How to Tell the Federal Government ‘No’ on COVID ‘Vaccination’ Mandates.
Oct 21, 2021 by David Fowler
The COVID special session is put up or shut up time for our state politicians. I know from experience that they are in a tough spot. As a state Senator, I sponsored and passed legislation demanded by the federal government under the expressed threat of having several hundred million dollars in federal funding withheld. The average person has no idea what it is like to have people demanding action that, if taken, will bring the federal government down on the state’s head. There is a way through this, but it will require cool heads and out-of-the box thinking.
There are several issues to be evaluated when a private person’s rights conflict with those of another private person (here employer and employee), and people on both sides insist that their side’s rights are superior and civil government must bring its coercive force to bear on their side vis-à-vis that of the other.
In principle, neither is different from the other unless careful distinctions based on particular situations and circumstances are made. Broad principles do exist, but the wise person knows how to discern distinctions and not make broad, sweeping applications.
Moreover, politically speaking, it is easy to kill broadly worded legislation not rooted in a specific situation, because it invites hypothetical questions that are often difficult to answer. Broad bills often expose the lack of finely tuned critical thinking. Its gives opponents a reason to vote against a bill.
It is fatal to legislative success to combine an inability to make wise distinctions with ignorance of the legislative process. In other words, cool heads are needed on the part of both advocates and legislators.
Sadly, too many politicians have come to fear the loudly squeaking wheel of the Robespierre-ian mob for fear of their political heads, but, in the end, the Robespierres wind up losing their own heads.
Tennessee’s legislature can do nothing to prevent the federal government from imposing a COVID-19 injection requirement on an employer (notice it is not on the employee, but the employer—more on that in a minute).
The federal government will do what it is going to do to the employer. No state law can prevent that, and any state law saying the federal law is invalid or null and void will not prevent OSHA from filing an enforcement action against an employer who doesn’t comply.
You may recall that I suggested such a law couple of weeks ago, but I realized on further reflection it would do nothing to bring the issue of federal government jurisdictional overreach to a head. State law must be made to directly conflict with federal law or the federal government will ignore the state law, and for reasons too complicated to explain, a nullification law will not do that. A nullification law, by itself, does not impose a duty on any state official to do anything nor does it positively affirm any right in a person that a person can assert.
What is needed to create a conflict between state and federal law that can be resolved one way or another is a state law that recognizes the rights of individuals regarding their body, and by extension, regarding their medical treatment, Such a law would be grounded in the state’s duty to protect individuals from a non-consensual touching of their bodies by third parties, which is what the common law called the tort of battery.This is done by asserting the state’s jurisdictional authority over the practice of medicine in a state and protection the person in the patient-physician relationship.
If state law protects the right of the individual not to consent to the touching of his or her body, grounded in legitimate confusion between the common public understanding of what a vaccine is and the federal government’s on-going redefinition of that term, then the employer cannot give efficacy to the federal “vaccine” requirement.
Now, when OSHA brings an enforcement action, the employer has a real defense that is based on a law that the state can legitimately claim it has authority to enact, namely, a state law that has recognized and protected a right in the individual that effectively limits the employer’s conduct.
This produces the conflict that is needed between state and federal law by which the jurisdictional dispute over which of the two sovereigns is charged under the U.S. Constitution with governing authority over matters of health practice within a state and the protection of individuals from tortious non-consensual contact with their bodies. It frames the debate in state jurisdiction friendly terms—individual common law relationships and rights and actions taking place strictly within the state’s borders.
Make the federal government claim it has jurisdiction over medical practices occurring strictly within the state and jurisdiction to protect a state resident against common law battery by another state resident committed in the state, and the legislature will have put the federal government in a position it cannot constitutionally avoid or defend.
Where is the federal government’s delegated power over the in-state practice of medicine within a state’s boundaries and over actions for a common law battery (tort) committed within a state?
Not only does no such authority exist, but there are U.S. Supreme Court decisions in the state’s favor. However, only cool heads will take the time to think through this.
I don’t know, but I do know this: Out-of-the-box thinking by legislators on how to challenge the federal government’s power will require cool heads.
Unfortunately, politics today is generally driven by the uninformed, the inexperienced, or hotheads who are often among the uninformed or inexperienced.
