Strategies for drawing out judicial admission that Constitution has been suspended since Jan. 27, 2020.

Yesterday I read several of the filings in Robert v. Austin, a federal case currently on appeal in the 10th Circuit Court of Appeals.

Two Army staff sergeants — Daniel Robert and Hollie Mulvihill — sued Secretary of Defense Lloyd Austin challenging his August 24, 2021 vaccine mandate on several statutory and regulatory grounds and one Constitutional cause of action.

In January 2022, before discovery or evidentiary review, the Colorado District Court denied the plaintiffs’ request for injunctions and granted the Department of Defense/Department of Justice motion to dismiss the case.

The decision rested on standing and ripeness grounds because Robert’s request for an exemption is still pending and Mulvihill currently has a temporary medical exemption.

Even if both are eventually ordered to take the shots — DOD argued and USDJ Raymond Moore ruled — they will have access to administrative appeals within the military command structure, and haven’t had to take them yet.

Moore concluded “Plaintiffs claims involve uncertain and contingent events that may not occur as anticipated.”

I think of this as the kids-in-the-backseat-of-the-car, “I’m-not-touching-you” argument.

It’s the same as the Third Circuit denial of plaintiffs’ appeal in Butler v. Wolf. The appellate judges acknowledged that Governor Tom Wolf might re-impose all of the lockdown orders imposed on Pennsylvanians in 2020 and most of 2021 in the future, at any time.

But they ruled that because Wolf had temporarily suspended those orders as of August 2021 (when Third Circuit ruled on the case), the case was moot, plaintiffs lacked standing and the court lacked jurisdiction to review the orders for constitutional validity.

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In Robert v. Austin, the statutory grounds include:

• 10 USC 1107, governing military use of products classified by FDA as Investigational New Drugs (IND)

• 10 USC 1107a, governing military use of products classified by FDA as Emergency Use Authorized (EUA)

• 50 USC 1520, Use of human subjects for testing of chemical or biological agents by Department of Defense

• 21 USC 360bbb-3, the EUA provisions within the Federal Food Drug and Cosmetics Act.

The regulatory grounds include:

• Army Regulation 40-562, providing four enumerated exemptions from military vaccination requirements, including proof of recovery from natural infection

• Department of Defense Directive 6200.02, on use of investigational new drugs for force health protection

The sole Constitutional claim brought by Robert and Mulvihill in their federal complaint alleged government violation of the 14th Amendment Equal Protection Clause.

They alleged DOD’s refusal to accept natural immunity derived from infection and recovery, as equivalent to or superior to artificial immunity derived from vaccination, represents unlawful disparate treatment.

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As stated above, the District Court never even reached the substantive statutory, regulatory or Constitutional claims raised by Staff Sgt. Robert and Staff Sgt. Mulvihill; the case was dismissed on procedural, threshold issues.

Plaintiffs appealed the District Court ruling to the Tenth Circuit Court of Appeals, filing their brief March 28, 2022. They raised the same statutory, regulatory and Constitutional claims.

They added in a request that DOD and the Tenth Circuit address another Constitutional issue related to the 2013 Supreme Court precedent set in Association for Molecular Pathology v. Myriad Genetics, on patent-based property ownership rights held by corporations in living organisms that have been genetically altered through corporate-owned techniques.

Plaintiffs asked the government and the court to answer the question: Does the Myriad precedent extend to ownership rights over injected human beings, for Pfizer, Moderna, DOD, NIH and the other corporations and governments that own patents on the products marketed as Covid-19 vaccines?

If the Myriad precedent does extend to ownership of human beings, Plaintiffs argued, military vaccine mandates also violate the 13th Amendment to the US Constitution, which prohibits both slavery and involuntary servitude, except as punishment for crime after due process of law.

NOTE: In 2011, Congress tried to prohibit issuing of patents “directed to or encompassing a human organism,” through the 2011 Act to Amend Title 35, United States Code, to Provide for Patent Reform at Section 33. Remains to be seen whether the 2011 law will hold up against corporate claims of patent-based ownership of injected humans if and when more such cases move forward.

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Department of Justice attorneys filed the DOD’s 10th Circuit reply brief on May 27, 2022.

They denied DOD’s actions violate laws governing use of experimental products on men and women serving in the military and laws protecting informed consent rights, driving the HHS-DOD genocide truck right down the legal roads created by Congress, mostly since 1997, and the legal openings created by the FDA through the EUA, IND and BLA (biologics license application) procedures since the Covid-19 bioterrorism campaign began at the start of 2020.

But they completely ignored the two Constitutional claims: that the US government, through the DOD, is violating the 13th Amendment and 14th Amendment rights of Robert and Mulvihill.

Didn’t even mention them.

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In mid-May, I posted Shifting the Frame:

As more civil lawsuits are filed, I think it would be useful for plaintiffs to begin asking federal judges to rule on the public record, as a threshold issue, on whether the US Constitution is still controlling law in the United States, and whether individual American citizens are presumed to have Constitutional liberties and the right to exercise them freely, without interference from government officials.

If a judge rules on the record, "No, the US Constitution is null and void for as long as the Health and Human Services Secretary extends the public emergency and the related declarations of medical countermeasures," then plaintiffs will know that their constitutional cases will be dismissed before discovery and trial. 

