{"id":98122,"date":"2021-11-25T12:25:01","date_gmt":"2021-11-25T16:25:01","guid":{"rendered":"http:\/\/stateofthenation.co\/?p=98122"},"modified":"2021-11-25T12:25:01","modified_gmt":"2021-11-25T16:25:01","slug":"missouri-covid-lawsuit-sets-huge-precedent-for-state-lawsuits-against-biden-administration","status":"publish","type":"post","link":"https:\/\/stateofthenation.co\/?p=98122","title":{"rendered":"

Missouri Covid Lawsuit Sets HUGE Precedent for State Lawsuits Against Biden Administration<\/b><\/h2>"},"content":{"rendered":"
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☕️ Coffee & Covid \u2619 Thursday, November 25, 2021 🦃 SPECIAL THANKSGIVING EDITION 🦠<\/h1>\n

A special holiday message and some deep-dive analysis into a few terrific developments. I explain why the new Florida exemption laws are NOT pre-empted by the federal mandates.<\/h3>\n\n\n\n
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Jeff Childers<\/a><\/div>\n<\/div>\n\n\n\n
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Surprise! How much do I love you guys? Enough to draft up an extra helping of C&C to celebrate our very special, very American holiday. As my Thanksgiving gift to you, a quick message and some thoughtful news analysis, a deeper dive into three big stories today \u2014 including what may be the single most important judicial decision we\u2019ve seen so far.<\/em><\/p>\n

 <\/p>\n

🗞 *A C&C THANKSGIVING MESSAGE* 🗞<\/h3>\n

In the spirit of the First Thanksgiving, in the midst of a war, we yet have a lot of things to be thankful for. Here are mine.<\/p>\n

First of all, I am very thankful for all of you, who are a terrific group of folks who seem to really like sarcastic optimism, a lot, and together form an Army of Davids for positive change.<\/p>\n

I am also very thankful for Florida\u2019s Governor and the state\u2019s legislature, who are creating historic pushback against overreaching federal authority, and who saved a LOT of jobs last week. A journalist asked me yesterday if I thought there would be ripple effects throughout the rest of the country. I said, \u201cyes.\u201d<\/p>\n

I am thankful for my allied attorneys \u2014 too many to mention \u2014 and the brave doctors and researchers who have gone public during the pandemic at enormous personal risk and cost.<\/p>\n

I am thankful for all the new local and national activists who have embraced learning a lot of new skills and putting themselves in the crosshairs with the DOJ and with cancel culture to speak out for what\u2019s right. I especially want to recognize everyone who\u2019s been hauled out of a school board meeting or a commission meeting just for speaking the truth.<\/p>\n

I am thankful for the brave pastors who are, more and more, speaking out against what\u2019s happening and have embraced becoming wartime ministers.<\/p>\n

Next to last, I am SO thankful for all my old and new friends who\u2019re so committed to the fight that they\u2019ve trusted me, and made donations and signed up for recurring subscriptions, which in turn help many, many others. For example, I just represented Ascension employees through a significant injunction hearing and an historic oral ruling. The employees raised about $33K, but the total legal bills were over $100K. I did it anyway, of course, but I\u2019d be out of business fast at that rate without your support.<\/p>\n

To save the rest of the states, we are going to need all the help we can get. Only if you can afford to, please consider whether now is the time you\u2019re ready to commit to the C&C cause. If so, some options are here: https:\/\/www.coffeeandcovid.com\/p\/-learn-how-to-get-involved-<\/p>\n

Finally, I am thankful to God and His Providence for getting us this far, giving us so many wins and so much hope, and for promising that all things ultimately work for good.<\/p>\n

And for causing our enemies to fall into traps of their own making.<\/p>\n

Happy Thanksgiving, Coffee & Covid people!<\/p>\n

<\/h3>\n
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🗞*COVID NEWS AND COMMENTARY* 🗞<\/h3>\n

🔥 Since the Narrative is falling apart, they are starting to get super tricksy. Let\u2019s play \u201cspot the hypnotic logic error\u201d in what UK Prime Minister and top Pharma sales rep Boris Johnson said yesterday. He said:<\/p>\n

