Re: “judicially-unreviewable.”

Commenter to previous post wrote:

“judicially-unreviewable power"

Having a hard time reconciling this with the 10th Amendment. Either the Constitution is supreme or revolutionary war will come.

Are you saying SCOTUS would try to enforce the treaties? Are treaties supreme to national laws?

Someone needs to explain how this is law just because legislation was passed. Unconstitutional laws pass and get rejected. States refuse to prosecute laws. How is this different?

My response:

More likely, SCOTUS will simply kick out all cases brought on Constitutional and civil liberties grounds, which is what they’ve done to date, acting as if those issues are moot. 

So far, (as far as I know) all of their rulings — even the ones that benefit workers by lifting alleged mandates — have been on procedural and regulatory grounds, and SCOTUS Chief Justice Roberts, in a May 2020 case South Bay United Pentecostal v. Newsom, explicitly said that federal judges should not even attempt to review or second-guess emergency actions taken by executive and legislative branches. 

“The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).”

So far, most federal courts have abided by CJ Roberts’ implicit directive to steer clear of Constitutional review.

Also, Congress put provisions into the statutes that authorize a variety of court workarounds, mostly related to the principle of “committed to agency discretion.”

Once the HHS Secretary has declared a public emergency, he or she has emergency powers that courts cannot review. 42 USC 247d-6d(b)(7).

And once he or she has designated a product as an EUA “countermeasure,” use of the product, and all the people involved in developing, manufacturing, distributing and administering the product are almost completely immune from accountability for their actions.

People who have claims are barred from using state or federal courts for civil cases; the sole remedy is the Congressionally authorized Countermeasures Injury Compensation scheme (CICP). 

No court can review compensation payouts made under that program. 42 USC 247d-6e(b)(5)(C).

Congress legalized the “just following orders” defense for nurses and other vaccinators. 42 USC 247d-6d(c)(4).

Procurement contracts (i.e. with Pfizer) can only be reviewed by the contracting agency (HHS/FDA/CDC) or by the Comptroller General. 

Contractors are, for legal purposes, considered HHS employees, so they get government immunities. 

Burden of proof is on plaintiffs to prove willful misconduct proximate to injury and/or death, stricter standard than negligence.

The only federal court authorized to hear claims is the US District Court for District of Columbia (home court) and they are required to use a three-judge panel, and their rulings are specifically not appealable to US Supreme Court. 42 USC 247d-6d(e)(5)

I’m working on detailed summaries and analysis of the U.S. laws passed between 2000 and 2022, to post here over the next few weeks/months, so some of those specific citations might be wrong, and will be corrected in the full posts.

In the meantime, the main statutes to look at, to confirm or refute my analysis so far, are the 2004 Project Bioshield Act, PL 108-276, passed July 21, 2004, and the 2005 PREP Act, PL 109-148, passed Dec. 30, 2005.

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