Covid-19 Mandates, are they Constitutional?

[Callen]

You would be mistaken. Biden issued a federal mask mandate his very first day in office.

The conversation that prompted my post was about vaccine mandates not mask mandates.

 

[Captain Adverse]

My state mandates that I carry car insurance and if caught driving without it I can be arrested. Am I then seized for the time I'm in the insurance agent's office? I'd suggest that the seizure only happens when the cop arrests me for not getting insurance and not before.

Search and seizure fall under the 4th amendment which deals with privacy and criminality. It cannot be that any directive given by the government to compel action by a citizen that does not implicate privacy represents a seizure. If that were the case the government could literally not demand that a citizen do anything.

False equivalence. For many reasons, not the least of which is that you are discussing property rights in the example and the use of said property on public routes.

But one does not NEED a car to move around as long as one has the ability to move about naturally. Thus I do not NEED a license unless I wish to drive a car.

Now explain how I NEED a "mask" or a "vaccine" if I am immune, or have a strong immune system so I suffer mildly, or I don't give a damn if I live or die via getting this disease?

As to clothing freedom of expression has nothing to do with my argument. If government can't mandate wearing a mask then it similarly cannot mandate wearing clothes. The first amendment in only implicated with the government tells you what to wear. Demanding that you wear clothes doesn't violate the 1st amendment.

You brought up clothing, and I refuted the value of that example.

The government should not "mandate wearing clothes" IMO, although common sense and human experience should teach someone that clothing protects from weather and other hindrances in a society. But we have many examples around the world of cultures which either have no, or limited "clothing requirements" and do just fine.

But I still reject the argument on the principle that clothing is more a custom of "polite" society out of cultural concerns over emotional reactions to the naked body. In any case it is still "expression" as one could wear shorts or a bathing suit all day perfectly legally. It would be up to private citizens, exercising their own property rights, to say whether that was sufficient to enter their abode or places of business.

Which leads me to the point that private citizens can always "regulate" whom to encounter, let on their property, and what is needed to engage with them. One is always free to limit oneself. The problem is allowing government to do so in more and more ways until one becomes the servant of those who govern, and not vice versa.

 

[rahl]

No, mask mandates are not constitutional. It's why nobody has or can be penalized for not wearing one. The ONLY thing that can be done is the person can be asked to leave the premises. If they refuse, they are now trespassing and can be removed by force.

People are clamoring for mandatory vaccines, which are also not constitutional. The govn't has no authority or constitutional power to force a single person to get vaccinated. And before anyone starts shouting "but jacobson!!" that was about vaccinations in public schools, and jaobson remained unvaccinated after the ruling. The govn't has no authority to force anyone to get vaccinated. However, this does not mean that private businesses can not mandate vaccination for entry, or for their employees to remain employed. It's just that the govn't has no ability to do so, other than for govn't employees for the same reason private businesses can require it.

 

[Glitch]

The conversation that prompted my post was about vaccine mandates not mask mandates.

Both are impeachable violations of the US Constitution.

 

[Gaius46]

False equivalence. For many reasons, not the least of which is that you are discussing property rights in the example and the use of said property on public routes.

But one does not NEED a car to move around as long as one has the ability to move about naturally. Thus I do not NEED a license unless I wish to drive a car.

Now explain how I NEED a "mask" or a "vaccine" if I am immune, or have a strong immune system so I suffer mildly, or I don't give a damn if I live or die via getting this disease?



You brought up clothing, and I refuted the value of that example.

The government should not "mandate wearing clothes" IMO, although common sense and human experience should teach someone that clothing protects from weather and other hindrances in a society. But we have many examples around the world of cultures which either have no, or limited "clothing requirements" and do just fine.

But I still reject the argument on the principle that clothing is more a custom of "polite" society out of cultural concerns over emotional reactions to the naked body. In any case it is still "expression" as one could wear shorts or a bathing suit all day perfectly legally. It would be up to private citizens, exercising their own property rights, to say whether that was sufficient to enter their abode or places of business.