But if our politicians can hold those forces off long enough to think outside-the-box, we might see a law enacted in Tennessee that can show the whole nation how to make a constitutional argument against federal government overreach.
Let’s pray cool, deliberative thinking wins the day.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
Cool Heads Are Better Than Hot Ones
There are several issues to be evaluated when a private person’s rights conflict with those of another private person (here employer and employee), and people on both sides insist that their side’s rights are superior and civil government must bring its coercive force to bear on their side vis-à-vis that of the other.
In principle, neither is different from the other unless careful distinctions based on particular situations and circumstances are made. Broad principles do exist, but the wise person knows how to discern distinctions and not make broad, sweeping applications.
Moreover, politically speaking, it is easy to kill broadly worded legislation not rooted in a specific situation, because it invites hypothetical questions that are often difficult to answer. Broad bills often expose the lack of finely tuned critical thinking. Its gives opponents a reason to vote against a bill.
It is fatal to legislative success to combine an inability to make wise distinctions with ignorance of the legislative process. In other words, cool heads are needed on the part of both advocates and legislators.
Sadly, too many politicians have come to fear the loudly squeaking wheel of the Robespierre-ian mob for fear of their political heads, but, in the end, the Robespierres wind up losing their own heads.
How Can the State Stand Up to Federal COVID Treatment Mandates?
Tennessee’s legislature can do nothing to prevent the federal government from imposing a COVID-19 injection requirement on an employer (notice it is not on the employee, but the employer—more on that in a minute).
The federal government will do what it is going to do to the employer. No state law can prevent that, and any state law saying the federal law is invalid or null and void will not prevent OSHA from filing an enforcement action against an employer who doesn’t comply.
You may recall that I suggested such a law couple of weeks ago, but I realized on further reflection it would do nothing to bring the issue of federal government jurisdictional overreach to a head. State law must be made to directly conflict with federal law or the federal government will ignore the state law, and for reasons too complicated to explain, a nullification law will not do that. A nullification law, by itself, does not impose a duty on any state official to do anything nor does it positively affirm any right in a person that a person can assert.
Out-of-the-Box Thinking
What is needed to create a conflict between state and federal law that can be resolved one way or another is a state law that recognizes the rights of individuals regarding their body, and by extension, regarding their medical treatment, Such a law would be grounded in the state’s duty to protect individuals from a non-consensual touching of their bodies by third parties, which is what the common law called the tort of battery.This is done by asserting the state’s jurisdictional authority over the practice of medicine in a state and protection the person in the patient-physician relationship.
If state law protects the right of the individual not to consent to the touching of his or her body, grounded in legitimate confusion between the common public understanding of what a vaccine is and the federal government’s on-going redefinition of that term, then the employer cannot give efficacy to the federal “vaccine” requirement.
Now, when OSHA brings an enforcement action, the employer has a real defense that is based on a law that the state can legitimately claim it has authority to enact, namely, a state law that has recognized and protected a right in the individual that effectively limits the employer’s conduct.
This produces the conflict that is needed between state and federal law by which the jurisdictional dispute over which of the two sovereigns is charged under the U.S. Constitution with governing authority over matters of health practice within a state and the protection of individuals from tortious non-consensual contact with their bodies. It frames the debate in state jurisdiction friendly terms—individual common law relationships and rights and actions taking place strictly within the state’s borders.
Make the federal government claim it has jurisdiction over medical practices occurring strictly within the state and jurisdiction to protect a state resident against common law battery by another state resident committed in the state, and the legislature will have put the federal government in a position it cannot constitutionally avoid or defend.
Where is the federal government’s delegated power over the in-state practice of medicine within a state’s boundaries and over actions for a common law battery (tort) committed within a state?
Not only does no such authority exist, but there are U.S. Supreme Court decisions in the state’s favor. However, only cool heads will take the time to think through this.
What Will Happen.
I don’t know, but I do know this: Out-of-the-box thinking by legislators on how to challenge the federal government’s power will require cool heads.
Unfortunately, politics today is generally driven by the uninformed, the inexperienced, or hotheads who are often among the uninformed or inexperienced.
But if our politicians can hold those forces off long enough to think outside-the-box, we might see a law enacted in Tennessee that can show the whole nation how to make a constitutional argument against federal government overreach.
Let’s pray cool, deliberative thinking wins the day.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
