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Vaccine Mandates, George Mason, and the Bill of Rights

Jenin Younes & Todd Zywicki join me to discuss the constitutionality of blanket vaccine mandates.

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“There is a Passion natural to the Mind of man, especially a free Man, which renders him impatient of Restraint.” ― George Mason

George Mason is rolling in his grave. Or at least, he was, until Professor Todd Zywicki was finally exempted from George Mason University’s new mandatory vaccination policy. Zywicki, a professor at the Antonin Scalia School of Law and frequent guest on the show of ideas, is no Anti-Vaxxer; he is, however, an ardent believer in the Constitution and Bill of Rights. These documents, if they are not to be considered artifacts, guarantee all Americans the right to privacy and the freedom from substantial interference with one’s bodily autonomy without due process.

Zywicki was one of millions of Americans who already had the virus, and thus acquired the natural immunity that the vaccine is meant to mimic. That wasn’t considered a good enough reason for GMU to exempt him, even though natural infection has been shown to create longer-lasting immunity. Faced with the threat of termination, Zywicki stood his ground — penning a WSJ article to make his case in the court of public opinion. He argued that those with prior infection were at a higher risk of adverse reaction, for a vaccine that would provide no proven additional benefits. Backed by the New Civil Liberties Alliance, and his attorney Jenin Younes, he then filed briefs to challenge the constitutionality of the workplace policy, which is becoming increasingly common across the country. Since then, the George Mason University administration backed down, but the legal questions are far from settled.

I was joined by Todd and his lawyer, Jenin to review the case that would have been argued — both on the grounds of the latest science around natural immunity, as well as the constitutional considerations around privacy and bodily autonomy. We may not know what George Mason would have thought about the studies showing the relative risks and benefits of vaccination for the naturally immune, but I’d be willing to bet that the founder who insisted on a Bill of Rights before ratifying the Constitution would have opposed his namesake’s draconian mandate.

TRANSCRIPT

Bob Zadek 00:13

This morning, our guest is the classic David versus Goliath story. Only this wasn’t even a close fight. Goliath caved as soon as David put a rock in his hand. What does this have to do with life in libertarian America? A whole lot. Our guest this morning took issue with his employer requiring that he be vaccinated as a condition of teaching law at his law school. He objected not because he is an anti-vaxxer. He objected because he didn’t have to get vaccinated, since he’d had the COVID virus, and therefore he had at least the same level of immunity as if he had been vaccinated. If the goal was to make sure that this college professor wasn’t endangering students and other faculty members, that danger didn’t exist because of the natural immunity created by having COVID. The university would have not none of it, and didn’t care about the medical facts. A rule is a rule, and nobody gets to violate the rule. Thus litigation started. As quick as it started, it stopped and the university conceded the point — but not quite. Our guest, the plaintiff in that lawsuit, is Professor Zywicki.

Professor Zywicki teaches law at George Mason University’s School of Law, the Antonin Scalia School of Law. He has been a guest on our show before and he was the plaintiff in this action. We have as well, Jenin Younes. Jenin was his counsel in this litigation. She is a lawyer with the New Civil Liberties Alliance, a relatively new public interest law firm. You may recall that we have had Professor Philip Hamburger on the show. Phil is the founder of the New Civil Liberties Alliance. Here we have already an early case, a beautifully written complaint, and a victory of sorts. The university caved rather than allowing the case to establish a precedent, but we will learn about all of the issues involved. We will learn about vaccination versus natural immunity. We will learn about vaccine passports. We will learn from my two guests who have thought more about this subject than perhaps anybody else that I have ever had on the show. With that introduction, I’m happy to welcome Jenin and Todd to the show. Thank you so much for being with us.

Todd Zywicki 04:30

Thanks, Bob. It’s great to be back with you.