\u201cThe double vaccination provides a LOT of protection against serious illness and death, but it doesn\u2019t protect you against catching the disease and it doesn\u2019t protect you from passing it on. So now is the time to get your booster.\u201d<\/p><\/blockquote>\n

First of all, Johnson is a liar. He lied using the word \u201cso.\u201d I should know. That\u2019s one of my favorite words.<\/p>\n

But second, his statement is a dodgy bit of rhetorical sleight of hand using a mental trick to create a hypnotic implied promise that he can never be held accountable for.<\/p>\n

The lie is Johnson\u2019s implication that boosters can stop \u201ccatching the disease\u201d and \u201cpassing it on.\u201d The way he slipped it by without you noticing was by chaining two unrelated sentences together using the word \u201cso,\u201d which creates tension and makes your brain resolve that tension by adding a missing bit of logic. In logical terms, Johnson offered an initial premise and then a conclusion, without a necessary missing second premise. It should look like this:<\/p>\n

Premise 1: the first two jabs fail to prevent spread of the disease<\/p>\n

Premise 2: a booster shot DOES prevent spread of the disease \u2190 MISSING<\/p>\n

Conclusion: \u201cso\u201d you should get a booster shot<\/p>\n

The word of conclusion \u2014 \u201cSo\u201d \u2014 creates a logic vacuum, and your brain automatically supplies the missing second premise. It\u2019s a type of hypnosis. Another way to look at it is by rewriting Johnson\u2019s statement and adding the missing premise. The sentence in brackets, below, is what Johnson knew your brain would automatically fill in to resolve the logical tension created by the missing premise that is necessary for the word \u201cso\u201d to make any sense at all:<\/p>\n

\u201c\u2026 it doesn\u2019t protect you against catching the disease and it doesn\u2019t protect you from passing it on. [BUT THE BOOSTERS DO.] So now is the time to get your booster.\u201d<\/p>\n

See? For the word \u201cso\u201d to make any sense, boosters must solve the problem Johnson identified in the immediately preceding sentence. Since Johnson never actually SAYS that the boosters will stop the spread, he has cover of plausible deniability. That was your brain.<\/p>\n

I guarantee you he spent a long time working on that sentence, no matter how casually he delivered it. But don\u2019t fall for these kinds of tricks. This type of rhetorical hypnosis is what they fall back on when they don\u2019t have the facts to support their Narrative.<\/p>\n

The truth is, they have no reason at all to think boosters will stop the spread.<\/p>\n

\u201cSo.\u201d<\/p>\n

 <\/p>\n

🔥 According to the Israeli newspaper Haaretz, the expert health panel that advises Israel\u2019s government, another Covid wave is coming. They also said vaccine effectiveness is waning and children\u2019s vaccinations won\u2019t stop the pandemic. On Tuesday, Israel launched a new program to jab all its kids aged 5 to 11.<\/p>\n

Professor Eran Segal, who gave a presentation on Tuesday to the government, argued that the level of immunity in Israel has actually FALLEN since November, as reflected in the rise in the number of new confirmed cases. \u201cIn this reality, vaccines aren\u2019t enough to stop the [coronavirus] wave, and we need to continue using all the effective methods that minimize infection without hurting the economy,\u201d a summary of the coronavirus cabinet meeting on Tuesday read.<\/p>\n

Immunity is DROPPING. Injections can\u2019t stop the waves. This won\u2019t end well.<\/p>\n

 <\/p>\n

🔥 Missouri citizens have a lot to be thankful for today. In a remarkable, strongly-worded opinion, the Cole County Circuit Court of Missouri just ended ALL the state\u2019s Covid measures. In Shannon v. Missouri Department of Health, the Court found that the Department of Health\u2019s regulations CANNOT \u201cabolish representative government in the creation of public health laws,\u201d and CANNOT \u201cauthorize closure of a school or assembly based on the unfettered opinion of an unelected official.\u201d<\/p>\n

While we\u2019ve seen other favorable court decisions lately, this one is a true breakthrough. It moves the bar. The Court didn\u2019t just find a technical reason to set aside the DOH\u2019s emergency rules. Instead, the Court found that the ORIGINAL state statutes giving the DOH its emergency authority were themselves completely invalid, for four separate reasons, because the statutes:<\/p>\n