Which leads me to the point that private citizens can always "regulate" whom to encounter, let on their property, and what is needed to engage with them. One is always free to limit oneself. The problem is allowing government to do so in more and more ways until one becomes the servant of those who govern, and not vice versa.

Why is that fact that I'm talking about use of a car on a public make it different. The government mandates I get insurance that I go to a certain and perform a certain function. That is not different from being told to get a vaccine from the perspective of being "seized." In fact I'd argue that the 4th amendment has nothing to do with either scenario.

The onus is on you to explain why getting a vaccine is a seizure when there is no criminal investigation that is causing the person to be detained and no evidence is being collected. My example is simply there to illustrate the untenableness of your position.

In terms of clothing I asked for a limiting principal. If states cannot mandate masks under the 10th amendment what is the limit of their authority.

As far as why you need to wear a mask. There is very strong evidence that masks are effective in hindering the transmission of respiratory diseases. From a public health perspective the government has a strong interest in protecting unvaccinated people from themselves because as more get sick they take up scarce hospital resources which could impact others. You can of course argue that there is evidence that masks don't reduce transmission but courts would almost certainly side with the government's determination if it was a close call on science (it isn't in any case).

 

[Gaius46]

What those "for the utilitarian view" leave out of their quotation from Jacobson v. Massachusetts, 197 U.S. 11 (1905) is:
{emphasis added}

Which means that if the government seeks to deprive anyone of their life, liberty, or property, they must provide each individual their right to due process of law first, as required by both the Fifth and Fourteenth Amendments. Pandemics or declarations of emergency is not an excuse for the government to abandon the US Constitution.

That is not the way the system works. Hell I can't imagine how a system like the one you're proposing would work. Do you expect every person who objects to a law on Constitutional grounds to be given their day in court before they've been arrested/ticketed/whatever? That is unworkable.

People violate a law and then claim a rights violation. Courts rule on that after the fact - that's when due process comes into play, not before.

 

[Captain Adverse]

Why is that fact that I'm talking about use of a car on a public make it different. The government mandates I get insurance that I go to a certain and perform a certain function. That is not different from being told to get a vaccine from the perspective of being "seized." In fact I'd argue that the 4th amendment has nothing to do with either scenario.

If you can't understand the difference between YOU a "person" and some item like a car, then I don't know how to reason with you.

The onus is on you to explain why getting a vaccine is a seizure when there is no criminal investigation that is causing the person to be detained and no evidence is being collected. My example is simply there to illustrate the untenableness of your position.

It is a compulsion on you, the person in and of oneself, which is an invasion of your individual right to control over yourself. It makes YOU the property of others, much like that car is your property. That is anathema to liberty and individual freedom because you have been "seized" and compelled to submit yourself to the will of others.

If you cannot understand the difference, again I don't know how to reason with you.

In terms of clothing I asked for a limiting principal. If states cannot mandate masks under the 10th amendment what is the limit of their authority.

Not going to go down that road again. I've responded sufficiently.

As far as why you need to wear a mask. There is very strong evidence that masks are effective in hindering the transmission of respiratory diseases. From a public health perspective the government has a strong interest in protecting unvaccinated people from themselves because as more get sick they take up scarce hospital resources which could impact others. You can of course argue that there is evidence that masks don't reduce transmission but courts would almost certainly side with the government's determination if it was a close call on science (it isn't in any case).

So based on this view, by all means feel free to make your own choice. No one is arguing that YOU cannot choose to submit.

But I do not agree that government should be given the power to "protect people from themselves" unless such people are intentionally acting in an irrational manner and the threat is both extreme and unmistakable.

Nothing is irrational in my argument. I simply do not consider this particular disease so major a threat (as I would something like Ebola, Hanta, or other clearly and universally dangerous diseases) as to allow YOU to dictate to ME what I must do to protect YOU.