Fighting Employer Vaccine Mandates

Bob Zadek 04:33

Set the stage, Todd. I did a bit but let our friends hear it from your words. You went through a lot of trouble. The lawsuit was beautifully written. Clearly, a lot of care went into the lawsuit. Tell us why you went to so much trouble and actually did the somewhat unusual act of suing your present employer. Many people sue former employers because they didn’t want to be fired, but you sued the employer where you had to show up and work every day. That was gutsy, perhaps. Tell us about why you felt it necessary to start the lawsuit? What was the core issue you were trying to create a precedent for?

Todd Zywicki 05:25

Thanks, Bob. I want to make it clear that suing my employer was a last resort, not a first resort. I was one of the early winners of the COVID lottery. I got COVID first in March 2020. In July 2020, I got my first positive antibodies test. I’m in my 50s, but I volunteered to teach in person last fall because I felt I owed it to my students to teach in person. A lot of other younger faculty around the university decided that it would be more fun to teach by Zoom from their beach houses, but I felt it was important to show up and teach my students. I knew at that point that natural immunity was powerful. I put my money where my mouth is. I went out and I got an antibody test that showed I had antibodies.

“I was one of the early winners of the COVID lottery. I got COVID first in March 2020.”

I taught my students in person all last year, and had several antibodies tests during the course of the year that showed I continued robust protection against infection. Then, it came around that this summer the university started to make noises that they were going to create a vaccine mandate. I contacted an immunologist for a more formal workup. He sent me a prescription to get an antibody test and to show them my COVID antibodies. Again, antibodies are obviously not the only component of immunity, but for the scientific illiterates who are currently running the country, they can’t understand antibodies much less things like T cells and the like. I figured if I spoon feed them this information, they might be capable of understanding it.

My antibodies test came back 900 times the baseline level of antibodies. My immunologist said that my current antibody levels are comparable to somebody who was fully vaccinated right after they were vaccinated, which is an important point in a minute. I sent this information to George Mason. First I asked them if they were going to recognize natural immunity, and they wrote back typical university bureaucratic garbage. That’s when I contacted Jenin and NCLA. We sent them a letter that told them of my situation. We attached the two medical affidavits, one from my immunologist and one from the leading great scholars Professors Martin Kulldorf from Harvard and Jay Bhattacharya from Stanford that showed it was unnecessary.

Two things. First, it was unnecessary for me to be vaccinated. Second, there was an elevated risk of vaccinating me. We asked them for a response instead of them responding to our letter, they simply issued their policy and thus initiated a process where we tried to work with them voluntarily. At that point we had no alternative but to sue.

So why did I sue? At that point, I felt like I owed it to myself. I felt like I owed it to my principles to not just cave to this dangerous, wicked, and malicious policy that they’re trying to enforce. It’s even more wickedly malicious when it applies to students, but I felt I had no alternative. At that point, we filed suit. Eventually I ended up being given a medical exemption and various other things happened. That is how we ended up suing.

“At that point, I felt like I owed it to myself. I felt like I owed it to my principles to not just cave to this dangerous, wicked, and malicious policy that they’re trying to enforce.”

Exploring Vaccine Mandates: Compulsion or Coercion?

Bob Zadek 09:04

Now you use the phrase “vaccine mandate” in describing the policy in GMU. Mandate avidly presupposes compulsion. They weren’t mandating per se that you were vaccinated. It was a little harder to attack because they couldn’t compel you to get vaccinated because they don’t have that power over you, even though they are an instrument of the state. They are an administrative agency. What exactly were they mandating? What was the compulsion?

Todd Zywicki 09:45

The compulsion was unclear because when they initially announced this policy, they said that anybody who did not comply or get an exemption would be subject to disciplinary process including possible loss of employment. I was in the same position that literally tens of millions of people are in right now in America, where their boss is basically giving an ultimatum: You can either get vaccinated, or you can risk losing your job. At that point I didn’t think that was allowed for a public agency. In the end, as I said, they managed to give me a personal medical exemption on very narrow grounds, and they changed the rules for vaccinated people and other sorts of things. The compulsion is that they were forcing me to choose between getting an unnecessary and dangerous medical procedure and my job.

