Trying to make noise at the Supreme Court

Will the United States Supreme Court take my case to consider whether ordering citizens to be injected with an experimental drug a violation of the US Constitution?

I did not mean for this to be my first post on Substack, but I might as well start with a bang. Yesterday, I filed a Petition for Writ of Certiorari in the case of Malcolm Johnson v. Tina Kotek (which was filed with an Appendix). Here are the questions presented:

The well-established law is that medical experimentation on humans cannot be performed without informed consent, or with any degree of duress or coercion. COVID-19, however, turned the world upside down and government officials began to order injections of experimental vaccines on penalty of losing one’s job. Oregon’s executive officials mandated all executive branch employees, healthcare workers, and school employees be vaccinated for COVID-19. These mandates were deliberately calculated acts with knowledge that the only vaccines available to satisfy the mandate were experimental. This abrogation of the right of informed consent was not only unconstitutional, but a violation of the federal statute authorizing emergency use of experimental vaccines.

Question 1: What is the proper standard of review for a Fourteenth Amendment Due Process challenge to a State official’s order that individuals be injected with experimental drugs?

Question 2: Is petitioners’ right to informed consent protected by the Privileges or Immunities Clause of the Fourteenth Amendment?

Question 3: Can qualified immunity apply to a premeditated “mandate” made with knowledge that it violated constitutional and statutory rights as well as fundamental human rights?

Question 4: Does a private right of action exist for violation of rights under 21 U.S.C. § 360bbb-3 via 42 U.S.C. § 1983?

You can read the rest in the Petition, but let me tell you some of the back story, how I got started on this journey. 

In the summer of 2021, I could not believe the extent of government tyranny that I was seeing. Kate Brown, the then Governor of Oregon, was ordering state employees, school employees and medical employees to be injected with an experimental drug or lose their job. Ordinary people (meaning people unburdened by law school indoctrination) seemed to have a better sense of this than attorneys. I heard ordinary people say things like, ‘what about the Nuremberg Code; they hung Nazi doctors for forced experimentation on human beings.’ The lawyerly response was, the Nuremberg Code is not a federal statute. (And I can’t tell you how many times I heard that from lawyers over the past 3 years.) The ordinary person responds, ‘What the f*ck difference does that make?’ And they are right.

Realizing innately that such a response was inane, I personally never gave anyone the excuse that the Nuremberg Code was not a federal statute. But knowing that was the case, I thought and thought about how I could use the Nuremberg Code to defeat these mandates. Then I discovered the amazing case of Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992). Siderman explains that the rights described in the Nuremberg Code are a jus cogens norm which “is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Therein lies the golden nugget: no derogation. It means no compromise.

You see, most people do not understand that you can have your constitutional rights violated and still lose in a battle with the government. The key is the standard of review. Everyone, for example, has a constitutionally protected liberty interest to refuse medical treatment. So, you think, you should win when the government violates your constitutionally protected liberty interest by telling you that you have to take a vaccine. Not so fast. The government also has an interest. And if a court decides that the standard of review for balancing your constitutional right against the government’s interest is “rational basis” then the government (almost) always wins. In contrast, if a court decides that the balancing test is “strict scrutiny,” the government (almost) always loses. The key to winning or losing is not whether you have a constitutional right that has been violated by the government. The key is the standard of review.

All of the cases—every single one—mounting a Fourteenth Amendment Due Process Clause challenge to the COVID-19 vaccine mandates have been defeated because the courts have said the standard of review is rational basis based on the odious 1905 Supreme Court case of Jacobson v. Massachusetts, 197 U.S. 11 (1905). Every single case across the county has lost for this reason. (Note however, that cases challenging the failure to honor a religious exemption are different; that is a First Amendment issue and generally has a balancing test of strict scrutiny; those COVID-19 vaccine cases are now winning). I’ll defer talking more about Jacobson to another post, there is a fascinating story there, but let’s get back to the Nuremberg Code.

In the summer of 2021, I looked around at other cases challenging vaccine orders similar to Oregon’s and I did not like what I found. No one was arguing the Nuremberg Code and how that fit into the constitutional analysis. No one seemed to recognize the issue. Am I crazy? Why is no one recognizing the issue with experimental vaccines? Why is no one arguing this? I could not believe it. I thought that maybe I had take it on myself, because I saw no lawyers advancing what I thought should be a winning argument.

Reading what the Siderman case said about jus cogens norms and no derogation, I realized how important it was. What is “no derogation”? It is a standard of review. Now the U.S. Supreme Court has never recognized “no derogation” as a standard of review, and no other court in the United States has applied it as a standard of review, but it is a standard of review. Naturally, there would be a lack of caselaw precedent because, until the COVID-19 vaccines, no one was insane enough to have ordered ordinary citizens to get injected with an experimental drug. Too, Siderman did not actually apply “no derogation” as a standard of review, it just described the meaning of a jus cogens right on its way to addressing a different question.

No derogation is a higher standard of review than strict scrutiny. It means that the government is not even permitted to explain why it should be able to issue orders that people be injected with experimental drugs. It means we do not care what rational the government might have, it can stick it where the sun don’t shine, because for a jus cogens norm, the right of the people is absolute. (Don’t worry, I didn’t write “sun don’t shine” to the U.S. Supreme Court.)

Now I had my legal argument, what to do with it. I was a patent/trademark/copyright litigator; and before that a commercial litigator. I had never sued the government before. I did not know how to sue the government. I knew nothing about all the immunities involved. And I had no clients. I figured all that out, and I turned myself into a civil rights lawyer. I filed this suit against Governor Brown on October 12, 2021. Nearly 100% of my practice now is suing the government, and it feels good. Fighting government tyranny is much more gratifying than other legal work I’ve done because it helps ordinary people. People are so thankful to have someone stick up for them.

That is how I got started on this path. Of course, I lost this case in the district court and then in the 9^th Circuit, as you can read in the Petition. This is the last chance for Johnson v. Kotek. Pray for the Supreme Court to have the wisdom to accept this case.