolteachers and school staff (Keil v. City of New York. USDC Southern District New York, 2nd Circuit Court of Appeals, 21A398, Feb. 11, 2022).
There are many other examples of federal courts stalling, rolling over and playing dead over the last two years, such that there hasn’t yet been a public, in-court, adversarial presentation of factual evidence about the HHS Secretary’s unprecedented power grab and legal argument about its legitimacy.1
That’s true even though the Supreme Court has ruled on the HHS Center for Medicare and Medicaid Services (CMS) mandates: finding them lawful on the statutory basis that hospitals and nursing homes receive federal funding, with strong dissent filed by Justices Thomas, Alito, Gorsuch and Barrett; and on the Department of Labor Occupational Safety and Health Administration (OSHA) mandates: finding them unlawful on the statutory basis that the Secretary of Labor lacks power to mandate public health measures regarding hazards that exist outside the workplace just as much as inside it.
Here’s the question:
If the federal courts will no longer exercise their public fact-finding and judicial review authority under the US Constitution, who will resolve legal disputes on separation of powers, using what process?
As they have throughout our history, these legal disputes pit the self-governing authority and bodily autonomy of individual sovereign American citizens and naturalized immigrants against the consent-derived power of elected and appointed government agents.
In every case, even disputes about statutory frameworks, in a rule-of-law society, the supreme law of the land should be the US Constitution.
And the impartial arbiter should be the federal judiciary operating through timely, public, adversarial fact-finding and legal arguments.
The US Constitution is demonstrably not the supreme law of the land right now.
Health and Human Services Secretary Xavier Becerra is currently the supreme law of the land.
Becerra operates above the law, above the US Constitution and above the US Supreme Court, thanks to the 109th Congress and President George W. Bush, through the PREP Act amendments to the Public Health Service Act, signed Dec. 30, 2005. (See pp. 139-153)
Here’s the answer:
Without the rule of law and dispute resolution through functional federal courts, separation of powers disputes are resolved through might-makes-right: the party with the most gun-backed power wins.
In this case, the winner is the CDC under the Health and Human Services Department, as merged with the Department of Homeland Security, Department of Justice, and Department of Defense, running an armed occupation of the American population that just hasn’t gone kinetic yet because a critical mass of people have been bioterrified into preemptive submission.
The non-kinetic status will endure until the critical mass tips the other way, and the general population stops quietly and peacefully going along with the occupation.
Or until the federal judges get in the game, review the statutes that have enabled the biomedical police state to take shape, recognize those statutes are unconstitutional and incompatible with human liberty and dignity, and nullify them.
PARTIAL LIST OF FEDERAL CASES FILED TO CHALLENGE COVID-19 MITIGATION MEASURES
Butler v. Wolf, USDC Middle District Pennsylvania, Third Circuit Court of Appeals. Appeal denied without explanation by US Supreme Court (20-2936). Challenge to constitutionality of governor’s emergency executive orders.
Jackson v. Ventavia, Pfizer et al, USDC Eastern District Texas (1:21-cv-00008-MJT). Whistleblower, False Claims Act case alleging clinical trial fraud and defrauding of US government and FDA as emergency-authorizers, purchasers, marketers and mandaters of the toxic products.
Bridges v. Houston Methodist Hospital, USDC Southern District Texas, 5th Circuit Court of Appeals (21-20311). Challenge to private employer vaccine mandate.
America’s Frontline Doctors v. Becerra, et al. USDC Northern District Alabama (2:21-cv-00702-CLM). Challenge to FDA Emergency Use Authorization of product.
Robert et al. v. Austin, Becerra, et al. USDC Colorado, 10th Circuit Court of Appeals (21-cv-2228; 22-1032). Challenge to federal military vaccine mandate.
Ealy, Linthicum and Thatcher v. Redfield, Walensky, Azar et al., USDC Oregon Petition to Impanel Special Grand Jury to Investigate Allegations of Federal Crimes (3:22-cv-356-HZ). Allegation that multiple federal agencies committeed multiple federal crimes, including rulemaking violations of Administrative Procedures Act, 5 USC 551 et seq., and defrauded US public and state and local governments.
Costin v. Biden et al., USDC District of Columbia (1:21-cv-02484). Challenge to federal employee, federal contractor and federal military vaccine mandates.
Navy Seal 1 v. Biden et al., USDC Middle District Florida (8:21-cv-02429-SDM-TGW). Challenge to federal military vaccine mandate.
Church v. Biden, USDC District of Columbia (1:21-cv-02815). Challenge to federal employee, federal contractor and federal military vaccine mandates.
Navy Seal 1 v. Austin et al., USDC Northern District Texas (4:21-cv-01236), Class Action. Federal Department of Defense mandate on military personnel.
Missouri v. Biden, USDC Eastern Missouri (2021 WL 5564501) and Louisiana v. Becerra, USDC Western Louisiana (2021 WL 5609846), appealed by Biden Administration to 5th and 8th Circuit Courts of Appeals. Consolidated 21A240 and 21A241 at US Supreme Court (595 U.S.__ 2022). Challenge to federal mandate on health care workers at Center for Medicare and Medicaid (CMS)-funded facilities.
Feds for Medical Freedom v. Biden, USDC Southern Texas, 5th Circuit Court of Appeals (3:21-cv-00356). Challenge to federal mandate on federal employees.
National Federation of Independent Businesses v. Department of Labor Occupational Health and Safety Administration (OSHA); Ohio v. OSHA. Consolidated 21A244 and 21A247 at US Supreme Court (595 US___ 2022). Challenge to federal/OSHA mandate on private employers with 100 or more employees.
Federal Civilian Contractor Employer v. Austin, USDC Middle District Florida (8:2022-cv-00365). Challenge to federal mandate on federal contractors.
Doster v. Kendall, USDC Southern District Ohio (1:22-cv-00084). Challenge to federal mandate on Air Force servicemembers.
Griner v. Biden, USDC Utah (2:22-cv-00149-DAK). Challenge to federal mandate on health care workers at CMS-funded facilities, including challenge to the government’s definition of the product as ‘vaccines.’
Feds for Medical Freedom v. Biden, USDC Southern District Texas, 5th Circuit Court of Appeals. (3:21-cv-00356). Challenge to federal ‘mandate’ on federal employees.'