If a judge answers, “Yes, the US Constitution is still in force, and plaintiffs are presumed to possess Constitutional rights unless and until they are deprived of those rights after due process of law," then plaintiffs will have good reason to pursue their cases and try to prove that the government is violating legal limits on its power.

If civil cases make it to discovery, plaintiffs could also file Requests for Admission to federal government defendants, asking the government attorneys to admit or deny, under oath, that the government’s legal position is that the US Constitution has been suspended and that American citizens currently have no government-recognized Constitutional rights.

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I still think that’s a useful approach.

But reading the Robert v. Austin filings suggests another legal strategy: filing civil cases narrowly focused on challenging the constitutionality of the enabling statutes passed by Congress since at least 1983.

To whatever extent there are statutes of limitations requiring challenges to be brought within a year or two of the statutes’ adoption, there may be a good argument that the clock starts tolling at the point at which plaintiffs become aware that the disputed statutes have completely nullified the Constitution.

Which — given the twisted wording of the laws — could only happen after the government began using the statutes to suspend the Constitution and the public began to understand the suspension as such.

At the very least, it’s a case of first impression.

As far as I know, no laws in the history of the United States have — before now — purported to entirely suspend the Constitution, as the Public Health Emergencies section of the Public Health Service Act added in 1983, and amended since then, apparently does.

Does the Constitution authorize Congress to pass laws nullifying the Constitution; eliminating Congress’s power to check executive and judicial power; eliminating the federal judiciary’s power to review statutes and regulations for constitutional validity; subordinating the federal government to the HHS Secretary; and subordinating the country to the World Health Organization?

Statutes that could be challenged as inherently unconstitutional and invalid include:

• 1983 Public Health Service Act Amendment adding Public Health Emergencies (Section 319)

• 1986 State Comprehensive Mental Health Services Plan Act establishing and funding a National Vaccine Program and granting vaccine manufactures legal immunity.

• 1997 National Defense Authorization Act for FY98 and 1997 Food and Drug Administration Modernization Act, which transferred the US government’s chemical and biological weapons program from DOD to HHS by creating the Emergency Use Authorization (EUA) framework.

• 1998 Omnibus Consolidated and Emergency Supplemental Appropriations for FY1999 creating Strategic National Stockpile program.

• 2000 Public Health Improvement Act - Title I, Public Health Threats and Emergencies Act. Reworked and expanded the 1983 Public Health Emergencies section. Appropriated funding and established a working group on bioterrorism ‘countermeasures’ research and development.

• 2001 Authorization for Use of Military Force - Construed as putting the United States in a permanent state of war (Global War on Terror) with no limitations in time or geographically.

• 2001 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act

• 2002 Public Health Security and Bioterrorism Preparedness and Response Act

• 2002 Homeland Security Act

• 2004 Project Bioshield Act - Amended and expanded EUA laws. Eliminated Congressional and judicial oversight. Eliminated consumer protections and informed consent rights of human subjects. Established program for ‘qualified countermeasure’ research, procurement, contracting, manufacture, use and liability exemptions. Expanded HHS power to subject people to apprehension and indefinite detention on communicable disease predicates. Expanded coordination among Secretary of Health and Human Services, Secretary of Defense and Secretary of Homeland Security.

• 2005 Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act - Public Readiness and Emergency Preparedness (PREP) Act expanded HHS Secretary emergency powers, reduced judicial and Congressional checks, expanded liability shields for bioweapon/pharmaceutical product manufacturers.

• 2006 Pandemic and All-Hazards Preparedness Act. Further consolidated and centralized HHS Secretary power, subordinated state, county, tribal and local public health and law enforcement systems to federal agencies, set up BARDA (Biomedical Advanced Research and Development Authority) division under HHS.

• 2007 National Institute of Health Reform Act - More reorganization, consolidation of power and funding.

• 2009 Biologics Price Competition and Innovation Act. Title VII of Affordable Care Act (ObamaCare). Related to the legal, approval/authorization, labelling and marketing differences among ‘biosimilars,’ BLA (Biologics License Application) products, and EUA products regulated by FDA.

• 2012 National Defense Authorization Act - Codified authority for US President to order military arrest and indefinite detention of Americans without charge or trial under 10 USC 801 and 2001 AUMF.

• 2012 Food and Drug Administration Safety and Innovation Act

• 2013 National Defense Authorization Act (NDAA) - Authorized domestic deployment of propaganda by the US government, on the American population.

• 2013 Pandemic and All-Hazards Preparedness Reauthorization Act

• 2015 Medicare Access and CHIP Reauthorization (MACRA) Act

• 2016 National Defense Authorization Act. Added ‘prototype’ contracting language to 10 USC 2371b, later renumbered 10 USC 4022, authorizing DOD to contract with pharmaceutical corporations to conduct otherwise illegal medical experiments on the American and global public without notice or consent.

• 2016 21st Century Cures Act - Authorized ‘real world evidence’ instead of valid clinical trials as grounds for FDA endorsement of general use of experimental products; authorized additional nullification of informed consent rights.

• 2017 National Defense Authorization Act - Authorized DOD to conduct military operations on American soil and control American civilians in emergency situations involving Weapons of Mass Destruction, including biological weapons and materials.

• 2019 Pandemic and All-Hazards Preparedness and Advancing Innovation Act - Further consolidated federal power in HHS Secretary’s hands during public health emergencies, further merged public health and law enforcement systems, and further subordinated state, tribal, county and municipal governments and American civilians to direct federal control.

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St. Juliana of Nicomedia