 

[Gaius46]

If you can't understand the difference between YOU a "person" and some item like a car, then I don't know how to reason with you.



It is a compulsion on you, the person in and of oneself, which is an invasion of your individual right to control over yourself. It makes YOU the property of others, much like that car is your property. That is anathema to liberty and individual freedom because you have been "seized" and compelled to submit yourself to the will of others.

If you cannot understand the difference, again I don't know how to reason with you.



Not going to go down that road again. I've responded sufficiently.



So based on this view, by all means feel free to make your own choice. No one is arguing that YOU cannot choose to submit.

But I do not agree that government should be given the power to "protect people from themselves" unless such people are intentionally acting in an irrational manner and the threat is both extreme and unmistakable.

Nothing is irrational in my argument. I simply do not consider this particular disease so major a threat (as I would something like Ebola, Hanta, or other clearly and universally dangerous diseases) as to allow YOU to dictate to ME what I must do to protect YOU.

I understand the difference and my point is that under US law it is irrelevant. You make the argument that this is a seizure under the 4th amendment despite the fact that the 4th amendment deals with privacy in the context of government investigations and seizures relate to the collection of evidence and the detainment of a person during an investigation. None of those apply here. Your responses, unless I missed it, have not addressed that point. My argument is simple.

Being directed to be vaccinated is not a seizure, plain and simple.
Mask mandates fall under the States 10th amendment police powers

and the later incorporation of the 4th amendment does not matter because the 4th as normally understood does not apply.

I gave you the scientific rationale for wearing a mask. As for public policy it has nothing to do with choice or protecting people from themselves and everything to do with keeping idiots from getting sick so that they won’t tie up resources that might be needed by non-idiots. Otherwise I personally don’t give a damn.

 

[Captain Adverse]

I understand the difference and my point is that under US law it is irrelevant. You make the argument that this is a seizure under the 4th amendment despite the fact that the 4th amendment deals with privacy in the context of government investigations and seizures relate to the collection of evidence and the detainment of a person during an investigation. None of those apply here. Your responses, unless I missed it, have not addressed that point. My argument is simple.

I have addressed it. IMO it is you who refuse to see that requiring someone to do something is a "seizure" of that person by compulsion under penalty of law. Seizures do not have to be permanent. When a police officer "stops" you, your person has been "seized," however temporarily it might be.

So consider a "mandate." In this case vaccination mandates. Are there any penalties for failure to comply? Is "restraint" an action under color of law, if not a penalty (imprisonment, fines, etc.) under law? All of which "infringe" on an individual's freedom do they not?

Being directed to be vaccinated is not a seizure, plain and simple.

I disagree, for all the reasons stated, as it is a direct violation of body sovereignty.

Mask mandates fall under the States 10th amendment police powers

Yet still the Fourth Amendment protections have been incorporated as applying to the States.

and the later incorporation of the 4th amendment does not matter because the 4th as normally understood does not apply.

As "normally understood" seems more a matter of confirmation bias, than fact. My argument is that it can be presented as a legal challenge which must then be interpreted by the Court, hopefully up to the SCOTUS if necessary.

I gave you the scientific rationale for wearing a mask. As for public policy it has nothing to do with choice or protecting people from themselves and everything to do with keeping idiots from getting sick so that they won’t tie up resources that might be needed by non-idiots. Otherwise I personally don’t give a damn.

I gave you the Libertarian (IMO more correctly the Classical Liberal) rationale for arguing against that position using the 4th Amendment as a basis. Perhaps some other scholars could present a different approach.

Calling people "idiots" for disagreeing is not an argument. It is an ad hominem response, making it both unsound and invalid.

This is about individual rights and freedoms as opposed to typical utilitarian arguments which always assert the needs (read wants) of the many must always outweigh those of the few, or the one.