Bob Zadek 10:58

Jenin, from the New Civil Liberties Alliance. What was the course of action? What was the heart of the complaint that you asserted? What was the basis on which you felt Todd had a strong course of action?

Jenin Younes 11:27

We’ve raised several constitutional claims. GMU is a state university and they are subject to constitutional requirements. There is a line of case law saying that under the 9th and 14th amendments to the Constitution, you have a right to bodily integrity and to decline medical treatment. We argued that the GMU mandate violated that. As for why Professor Zywicki had a compelling case, I thought the natural immunity angle was very interesting. I’m personally opposed to all sorts of vaccine mandates. However, the courts haven’t been great on the subject. When the government violates a fundamental constitutional right, it has to be balanced against the state interest.

I think when you have naturally immune people, you just can’t show any governmental interest because the person doesn’t present a risk of harm to themselves or society. They don’t spread the virus for the most part. A natural immunity angle is a really good way of getting at this issue. Now, the other side has made natural immunity an issue and there are all sorts of good people who I used to consider good scientists claiming that natural immunity doesn’t exist, but they’ve been twisting literature, they’ve been twisting what the studies show. We have the best experts, Jay Bhattacharya, Martin Kulldorf, and others who have amassed enormous amounts of scientific literature that establish the robustness and the durability of natural immunity.

“When the government violates a fundamental constitutional right, it has to be balanced against the state interest.”

Bob Zadek 13:10

Now, you express a personal view, that you are personally opposed to vaccine mandates. The phrase is, as I said a second ago, misunderstood. Maybe it has a broader definition than some people may recognize. What exactly is the vaccine mandate?

Jenin Younes 13:42

I suppose I would call a vaccine mandate any employer or university requiring students or employees to get a vaccine, and I would differentiate that from the vaccine passport which is the city or municipality requiring people to show proof of vaccination in order to enter businesses.

Bob Zadek 14:04

No shoes, no service. We all saw those signs at beachfront restaurants. They have rules as to who they will serve. They believe there will be an improvement in ambience and the resulting increase in business. What is wrong with a business making a calculation that you have to wear a tie and jacket to get into this establishment, since it is tied to purely economic concerns? If a business determines that its customers would somehow feel more comfortable to see that sign, even if it’s unsupported by science, they said we don’t have any position on vaccine mandates. They just want to fill the tables. There’s no constitutional issue for that. What’s your opposition to it?

Jenin Younes 15:29

What’s happening in places like New York and I believe San Francisco now, is the government is saying that businesses have to do that. That’s not business action. De Blasio said that businesses will now be penalized if they don’t require people to show proof of vaccination. In my opinion, that is not private action at all. Now, you can get into stickier territory when you’re talking about Biden saying that all employees should be requiring proof of vaccination or requiring their employees to be vaccinated. He hasn’t said there won’t be any penalties for not doing so. You have the government playing this role where it is telling businesses, “This is what you should be doing.” You’re getting into stickier territory. I think there’s no doubt about New York’s vaccine program. That is government action. This is not private businesses deciding to do it. In fact, most businesses don’t want to.

Todd Zywicki 16:20

I’ll just add that this doesn’t go to the legality of it. A lot of libertarians compare this to no shoes, no shirt, no service. What if a business asks, “Have you had homosexual sex in the last year — have you expose yourself to risk of AIDS?”

It is disclosing people’s private medical information, and I understand the principle argument, but I think there is also a very serious slippery slope here in terms of rules that allow private parties to demand that you disclose private medical information as a condition for entering onto their premises.

Maybe we want to say that’s just like having to wear shoes in a restaurant or having to wear a tie. It is not obvious to me that it is like this. In my case here, the case that I worked on with Jenin, we don’t take on that particular question. What we take on here is that we accept for the sake of argument that George Mason University has some right to create some policies that are reasonable in terms of requiring people to show some degree of protection against infection and transmission. The point here is just because you’re vaccinated it doesn’t mean you’re immune.

