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Saturday, September 11, 2021

Anticipating Mandatory Vaccination--10 Years Ago

Ten years ago, I was blogging at Concurring Opinions (R.I.P.) and Balkinization, where I still post. Here is a post that I wrote in October 2011. I wouldn't write this in exactly the same way now, but I think it's still of interest.

Friday, October 28, 2011

Broccoli vs. The Plague

Gerard N. Magliocca

The most powerful argument against upholding the constitutionality of the individual mandate may be that this will open the door to compulsory broccoli purchases. Many people are unfamiliar with the relevant Commerce Clause cases, but everyone seems to know about the broccoli hypothetical.

The hypothetical on the other side of this litigation, though, is just as powerful. Suppose that a dangerous epidemic breaks out that reduces interstate commerce by curtailing travel and other interactions for fear of contagion. A private company develops an effective vaccine that many people refuse to buy. Is Congress prohibited from ordering everyone in the country to buy the vaccine under the proposed activity/inactivity distinction? I've asked this question to folks who are skeptical about the individual mandate and usually get one of four answers:

1. "This is a non-issue because every state would order mandatory vaccination." Maybe, but that sounds a lot like "This is a non-issue because Congress will never order you to buy broccoli." Either both responses are valid or neither is. One can't be adequate and the other not.

2. "Congress can do this under some other Article I power." Really? Like what?

3. "Congress cannot order vaccination purchases. We just have to rely on jawboning and financial incentives." This lack of authority in the face of a terrible disease scares me far more than having to buy broccoli when I don't want to.

4. "In that dire emergency, congressional regulation of inactivity would be lawful." At this point, the activity/inactivity distinction vanishes and is replaced by a balancing test that weighs the state's interest against its intrusion into personal liberty.

Thus, I think that the only way that the activity/inactivity line makes sense is if you answer the disease hypothetical with #3. Otherwise, you need another rationale to strike down the individual mandate.

Posted by Gerard Magliocca on September 11, 2021 at 08:19 AM | Permalink


Least we forget that a human person can only conceive a human person, and thus every son or daughter of a human person can only be, in essence, a human person, it is not necessary, nor is it proper to destroy the life of a beloved son or daughter residing in their mother’s womb for any purpose, including for medical research:





Posted by: Nancy | Sep 26, 2021 6:13:56 PM

In summary, we must recognize the key, necessary and proper role that iron regulation has in both health and disease:

And how this relates to the spike protein of Cov2:

That Furin which regulates hepcidin is both a ligend and a receptor:













And because Furin regulates Hepcidin, which regulates Iron (sort of like a chaperon, some have said)
it is important to note


“A separate problem “is that furin has essential roles in our cell,” says Racaniello, so if you block the enzyme, “you will have toxicity associated with that.” Plenty of drugs have been developed with the aim of inhibiting furin, but none have made it through to patients. “Furin inhibitors are quite toxic,” confirms Izaguirre.
This does not rule them out. Inhibitors could perhaps be delivered for a short period of time to knock down viral load at a critical juncture. “It might be possible that furin inhibitors are only applied for a very short amount of time, to limited unwanted side effects,” agrees Pöhlmann.”



It s important to note:
that for some individuals, “Hepcidin-Mediated Hypoferremia Disrupts Immune Responses to Vaccination and Infection”. Thus, in regards to Proportionality and disproportionate mandates, including mandating vaccines, versus mandating adequate medical treatment, one needs to know one’s hepcidin level in order to make an informed consent in regards to the safety and efficacy of the vaccine due to the addition of a furin receptor on the spike protein, which for some individuals has the potential to increase their hepcidin to a dangerous level.

Because https://www.rethinkanemiaofckd.com/more-than-epo-and-iron.html

And https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3170780/


With God’s help, the ability to balance furin and thus hepcidin and thus iron will eventually lead to all kinds of cures for disease:






And the help of some truly dedicated Doctors


Our Blessed Mother’s Immaculate Heart Will Triumph over all💕🙏

Posted by: Nancy | Sep 26, 2021 3:25:13 PM

Save The Children


I came across this link, which is extremely important, in the comments section of a blog post yesterday. Please listen to the whole thing in order to fully use your gift of critical thinking.

There is also, this:


Posted by: N.D. | Sep 20, 2021 8:33:37 AM



Posted by: N.D. | Sep 19, 2021 11:09:22 PM

My apology, the second link to https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6682551/

Should have linked to:


And then consider this:


Posted by: Nancy | Sep 19, 2021 10:58:09 PM

Regarding the addition of furin receptor on spike protein of Cov 2, and the efficacy of targeting spike protein for a short period of time v.vaccination,



Posted by: Nancy | Sep 19, 2021 10:05:38 AM

And then there is this:



Posted by: Nancy | Sep 16, 2021 4:20:28 PM

This is also important information if it is true that the only difference between Cov 1 and Cov 2 is the addition of a furin cleavage site on the spike protein. MERS also has a furin cleavage site on its spike protein so...


Posted by: Nancy | Sep 16, 2021 4:00:30 PM

Regarding saving lives, it is important to note:




Posted by: Nancy | Sep 16, 2021 1:59:06 PM

I apologize for leaving an additional and thus not final comment here-

I ask only that you use your logic and critical thinking skills to help serve for The Common Good, and perhaps some of you would consider this, https://mirrorofjustice.blogs.com/

What I find helpful about this particular Case Prompt, is that it highlights the fact that, when it comes to Vaccine Mandates, we need to know the merit of a particular Vaccine and the merit of Natural Immunity, which would also be acquired by those who received treatment and recovered from a particular disease, in order to make an informed consent as to the advantages and disadvantages of a particular Vaccine, for that particular individual,. This information is both necessary and proper to have before we proceed with the question of whether or not a Vaccine Mandate is justified and has merit.