1) violate constitutional separation of powers;<\/p>\n

2) violate the state\u2019s administrative procedure act;<\/p>\n

3) are inconsistent with other public health laws; and<\/p>\n

4) violate constitutional equal protection.<\/p>\n

The Missouri Court doesn\u2019t think it\u2019s particularly complicated. \u201c[DOH] regulations break our three-branch system of government in ways that a middle-school civics student would recognize, because they place the creation of orders or laws, and enforcement of those laws, into the hands of an unelected official.\u201d<\/p>\n

Yes!! We\u2019ve been ringing this bell since summer 2020.<\/p>\n

The Court cited a 2020 Michigan Supreme Court case: \u201cIt is incumbent on the courts to ensure decisions are made according to the rule of law, not hysteria \u2026 One hopes that this great principle \u2014 essential to any free society, including ours \u2014 will not itself become yet another casualty of Covid-19.\u201d It looks like that great principle has NOT become a casualty.<\/p>\n

The Court found that the Missouri emergency health statutes were constitutionally flawed because they create \u201cdouble delegation.\u201d The judge said the state had delegated rulemaking power to the DOH, which then delegated \u201cbroad rulemaking power to an unelected official.\u201d This type of double delegation, said the Court, \u201cis an impermissible combination of legislative and administrative power.\u201d It also explained that the regulations \u201cviolate the principle of separation of powers by unlawfully placing unguided and unbridled rulemaking power in the hands of a public official.\u201d<\/p>\n

You don\u2019t say.<\/p>\n

The judge cited, among other cases, Florida\u2019s lawsuit against the CDC\u2019s \u201cconditional sailing order.\u201d Relying on the cited cases, he listed all the ways that the state\u2019s public health statutes violated separation of powers:<\/p>\n

1) the statutes created \u201copen-ended discretion\u2014a catch-all to permit naked lawmaking by bureaucrats;\u201d<\/p>\n

2) the laws failed to provide any STANDARDS to guide local emergency orders;<\/p>\n

3) the laws not only provided no standards, but they are \u201climitless, standardless, and lack adequate legislative guidance;\u201d<\/p>\n

4) the laws fail to \u201cprovide any procedural safeguards for those aggrieved by the orders;\u201d and<\/p>\n

5) they \u201ccreate a system of statewide health governance that enables unelected officials to become accountable to no one.\u201d<\/p>\n

I think he just described a biomedical dictatorship. The judge wrote that plaintiff Robinson had produced \u201cample evidence\u201d that local health supervisors used the emergency health laws to \u201cexercise unbridled and unfettered personal authority to, in effect, legislate.\u201d<\/p>\n

He described the whole disgusting mess. \u201cLocal health directors have created generally applicable orders, both in writing and verbally, requiring individuals within their jurisdictions to wear masks, limit gathering sizes in people\u2019s own homes, creating capacity restrictions, limiting usage of school and business facilities including tables, desks, and even lockers, mandating spacing between people, [and] ordering students be excluded from school via quarantine and isolation rules created by health directors based on masking or other criteria not adequately\u201d constrained by legal standards.<\/p>\n

The Court held that the statutes\u2019 authorization of local health directors to create and enforce their own orders, and take other \u201ccontrol measures\u201d were \u201cunconstitutional and \u2026 therefore invalid.\u201d<\/p>\n

He didn\u2019t hold back. He said \u201c[t]his system is entirely inconsistent with representative government and separation of powers and makes a mockery of our Missouri Constitution and the concept of separation of powers.\u201d<\/p>\n

A mockery! Finally. A court said it.<\/p>\n

The judge concluded by saying, \u201cMissouri\u2019s local health authorities have grown accustomed to issuing edicts and coercing compliance. It is far past time for this unconstitutional conduct to stop.\u201d<\/p>\n