We’ve learned that in spades over the last few months as breakthrough infections have exploded in this country and around the world. Just because you are vaccinated doesn’t mean you’re immune. That’s the lesson of natural immunity here. George Mason wants to develop a policy that treats vaccinated people and people with natural immunity the same, then that is not constitutionally problematic. There may be other constitutional questions, but they cannot do it in a way that basically disadvantages me, risking my whole career. They imposed burdens on me that they weren’t imposing on vaccinated people with a goal of trying to force me to buckle and accept this. This is compelled medical treatment. You can’t do that if you’re a public institution. You can’t discriminate in a way that disadvantages somebody and penalizes them like they were trying to do to me. If they want to talk about immunity, then let’s talk about immunity. We could talk about that. Talking about vaccination completely misses the mark, and is not a reasonable or plausible way of solving the problem that they want to solve.

“Just because you are vaccinated doesn’t mean you’re immune.”

The Right to Bodily Autonomy: A Constitutional Framework

Bob Zadek 19:09

Filling in some gaps in our discussion, Todd, in your opening explanation of the litigation, you cited your right to bodily autonomy. Needless to say, that phrase does not appear in the Constitution. Let’s drill down. What is the source of your claim? I’m not trying to denigrate it, but just so the audience can understand it, what makes you think you have such a thing as bodily autonomy. What is your citation for the source of that right? Either Jenin or Todd can answer or both.

Jenin Younes 19:57

The constitution doesn’t lay out all of our rights. The idea is that it would almost not be possible. The Bill of Rights existed to preserve certain specific rights. Not everything that society accepts as reasonable is in the Constitution. For instance, the right to parenting your own children doesn’t appear in the Constitution, but we understand that people have those rights. The courts have said that they are implicitly recognized in various amendments like the ninth amendment and the fourteenth amendment. There have been cases that have dealt with forcibly medicating mentally ill people, for instance. It was a huge issue in Jacobson v. Massachusetts, which is the case that stands for the proposition that you can mandate vaccines. I think there are a lot of problems with Jacobson and I don’t think it is applicable to the present situation.

Todd Zywicki 21:04

This right has been recognized with respect to mentally ill patients and I believe with prisoners also. I’m hopeful that someday, we employees of George Mason, will have the same rights as federal prisoners. What people don’t seem to understand is that a constitutional right does not necessarily mean a veto power, but maybe the lawyers in the audience don’t know what the constitutional right is. It imposes an obligation on the state to justify what they want to do to you. They can’t simply do anything they want to do to you. Otherwise, you end up where Jacobson ended up, which is this notorious and revolting case that many people have heard about from Justice Oliver Wendell Holmes, and we now recognize that this was a low mark for American jurisprudence.

In the famous case of Buck vs. Bell, the Supreme Court I believe in a 9 to 0 decision, upheld an Oklahoma law that required sterilization of or permitted forced sterilization of people who they considered to be mentally ill. The woman in this case was considered uppity because she wouldn’t bow to her superiors. As you recall, Justice Holmes said that this law was allowed. The law that permits force vaccination can also permit the forcible tying of the fallopian tubes. In his famous aphorism, “Three generations of imbeciles is enough.” Why do we need to wait for these people to do bad things before we just keep them from breeding? His sole citation for that was Jacobson. So that is the point, that it has never been the case that the government says anything goes. You call it bodily autonomy, or you basically call it some people’s right to privacy or whatever the case may be. The government has got to have some reason before they force you to undergo medical treatment or you’re right back at Buck v. Bell.

“I’m hopeful that someday, we employees of George Mason, will have the same rights as federal prisoners.”

Bob Zadek 23:36

Now, Jenin, if the law school in which Todd teaches was a private law school rather than a state law school, is it the same legal theory or would you have had problems? In fact, might you not have been able to bring the case?

Jenin Younes 24:02

Our office certainly would not have brought the case because we only sue the government, we don’t sue private entities. As to whether the suit could be brought by somebody else, probably not on the constitutional grounds we have talked about, because private entities aren’t subjects. They don’t have to abide by the Constitution. There may be arguments one could make under the ADA, possibly, but I think the case is much stronger against public entities.