Godspeed 🙏💕

Posted by: Nancy | Sep 13, 2021 12:51:12 PM

It looks like the Balkin Blogspot comment section is under attack, so I will leave one final comment here-

For some, depending on their hepcidin level, broccoli may actually be more beneficial for a healthy immune system after all

“Broccoli is incredibly nutritious. A 1-cup (156-gram) serving of cooked broccoli contains 1 mg of iron, which is 6% of the DV ( 42 ). What's more, a serving of broccoli also packs 112% of the DV for vitamin C, which helps your body absorb the iron better ( 8 , 43 ).”





I came across this term, which I feel adequately describes how the CDC has influenced the “The Government’s Legal Responsibilities and Litigation of Religious Liberty in the time of Covid.”

“What does it mean to be arbitrary and capricious?”

“A clear error of judgment; an action not based upon consideration of relevant factors”, which could make it appear, as if there is “no feasible and prudent alternative."

With this in mind, I have added these additional articles that I feel will be beneficial in regards to Proportionality and disproportionate mandates, including mandating vaccines, versus mandating adequate medical treatment, and the fact that it would be both feasible and prudent to know one’s hepcidin level in order to make an informed consent in regards to the safety and efficacy of the vaccine due to the addition of a furin receptor on the spike protein, which for some individuals has the potential to increase their hepcidin to a dangerous level, possibly resulting in serious disease and death.







Finally, I believe this video will be extremely helpful when it comes to individual health care and immunity:


Posted by: N.D. | Sep 12, 2021 1:36:23 PM

It is important to note, that for some individuals, “Hepcidin-Mediated Hypoferremia Disrupts Immune Responses to Vaccination and Infection”. Thus, in regards to Proportionality and disproportionate mandates, including mandating vaccines, versus mandating adequate medical treatment, one needs to know one’s hepcidin level in order to make an informed consent in regards to the safety and efficacy of the vaccine due to the addition of a furin receptor on the spike protein, which for some individuals has the potential to increase their hepcidin to a dangerous level.








Posted by: Nancy | Sep 12, 2021 5:53:36 AM

Just to understand, the difference between both kind of scrutiny mentioned or quoted down there in my comment, I quote from the supreme court recently:



" The Law Center (but not the Foundation) argues that we should apply strict scrutiny, not exacting scrutiny. Under strict scrutiny, the government must adopt “the least restrictive means of achieving a compelling state interest,” McCullen v. Coakley, 573 U. S. 464, 478 (2014), rather than a means substantially related to a sufficiently important interest. "

So, what counts for understanding it, is as quoted:

".....the least restrictive means of achieving a compelling state interest"

Not enough to have public interest. Not enough to show the nexus between mean and end in this respect. But, you need to go down further to details, and see, whether, the means, are "the least restrictive" as quoted. So:

It is not theoretical issue (or not solely so surly). But, digging down deep into details and facts and policies.

Very recommended ruling per se by the way:



Posted by: El roam | Sep 11, 2021 11:48:58 AM


I still like broccoli ... vaccines too.

I guess I'm somewhat biased.

Posted by: Joe | Sep 11, 2021 11:37:06 AM

Or rather, I quote:

" Whereas infringements on other rights or liberties, though still constitutionally scrutinized, must meet what courts call rational basis review. Glucksberg, 521 U.S. at 722, Sweeney v. Pence, 767 F.3d 654, 668 (7th Cir. 2014). The law normally applies this standard to Fourteenth Amendment challenges to infringed liberties, if not fundamental or based on a suspect classification. Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70 (2020) (Gorsuch, J., concurring); see, e.g., Glucksberg, 521 U.S. at 721. It is less stringent than strict scrutiny. Under rational basis review, “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). The students argue for strict scrutiny, and the university argues for rational basis review."

So, rational basis review v. Strict scrutiny. But, whatever, you must go down to details and facts. End v. means. Harm to individuals or certain group v. public interest.


Posted by: El roam | Sep 11, 2021 11:06:44 AM

Important issue these days.

Finally, it would always deal with specific details and facts. The constitutional principles are guiding of course. But, you need to narrowly adjust it, to specific configuration. That is to say, to balance between constitutional rights on one hand, and proportionate and measured means, all, in light of the gravity of the public health situation we face.

In the district court of Indiana (South Bend Division) that was the case:

On one hand, mandatory vaccination, masks etc.... on the other, the constitutional rights stemming from the Fourteenth Amendment (demanding preliminary injunction in that case).


I quote:

" Indiana University’s policy has real implications. Students may be deprived of attending the university without being vaccinated or qualifying for an exemption. Still they have real options—taking the vaccine, applying for a religious exemption, applying for a medical exemption, applying for a medical deferral, taking a semester off, or attending another university or online. The policy applies for the fall 2021 semester only."

And what counts, I quote:

" Recognizing the significant liberty interest the students retain to refuse unwanted medical treatment, the Fourteenth Amendment permits Indiana University to pursue a reasonable and due process of vaccination in the legitimate interest of public health for its students, faculty, and staff. Today, on this preliminary record, the university has done so for its campus communities. That leaves the students with multiple choices, not just forced vaccination."

So, we need also, to observe the scale and gravity of public health emergency, and find the right rational means for dealing with it, at the back of constitutional rights.

This is not theoretical issue. Rather, has to do with details. Connecting between end and means, and correctly so

Here to the ruling:


Here article on the ruling:



Posted by: El roam | Sep 11, 2021 10:25:57 AM

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