Happy Thanksgiving!<\/p>\n

The Court\u2019s actual orders, what he then ordered various Missouri agencies to do as a result of his opinion, was the best part. The orders go on for two pages. Among other things, the judge instructed the Secretary of State to \u201cremov[e] the invalid regulations from the register\u201d \u2014 which effectively deletes all the state\u2019s emergency public health statutes. He also ordered the Missouri DOH to \u201cprovide a copy of this order to all local health authorities throughout Missouri, and to post it \u2026 in locations where the same is made publicly available[.]\u201d Haha!<\/p>\n

Then he ordered the Department of Health to pay all the plaintiff\u2019s attorney\u2019s fees! A trifecta win.<\/p>\n

It really is impossible to underestimate how important this ruling is. The combination of a smart judge with smart lawyers who litigated well has now provided a roadmap for other citizens to push back on the never-ending, mushrooming emergency orders in their own states. The reasoning is solid, persuasive, and should easily travel to other states.<\/p>\n

We need to share the news of this order as far and wide as we can. I don\u2019t say that very often.<\/p>\n

 <\/p>\n

🔥 Finally, for Florida employees, there\u2019s been a lot of talk about some employers who are saying they will defy the new laws, citing federal pre-emption by CMS or the Biden executive order (the OSHA mandate is currently stayed). They are wrong. I\u2019m going to explain why, and please feel free to share this with any attorneys in Florida thinking about how to push back against these irrational employers.<\/p>\n

I\u2019d like to tip my hat to attorney Nick Whitney, who did the legal research on this for a case we\u2019re working on.<\/p>\n

To begin with, you need to understand there are two basic types of pre-emption. Pre-emption is the rule that a federal law can supersede a conflicting state law. The two basic types are \u201cexpress\u201d and \u201cimplied\u201d pre-emption. Express pre-emption means that the federal law says \u2014 explicitly \u2014 that it supersedes and replaces any state law on the same subject. None of the Biden mandates say this. That means any pre-emption of the new Florida laws would have to be \u201cimplied.\u201d<\/p>\n

Under implied pre-emption, there are also two types: field and conflict pre-emption. Field pre-emption means the entire subject area \u2014 the \u201cfield\u201d \u2014 is reserved for federal law; only the federal government may create law in that \u201cfield.\u201d Obviously this is not the government\u2019s position. It probably wouldn\u2019t be constitutional anyway, because public health has always traditionally been reserved to the states\u2019 police powers.<\/p>\n

The other type, conflict pre-emption, requires a finding that it is IMPOSSIBLE to comply with both federal and state law, or that the state law somehow materially interferes with federal goals. But the Supreme Court has said there is a presumption that state laws are NOT pre-empted unless it is clear that they are. So we have to start by presuming that the new state exemption laws are valid.<\/p>\n

Since all three mandates already recognize exemptions \u2014 as they must, or they\u2019d be invalid for that reason \u2014 it\u2019s hard to say how the new Florida exemption laws interfere with the federal laws or make it impossible to comply with both. Any law firm that categorically says the new laws are pre-empted is wrong. The new laws are NOT pre-empted by the Biden mandates.<\/p>\n

So.<\/p>\n

I hope you and your family enjoy a joyful and rewarding Thanskgiving today. Don\u2019t eat too much! You\u2019ll regret it tomorrow. Extra coffee is okay though. See you tomorrow.<\/strong><\/p>\n<\/div>\n<\/div>\n

___
\nhttps:\/\/www.coffeeandcovid.com\/p\/-coffee-and-covid-thursday-november-0f9<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

☕️ Coffee & Covid \u2619 Thursday, November 25, 2021 🦃 SPECIAL THANKSGIVING EDITION 🦠 A special holiday message and some deep-dive analysis into a few terrific developments. I explain why the new Florida exemption laws are NOT pre-empted by the … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-98122","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/stateofthenation.co\/index.php?rest_route=\/wp\/v2\/posts\/98122","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/stateofthenation.co\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/stateofthenation.co\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/stateofthenation.co\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/stateofthenation.co\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=98122"}],"version-history":[{"count":0,"href":"https:\/\/stateofthenation.co\/index.php?rest_route=\/wp\/v2\/posts\/98122\/revisions"}],"wp:attachment":[{"href":"https:\/\/stateofthenation.co\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=98122"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/stateofthenation.co\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=98122"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/stateofthenation.co\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=98122"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}