Bob Zadek 24:35

ADA is the Americans with Disabilities Act. That is the reference that Jenin made. Now, Todd or Jenin, the gravamen of your complaint was not that they couldn’t require you or coerce you to get a vaccination and that it violated your bodily autonomy. It was more than that. It was that the focus on vaccination was an empty gesture, because the goal and the interest of the state has to have a compelling interest. The state may very well have it, I’ll say probably has, a compelling interest to prevent the spread of disease. If that was the compelling state interest on which GMU hangs its hat, if you will, then your case is a strong case because you had the immunity. I presume that if you hadn’t contracted COVID before your case is not very persuasive. Is that a fair assumption?

Todd Zywicki 26:11

Yeah. Bob, let me make this clear, which is I do not recommend anybody get COVID. Having COVID is no fun. If there had been a vaccine back at the time that would have allowed me to avoid getting COVID I would have gotten vaccinated. In fact, I find it very irritating when people lecture me who’ve never had COVID. Trust me, I’ve not met a single person who had COVID who wants to get COVID again. But the reality is Bob, I did get COVID. What we know about that now is very clear, which is that natural immunity provides at least as much protection as the best vaccines, clearly more protection than more mediocre vaccines like Johnson and Johnson.

There are now at least 15 studies that show that natural immunity provides protection in the range of 90 to 95%. Johnson and Johnson is 66%. George Mason’s policy was so bizarre that they allowed any vaccine approved by the World Health Organization, which includes these garbage Chinese vaccines like sinovac and sinopharm, which are so bad that China is actually starting to think about allowing their whole population to get revaccinated with other vaccines. There is not a single study in the entire world that has found that vaccination is superior to natural immunity on any of these measures.

Also, every single study that has looked at this, including one that appeared today, shows that those who have recovered from COVID, do not have the same risk of adverse side effects as ordinary people, but actually have elevated risks of side effects, including severe side effects, such as hospitalization, from the vaccine. The logic here is straightforward, which is that the side effects from the COVID vaccine come from hyper inflammation of your immune system. If you’ve already got an active immune system, with active immune protection antibodies, you are at an elevated risk of hyper inflammation.

We are talking about something here that literally has zero benefit, and heightened side effects for people like me. That was even before we learned what we’ve learned in the last few weeks, which is that these vaccines provide very short term protection that deteriorates very quickly. There are studies that just came out of Israel this week that show that for Pfizer, people who got shots at the beginning of the year have 13 times the rate of infection as people with natural immunity, 27 times the rate of symptomatic infection, and eight times the rate of death from vaccine breakthrough infections.

They also published a paper that shows that the immune protection from the vaccines deteriorates at 40% a month, compared to 5% a month from natural immunity. Even in the pristine versions of the vaccines, natural immunity was as good as the best ones, and clearly better than the mediocre ones like Johnson and Johnson. It is clear that natural immunity is more durable. It’s more protective against the Delta variant. There is no indication that natural immunity is weak at all against the Delta variant. We could talk about why that is. The policy on compulsory vaccination is even weaker now than it was when we filed our original case a month ago.

“I’ve not met a single person who had COVID who wants to get COVID again.”

Bob Zadek 30:14

I’m just going to comment on what you said about the policy on compulsory vaccination. Despite Jacobson, there really isn’t anybody who believes the government has the power to to pass legislation that requires you to be involuntarily strapped to a gurney and injected with a vaccination. It’s not mandatory vaccination. Government is indirectly depriving you of the right to participate in the normal activities of life in America unless you get vaccinated, which is coercive, but it is not quite the same as “mandatory” vaccination, which is a creepy phrase to use, but very descriptive.

