In this blog article, starting legal analysis of that decision.
Tomorrow the nation will go to election polls.
Elections in the United States are often celebrated as the indicator of the so-called "rule of law".
I have written on this blog recently though how, right about election time and during election campaigns, the most powerful and the most unaccountable branch of the government in the United States, the judiciary, reinforced its gag upon the most knowledgeable group of witnesses about misconduct and unfitness of judges and judicial candidates - attorneys, through "regulation of the practice of law".
The judiciary flat out sent a message through a case suspending a New York attorney of 27 years and forbidding him to earn a living in his profession, and the message was that an attorney cannot dare criticize the particular branch of the government that regulates attorneys, the judiciary - 1st Amendment be damned, due process of attorneys' clients and their right to impartial judicial review be damned.
So, an attorney can exercise his client's due process and 1st Amendment rights or his own 1st Amendment rights to criticize the government, if that government is the judiciary, regulator of attorneys, only at the cost of the attorney's livelihood.
And, an attorney, acting as a citizen and taxpayer, can exercise his right as a citizen and taxpayer paying the salary of government officials and employing them - to engage in public debate about fitness of public officials, if he criticizes Trump and helps "the resistance" as part of a plea deal (Michael Cohen) to gain a lighter sentence in December of 2018, than it is laudable, and if it is criticism of the judicial branch, like attorney Gino Giorgini did, then it is a professional suicide.
And, the U.S. government (public servant, servant of We the People, the popular sovereign) forbids its sovereign (members of We the People) from going outside of the country and complain to international courts, like citizens of other countries are allowed to do, about human rights violations within the country.
Once again. A public servant. Forbidding. Its employer and sovereign, We the People. To complain. About the public servant's unfitness and misconduct. Outside of the country.
That is also called "the rule of law", the U.S. version of it.
And, there is yet another variety of the "rule of law", the U.S. version of it, called "federalism".
It is used by courts, federal appointed judges and state judges who you are going to vote for tomorrow, and by the U.S. Congress, the one you are going to vote for in the midterms tomorrow - every which way that would benefit, no, not You the People, but the so-called "institutional interests", those who lobbied better, who have more money and who paid more to "get the ear" of the right "public servants" to quash the rights of You the People - like the rights of the children who were injured or died from application of vaccines.
Let's see what manipulations of "the law" are used to achieve such a glorious result.
I never voted for Trump and, probably, never will, but Trump is such an interesting phenomenon for me as a legal analyst - with election of Trump so many things became clearer and came to the fore in legal analysis.
For example, that same idea of "federalism".
The clash between regulation of state laws by the federal government, and the right of the states to regulate through their own laws on their own and to be left alone and not subject state laws to regulation and pre-emption by the federal government.
We know from school that the U.S. is a nation of a severely limited (supposedly) government that must act for the benefit of We the People only.
We know from school that the U.S. is a nation of an even more severely limited federal government that can act only on the basis of its Supremacy Clause, Article VI Clause 2 of the U.S. Constitution which includes only THREE things:
"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
Once again, the Supremacy Clause includes 3 things:
- The text of the U.S. Constitution itself (which includes the text of its Amendments);
- The text of "the laws of the United States which shall be made in pursuance thereof", and lawmaking powers in the federal government, by the U.S. Constitution are given, under Article I exclusively to the U.S. Congress; and
- "All treaties made, or which shall be made, under the authority of the United States".
Note the absence in the Supremacy Clause of the so-called "precedents", decisions of federal courts including the U.S. Supreme Court.
SCOTUS decisions are, according to the U.S. Constitution, NOT the Supreme Law of the Land.
Let's look further into the law-making power of the federal government, the U.S. Congress.
The U.S. Congress may only make laws based on authority given to it by one of the provisions of the U.S. Constitution - not to infringe of the power of We the People in general and of We the People, voters in the states.
Here is Article I of the U.S. Constitution. Exclusive law-making powers of the U.S. Congress.
Article I Section 8 and Section 9 Clause 1 define what exactly are the allowed bases of the law-making powers of the U.S. Congress, bear with me, it is about your own rights:
We are reviewing, remember, whether it is legal for the federal government to forbid Americans injured by application of vaccines to seek redress of those injuries through jury trials in state or federal courts.
The U.S. Congress established such a bar by enacting the National Childhood Vaccine Injury Act of 1986, and the U.S. Supreme Court upheld such a bar as lawful in 2011.
The Food and Drug Administration informs you of the long history of how it has come into being and how its existence was approved by the U.S. Supreme Court.
Yet, what it does not inform you about is the very basics of its existence - what clause of Article I was used by the U.S. Congress to enact its enabling federal statute, the Food, Drug and Cosmetics Act of 1938.
It does hint though at which basis was used - by repeatedly using in description of various food and drug-regulating acts "interstate commerce".
Those hints correspond with the description of the National Childhood Vaccine Injury Act of 1986 - and for those preparing to "vote blue because democracy depends on it", consider that this act was passed with bipartisan support:
A Democrat, Rep. Henry A. Waxman, a lawyer, sponsored (introduced) the bill that was enacted as the National Childhood Vaccine Injury Act,
and a Republican president, Ronald Reagan, signed it into law.
Note that in the House the Bill was introduced in the "Energy and Commerce" and the "Ways and Means" Committees.
In other words, the bill was introduced under the power to regulate interstate commerce, not general welfare of people, because - guess what - the U.S. Congress has NO POWER to regulate general welfare of people, that power, under the 10th Amendment, belongs to STATE governments.