 

[Gaius46]

I have addressed it. IMO it is you who refuse to see that requiring someone to do something is a "seizure" of that person by compulsion under penalty of law. Seizures do not have to be permanent. When a police officer "stops" you, your person has been "seized," however temporarily it might be.

So consider a "mandate." In this case vaccination mandates. Are there any penalties for failure to comply? Is "restraint" an action under color of law, if not a penalty (imprisonment, fines, etc.) under law? All of which "infringe" on an individual's freedom do they not?



I disagree, for all the reasons stated, as it is a direct violation of body sovereignty.



Yet still the Fourth Amendment protections have been incorporated as applying to the States.



As "normally understood" seems more a matter of confirmation bias, than fact. My argument is that it can be presented as a legal challenge which must then be interpreted by the Court, hopefully up to the SCOTUS if necessary.



I gave you the Libertarian (IMO more correctly the Classical Liberal) rationale for arguing against that position using the 4th Amendment as a basis. Perhaps some other scholars could present a different approach.

Calling people "idiots" for disagreeing is not an argument. It is an ad hominem response, making it both unsound and invalid.

This is about individual rights and freedoms as opposed to typical utilitarian arguments which always assert the needs (read wants) of the many must always outweigh those of the few, or the one.

You get the last substantive word. I disagree as a matter of 4A jurisprudence. I think your argument has to cross a very high hurdle but we’re clearly not about to change each other’s minds.

I would be very interested to what the courts would do if this argument were ever put before them.

 

[roguenuke]

Both are impeachable violations of the US Constitution.

Anything is an impeachable offense, but the listed mandates are not violations of the US Constitution.

 

[Glitch]

Anything is an impeachable offense, but the listed mandates are not violations of the US Constitution.

Not true. To be an impeachable offense according to the US Constitution the individual must be accused of either "Treason, Bribery, or other high Crimes and Misdemeanors." Which is why the last two impeachments of Trump are null and void, since they violated Article II, Section 4 of the US Constitution and did not present any crimes in the articles of impeachment. The accusation of a crime is required.

 

[roguenuke]

Not true. To be an impeachable offense according to the US Constitution the individual must be accused of either "Treason, Bribery, or other high Crimes and Misdemeanors." Which is why the last two impeachments of Trump are null and void, since they violated Article II, Section 4 of the US Constitution and did not present any crimes in the articles of impeachment. The accusation of a crime is required.

"Other high crimes and misdemeanors" can mean pretty much whatever the House can sell as such. A high crime can be corruption or something akin that is not an actual criminal offense listed on the books.

And no, those two impeachments were not "null and void". No President has been successfully removed from office with Impeachment proceedings, but 4 now have occurred.

 

[Glitch]

"Other high crimes and misdemeanors" can mean pretty much whatever the House can sell as such. A high crime can be corruption or something akin that is not an actual criminal offense listed on the books.

And no, those two impeachments were not "null and void". No President has been successfully removed from office with Impeachment proceedings, but 4 now have occurred.

No, it cannot. It can only mean what the US Constitution actually says. High crimes refers to felonies, and misdemeanors covers low crimes. In either case, high or low it doesn't matter, but there must be an accusation of a crime.

There have only been two legitimate presidential impeachments, both against Democrats. The last two violated the US Constitution because of a lunatic House Speaker, and are therefore null and void. They will go down in history as footnotes on how NOT to impeach a President.

 

[roguenuke]

No, it cannot. It can only mean what the US Constitution actually says. High crimes refers to felonies, and misdemeanors covers low crimes. In either case, high or low it doesn't matter, but there must be an accusation of a crime.

Nope, not true. Corruption is a crime but not really in the criminal code and even when written, the founding fathers recognized that misuse of power as President could be considered a crime in and of itself even if not codified.

 

[Glitch]

Nope, not true. Corruption is a crime but not really in the criminal code and even when written, the founding fathers recognized that misuse of power as President could be considered a crime in and of itself even if not codified.