Todd Zywicki 31:17

We use that term because that is how we have come to summarize what we do for K-12 students. In order to go to elementary school, you have to either be vaccinated or have an exemption. Here’s something that is important. It goes back to an observation made earlier. In every state that I’m aware of, with respect to an exemption from vaccination, if you can prove that you have natural immunity to a disease, measles, smallpox, mumps, etc. that natural immunity is treated as equivalent to vaccination. You’re right, it is not compulsory. If you want to send your kid to public schools, you have to either be vaccinated, or you have to show that they have natural immunity because they have contracted and recovered from it. Unless of course you can get some exemption such as a religious exemption, which is obviously very narrow. We typically refer to requiring kids to get vaccinated before they go to school as compulsory vaccination. I was using that as a loose term. That is basically what they’re trying to do here. They recognize natural immunity for many other diseases that are much more deadly and infectious than this one.

Bob Zadek 32:47

That’s the ticket in. You have to be immune. What is really quite interesting is that the whole policy at GMU is profoundly irrational because vaccination, if we assume that anybody who wants to be vaccinated will become immune. Even if you are not vaccinated, then you are not a risk to them, unless the vaccination is fake. If we believe the vaccination gives you immunity, then they have to immunize themselves from any adverse effects because you are not vaccinated. Compulsory vaccination is not done to protect others. It is done to protect you from yourself. That seems to me profoundly irrational, and contrary to the stated goal.

Jenin Younes 34:14

It is different from diseases like measles, where, for instance, it does seem that the vaccines are very good at stopping transmission. Very young babies, for instance, can’t get the measles vaccine. I’m not going to weigh in on whether I think those vaccines should be mandatory or compulsory, but there is a difference. It doesn’t seem as though these vaccines are very good at stopping transmission.

I think there is this false idea circulating that if everyone got the vaccine, the Coronavirus would just go away. We know that is not true at all. In fact, to the contrary, the mass vaccine campaigns might be causing more variants. There’s some scientific evidence to that effect. It could actually be making things worse.

“I think there is this false idea circulating that if everyone got the vaccine, the Coronavirus would just go away. We know that is not true at all. In fact, to the contrary, the mass vaccine campaigns might be causing more variants.”

The Effect of Governmental Fear-mongering

Bob Zadek 35:01

There is a dynamic that has to be mentioned. Broadly speaking, the messaging from the government is to instill fear in the population in so many ways in order to cause the population as a whole to get behind the government programs. It was pronounced, and I’ve discussed it many times on my show with the war on terror, that it all starts with making us fearful. A lot of what is going on in the private sector is done because the government instills what often are irrational fears. It does it bottom up. It causes employees and customers to demand certain things from private businesses, who comply. If any of you have thoughts on the role of government in perhaps artificially creating fear in order to accomplish what was in their mind, an appropriate goal, and how that distorted the public conversation on this issue, I’d appreciate it.

Jenin Younes 36:50

I actually have a very strong opinion on that. It goes back to your prior point. I think when we’re looking at this private business action, the reason people are so afraid is the reason that people drastically overestimate their risk of dying of Coronavirus. The reason people think that everybody should get the vaccine is in large part because of the government’s public health authorities like Fauci and the CDC distorting the science and distorting the risk. That’s prompting these businesses to make these decisions even in areas where the cities aren’t saying they have to. I think to look at this as purely private action is actually wrong.

Todd Zywicki 37:30

I think that’s right, Bob. A lot of what they are doing now is simply keeping people off balance. A good example is you can open the paper every day now and read two things, which is that vaccines are obviously much less effective against the Delta variant and breakthrough infections are rising. We know that the vaccine makers themselves did not represent that their products would provide long lasting protection against infection and transmission, if they advertise that, that would be false advertising based on what they were able to prove. That’s been something that’s been piled on top of it. We know that it is a relatively effective therapy, that it treats you and saves you from some worse disease. If it was therapeutic, that’s like taking your vitamins and eating broccoli, which the government can’t mandate, they’ve got to show some connection to infection and transmission here. That connection was always pretty weak and it’s getting weaker every day.