But, let's see what the "interstate commerce" clause of Article I - giving exclusive lawmaking power as to federal laws to the U.S. Congress - says.
Article I Section 8 Clause 3 says:
"The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes".
The Congress has no right to regulate commerce between individual sellers within the state, only between governments:
- Between the U.S. government and foreign governments;
- between the states; and
- with the Indian tribes.
- powers of the federal government restricted only to the powers given by the text of the U.S. Constitution, no more, and
- the rights of the states to regulate on issues for which the federal government is not given powers to regulate strictly in the text of the U.S. Constitution, and, most importantly for our analysis,
- about individual rights of the people to all rights that are not given to regulate, strictly by the text of the U.S. Constitution, to the U.S. government, and
More importantly as to the power of the U.S. Congress to even enact The Gun Free School Zones Act of 1990", here is the chain of reasoning of the U.S. Supreme Court in striking down The Gun Free School Zones Act of 1990, in its federal crime part, as unconstitutional and agreeing with the federal court of appeals that reversed the conviction on these grounds:
"respondent challenged his conviction based on his claim that §922(q) exceeded Congress' power to legislate under the Commerce Clause. The Court of Appeals for the Fifth Circuit agreed and reversed respondent's conviction. It held that, in light of what it characterized as insufficient congressional findings and legislative history, "section 922(q), in the full reach of its terms, is invalid as beyond the power of Congress under the Commerce Clause".
Here is the chain of the U.S. Supreme Court's reasoning:
- "The Constitution creates a Federal Government of enumerated powers";
- "The Constitution delegates to Congress the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U. S. Const., Art. I, §8, cl. 3. ";
- "Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse."
- "The commerce power "is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution."
- "It is not intended to say that these words comprehend that commerce,
which is completely internal, which is carried on between man and man in
a State, or between different parts of the same State, and which does not
extend to or affect other States. Such a power would be inconvenient, and
is certainly unnecessary.
The voting record was same as in U.S. v. Lopez:
"Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion, post, p. 627. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined, post, p. 628. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined, and in which Souter and Ginsburg, JJ., joined as to Part I—A, post, p. 655."
The reasoning of the U.S. Supreme Court in denying federal civil remedies to victims of rapes was as follows:
"In these cases we consider the constitutionality of 42 U. S. C. § 13981, which provides a federal civil remedy for the 602
an explicit connection with or effect on interstate commerce." Id., at 562. Such a jurisdictional element may establish that the enactment is in pursuance of Congress' regulation of interstate commerce.
But, probably, the main, most forceful argument of the U.S. Supreme Court was - while you start trying to stretch the text and meaning of the statute and try to connect anything under the sun with "interstate commerce", when does it end. Such boundless interpretation of the Interstate Commerce Clause gives unlimited power to the federal legislature and government and undermines the whole idea of "limited federal government", clearly embedded into the U.S. Constitution:
"Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the[se] theories . . . , it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate." Ibid. "Since the U.S. Supreme Court found no connection between giving rape victims federal civil remedies for state crimes (note that in that case there was no state criminal conviction, or even state criminal charges filed, or state lawsuit filed by the supposed victim) and regulation of interstate commerce by the federal government, the portion of Violence Against Women Act was struck as unconstitutional.
And here comes another kicker.
There was NO analysis as to whether the U.S. Congress exceeded its powers under the Interstate Commerce in enacting the Food, Drug and Cosmetics Act of 1938, or the National Child Vaccine Injury Act of 1886.
Even though it was analyzing a non-economic activity of immunizing children, a medical activity squarely falling within the care for general welfare of the population, reserved to the states and directly to the people by the 10th Amendment.
In fact, the U.S. Supreme Court has actually stated that "in the 1970’s and 1980’s vaccines became, one might say, victims of their own success. They had been so effective in preventing infectious diseases that the public became much less alarmed at the threat of those diseases, and much more concerned with the risk of injury from the vaccines themselves."
So, the case was about the public perception of vaccines as unsafe and risky - causing permanent disabilities and deaths - to children.
And the response of the federal government to that public concern was to block access of victims to state courts to obtain full discovery of what went wrong and full jury adjudication of victims' claims was - to block access of the victims to state courts.
What does it have to do with commerce?
There is not one word in the vaccine case of 2011 about the statute being unconstitutional and in excess of the U.S. Congress commerce power.
Likely, because too many careers and too much money was riding on this case, and because the pharma lobby appeared to be more powerful than the gun lobby and the womens' rights lobby.
And that is the only reason why in this "rule of law" nation child victims of unsafe vaccines got barred from access to state court remedies, remedies that are allowed to everybody else for personal injuries from OTC or prescription drugs or from medical devices other than vaccines - which is, to begin with, a major access-to-court, due process and equal protection of laws problem.
And that is despite the fact that barring victims of personal injuries that occurred due to a non-commercial transaction within the state (as in - vaccination of a child) from receiving a remedy for that injury in a state court has absolutely nothing to do with regulation of "interstate commerce", which, as Article I Section 8 Clause 3 provides, has to do ONLY and exclusively with regulation of commerce between GOVERNMENTS and not between private individuals, or between private individuals and private companies/corporations.
For continuation of analysis of that extraordinary case, with its extraordinary background and history and its extraordinary effect upon the rights of children and adults for access to court to redress injuries from unsafe vaccines (including permanent disability and death), stay tuned for my next article.