I know you leftists love to manufacture BS out of thin air, but that is not how it works. Either it abides by exactly what the US Constitution states, or it violates the US Constitution. Leftist filth cannot simple make up whatever pleases them.

 

[roguenuke]

I know you leftists love to manufacture BS out of thin air, but that is not how it works. Either it abides by exactly what the US Constitution states, or it violates the US Constitution. Leftist filth cannot simple make up whatever pleases them.

That simply isn't true. Interpretation is part of any language, including that in the Constitution.

Impeachable Offenses

www.law.cornell.edu

It doesn't matter what you want to believe. The truth is that Congress has the power to decide what an impeachable offense of the President or VP is, according to the Constitution. It is their decision.

 

[Glitch]

That simply isn't true. Interpretation is part of any language, including that in the Constitution.

Impeachable Offenses

www.law.cornell.edu

It doesn't matter what you want to believe. The truth is that Congress has the power to decide what an impeachable offense of the President or VP is, according to the Constitution. It is their decision.

No they do not. The US Constitution decides what is an impeachable offense, not Congress. Congress was never given the authority to manufacture whatever excuse they wanted to impeach someone, which means that they don't have that authority. Which makes any impeachment that is not conducted in a manner as the US Constitution proscribes unconstitutional and therefore null and void.

 

[Rosie1]

Oregon went back to a mask mandate (indoor public and/or crowds) because our hospital ICU's are filling. Many people hate our Governor, but she's willing to take the flack, because she cannot run again for that office, next time. Masks are mandated in schools, and teachers are required to get shots. Teacher, school staff and parents are in verbal battles. Why people do not get their shots, refuse to get them for their children (12 and) up, and do not seem to care that their mask refusal could infect others; makes no sense to me. The only winner I can see is the COVID Delta Variant. The virus goes on and on.

 

[roguenuke]

No they do not. The US Constitution decides what is an impeachable offense, not Congress. Congress was never given the authority to manufacture whatever excuse they wanted to impeach someone, which means that they don't have that authority. Which makes any impeachment that is not conducted in a manner as the US Constitution proscribes unconstitutional and therefore null and void.

You simply have no legal evidence to support this position. Notice how neither of Trump's Impeachments were legally declared "null and void". He was simply acquitted, they did not get enough Senate votes to convict him, remove him from office.

 

[Glitch]

You simply have no legal evidence to support this position.

Of course I do, it is called the US Constitution. You may have heard of it.

Unless the federal government is specifically granted a power by the US Constitution they are prohibited from exercising said power. Since the US Constitution very specifically instructs the House of Representatives what constitutes grounds for impeachment, the Speaker of the House must abide by that specific instruction and cannot just manufacture any reason they please.

If the US Constitution wanted to give the Speaker of the House the authority to manufacture any excuse they wished to impeach someone then it would have given them that authority. It didn't, so that authority doesn't exist.

Notice how neither of Trump's Impeachments were legally declared "null and void". He was simply acquitted, they did not get enough Senate votes to convict him, remove him from office.

Only Democrat scum continue to believe in the delusion that Trump was somehow impeached. Reality was never the Democrats strong suit. It is one of the symptoms of their mental illness known as "liberalism."

Even the Chief Justice of the Supreme Court acknowledged that Trump's so-called impeachment was a complete Democrat farce by refusing to attend, as required by the US Constitution.

 

[roguenuke]

Of course I do, it is called the US Constitution. You may have heard of it.

Unless the federal government is specifically granted a power by the US Constitution they are prohibited from exercising said power. Since the US Constitution very specifically instructs the House of Representatives what constitutes grounds for impeachment, the Speaker of the House must abide by that specific instruction and cannot just manufacture any reason they please.

If the US Constitution wanted to give the Speaker of the House the authority to manufacture any excuse they wished to impeach someone then it would have given them that authority. It didn't, so that authority doesn't exist.