At the same time, infections for vaccinated people carry the same viral load or close to the same viral load as an unvaccinated person. So what you have are people who have relatively light symptoms walking around who are vaccinated, unaware of it and spreading disease. It is really quite a weird thing. At the same time, they are saying everybody has to get vaccinated.

We know the Delta variant is continuing to mutate further and is continuing to mutate towards greater escape from the vaccines, and we are still giving people shots and giving people booster shots with a variant that is long extinct. We are multiple generations away from that original variant, and now we are still giving people booster shots with that. As Jenin mentioned, the evidence is pretty clear now that the variant factories out there are actually the vaccinated people who are getting infected with and transmitting the new variants, and not the unvaccinated people. There’s just a study this week from the University of San Francisco Medical Center that showed this point. A lot of what’s going on here is very bizarre and incoherent. The government is creating phony evidence, like a CDC study that was designed basically as a response to my original Wall Street Journal column. There is a lot going on and it is very hard to explain in any innocent way, in my view.

The Future of the Case

Bob Zadek 40:19

Jenin, you did a beautiful job drafting that 105 page exhibit complaint. You have had a public life of about two weeks before GMU settled to make Todd’s specific issue go away without resolving the issue in the complaint. What is your plan to get more mileage out of that complaint so that you can establish a precedent? Tell us what the plan is because that complaint is too good to become unimportant in under two weeks.

Jenin Younes 41:25

Oh, thank you so much. First of all, I want to say that all of these efforts are a team effort. I was the lead attorney, but I did have other attorneys working on it who also deserve credit for how good the complaint was. Luckily, or unluckily, there are plenty of vaccine mandates around the country that are similar or worse, actually. We at NCLA just filed suit on Friday against Michigan State University. Actually their vaccine mandate was harsher than GMU’s. Their religious exemptions are delineated and they’re much more direct. There are only a couple of circumstances in which they’re allowed. They expressly say that they don’t give exemptions for natural immunity. We didn’t even have to try to request that. We have a plaintiff Jana Norris and we’re filing it as a class action lawsuit. We’re hoping that others at MSU will join the class, who are defined as employees and who have demonstrated natural immunity through antibody tests, and whose rights to bodily autonomy integrity are being violated by this mandate. If other people of MSU want to join, we are looking for more plaintiffs to join the club.

Bob Zadek 42:45

When I read the complaint, I said to myself, this cries out for class action status at least. I’m not a litigator or a class action lawyer. Had you considered using Todd as a representative of a class? Without getting too much into the legal weeds, what would be the reasons to do it or not to do it? Had it been a class action, they wouldn’t have had as easy a task in settling as they did.

Jenin Younes 43:20

That’s a good question. At the time, Professor Zywicki had approached us and we wrote a demand letter on his behalf before we started with the litigation, and we tailored the case to his particular circumstances. I think at that point, we just decided to go ahead with it as it pertains to him. Then we decided going forward, it made sense to do it as a class action.

Bob Zadek 43:46

You’re encouraged in a lawsuit against Michigan State University, that you hopefully will get class action status, which would prevent the quick settlement just to make it go away without the burden of filing an answer.

Jenin Younes 44:02

Precisely. I think until we worked on Professor Zywicki’s case, we were unaware of how many people were being affected by this. At that time, the mandates were just starting to come so we weren’t sure that it’s ever since we filed that lawsuit. We’ve just been flooded with requests and the mandates keep coming to more and more places. A lot of them are getting stricter and stricter actually.

Vaccine Passports

Bob Zadek 44:26

You’ve made several references to de Blasio in New York, which is the poster child for vaccine passports. Now, Jenine, I know you have a preference to sue governments, that’s the mission of the New Civil Liberties Alliance — if you run out of governments to sue, how applicable is your cause of action against the use of vaccine passports more broadly, to cover things like concerts, restaurants, sporting events, and the like?

Jenin Younes 45:36

I would absolutely sue de Blasio — not the businesses, because he has told the businesses that they have to do this. I wouldn’t go after private businesses. I would not go after private businesses, I think that is their right. If people want to cater to a crowd who thinks that vaccine passports are a good idea, I guess they have the right to do that. That’s not at all what’s going on here. This business is being forced to do something by the government.

Bob Zadek 46:16

If you’re running out of things to do, Jenin, my theory is maybe you can get people with natural immunity to become a protected class and then you get the benefit of the Civil Rights Act. Employers can’t discriminate against unvaccinated people with natural immunity. It’s just a tweak in the Civil Rights Act, and you’ve done it.

Jenin Younes 46:39

That’s an interesting idea. I could see that. I guess I can’t even get myself to the place of imagining where I don’t have governments. There are so many of them right now. I think there are theories.

Bob Zadek 46:54

Just a thought, Jenin. I’m just trying to make sure you have enough work to do. When interacting with students and faculty members at GMU in general, has there been a reaction that’s more pervasive than others? Does there seem to be a point of view that’s more prevalent than the others towards what you have done? Or do they just not care all that much?

Todd Zywicki 47:46

They definitely care, Bob, and I am grateful for my colleagues. As you are probably aware, Antonin Scalia Law school is a unique place. We have a lot of my colleagues, and one of the reasons is that these are clear thinking people, which is why I’ve gotten nothing but favorable feedback. Pretty much from my colleagues, they understand the science here, there’s really no doubt about the science. Bob, there literally are zero studies that contradicts what we are saying. Tons of evidence conflicts with our position. They also understand the Constitution. If anything, students have been even more enthusiastic.

Bob, I want to stress this. This is pure wickedness. What they are doing to students is wicked. They may have fewer constitutional rights, but a student who has natural immunity, in their 20s, or a young Marine who has close to zero risk from COVID to begin with, and you add in natural immunity on top of that, and we’re talking about as close to bulletproof as you can get.

For people like me in my 50s who have had COVID and recovered, I have an elevated risk of side effects from the vaccine, but that risk is even higher for young people. The studies make it clear that as you go down the ladder towards younger people, their risk of adverse side effects goes up. That’s why we see these Myocarditis cases in promising young men. Young people have more active immune systems, which is why they are of less danger from COVID. They also have more active immune systems, which is why there is more risk of hyper inflammation of their immune system. It’s just wicked. It’s vicious to make our students who have recovered from COVID have to get vaccinated. It is a moral abomination.

Bob Zadek 49:58

Jenin, what has been the feedback you have experienced from the legal community?

Jenin Younes 50:15

I’ve gotten a lot of support and people really seem to like this angle. I think even people who might be okay with some forms of vaccine mandates or passports understand the natural immunity issue has support. It’s been really great.

Bob Zadek 50:33

There you have it, my friends. Should vaccine mandates be permitted? Encouraged? Should employers yield to the pressure imposed upon them by their customers or their employees to protect them from a risk that doesn’t even exist? That’s a question which our government and our society will have to decide over the next year or so. Thank you so much to Jenin and to Todd for bringing this issue to the courts, for their very successful result, and for their continued litigation against state institutions.

Let us all hope that Jenin, in selecting the perfect defendant, doesn’t run out of governments. We’d hate to see her resume circulating out there in the ether somewhere. Thank you so much, Todd and Jenin, for the wonderful work you did in the courtroom, and for the result you have achieved. This is Bob Zadek thanking my friends, Todd and Janine for sharing an hour of their time and asking you to continue to listen to the podcast. Please indicate any suggestions you have on the podcast, how to make it better, what I’m doing wrong. if you’re having an opinion on the quality, it is always welcome. Thank you so much, my friends for listening. I’ll be back again next Sunday. Please enjoy the rest of the weekend.

LINKS:

• Todd Zywicki (@ToddZywicki) / Twitter
• Zywicki, Todd | Antonin Scalia Law School
• Jenin Younes (Leftylockdownskeptic) (@Leftylockdowns1) / Twitter
• Jenin Younes — New Civil Liberties Alliance

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