Only Democrat scum continue to believe in the delusion that Trump was somehow impeached. Reality was never the Democrats strong suit. It is one of the symptoms of their mental illness known as "liberalism."

Even the Chief Justice of the Supreme Court acknowledged that Trump's so-called impeachment was a complete Democrat farce by refusing to attend, as required by the US Constitution.

The US Constitution is always opened to interpretation. And the Chief Justice did not do what you claim. He didn't actually comment on the constitutionality of the impeachment at all.

 

[Captain Adverse]

Not true. To be an impeachable offense according to the US Constitution the individual must be accused of either "Treason, Bribery, or other high Crimes and Misdemeanors." Which is why the last two impeachments of Trump are null and void, since they violated Article II, Section 4 of the US Constitution and did not present any crimes in the articles of impeachment. The accusation of a crime is required.

You simply have no legal evidence to support this position. Notice how neither of Trump's Impeachments were legally declared "null and void". He was simply acquitted, they did not get enough Senate votes to convict him, remove him from office.

It is true, historically that the intent was to limit impeachments to actual "crimes."

It is also true that in at least the first attempt the accusation of obstruction of Congress is a Federal crime (18 U.S. Code 1505), while "abuse of power" which is NOT a crime itself but might still fall under malfeasance of office (25 CFR section 11.446)

The second impeachment was for "incitement of insurrection" which falls under 18 U.S. Code Section 2383.

However, neither of those charges were valid IMO, because the first was based solely on allegations of improper conduct dealing with Ukraine. Then IMO the second was a knee-jerk (and IMO spiteful) attempt to either remove him despite his already expected departure from office, or further "blacken his name" to prevent a future run for office.

IMO that is currently what the 01/06/21 "Investigation" is all about. Preventing Trump from being re-elected, AND to keep the issue at the forefront of politcal reporting so as to prevent losses in the next Congressional bi-election.

 

[roguenuke]

It is true, historically that the intent was to limit impeachments to actual "crimes."

It is also true that in at least the first attempt the accusation of obstruction of Congress which is a Federal crime, and "abuse of power" which is NOT a crime itself but might fall under malfeasance of office.

The second impeachment was for "incitement of insurrection" which falls under 18 U.S. Code Section 2383.

However, neither of those charges were valid IMO, because the first was based solely on allegations of improper conduct dealing with Ukraine. Then IMO the second was a knee-jerk (and IMO spiteful) attempt to either remove him despite his already expected departure from office, or further "blacken his name" to prevent a future run for office.

IMO that is currently what the 01/06/21 "Investigation" is all about. Preventing Trump from being re-elected, AND to keep the issue at the forefront of politcal reporting so as to prevent losses in the next Congressional bi-election.

It doesn't matter how much anyone wants to complain about "that isn't valid". They were accepted as Articles of Impeachment and passed. The Constitution does not limit it to any specific crimes nor the criminal code itself. Anything that anyone could consider a "crime" could be used for Impeachment proceedings and this is precedent.

 

[Captain Adverse]

It doesn't matter how much anyone wants to complain about "that isn't valid". They were accepted as Articles of Impeachment and passed. The Constitution does not limit it to any specific crimes nor the criminal code itself. Anything that anyone could consider a "crime" could be used for Impeachment proceedings and this is precedent.

(Sigh) Unfortunately for me you responded too soon. So please refer to the corrections in the post you cited.

I often type a response, then fact check and correct. Hence the request to "wait" in my tagline.

As for your comment? Congress under whichever Party controls it can pretty much "impeach" for whatever it wants. Of course, when such action is obviously "partisan," as in the first Impeachment, the perpetrators knew it would not fly but did it anyway simply to "brag" and also "damage" the target.

That first impeachment simply gave the Anti-Trump segments of society ammunition for their spite. The second impeachment's purpose I've already mentioned in the post you replied to.