Di Leo: Analogy Time with Johnny Dee:  Tollbooths, Syringes, and the U.S. Constitution

By John F. Di Leo - 

Let's say I claim the right to collect tolls on the Brooklyn Bridge. (I need cash, you know, and there’s money there).

So, I fly to New York; I erect tollgates, and I start collecting tolls from cars and trucks crossing the Brooklyn Bridge.

Now, as you might imagine, I have no right to do this.  I just did it, and dared people to stop me.  Well, people did.  They didn’t waste much time, either.  Let’s assume that people sued me, and it went all the way to the Supreme Court, where SCOTUS said "This is ridiculous!  John, you don't have the authority to collect tolls on the Brooklyn Bridge. Now cut it out. Unless you're given that authority, you can't do it. Period. Take down those stupid tollbooths and go home."

But you know me, folks.  I don’t give up that easily.

So, I go to Springfield.

Speech Time at the Capitol

As soon as I arrive in beautiful Springfield, Illinois, I talk my friends in the state legislature into giving me a chance to make my pitch. I speak to both the Illinois General Assembly and the Illinois State Senate, and I get a meeting with Illinois’ Governor too – you can’t miss him, you know. 

I give the same speech to all of them, and it’s reasonably succinct:  “I want to collect tolls on the Brooklyn Bridge, and I'll gladly split it with all of you under the table”… because, after all, that's how we do things in Illinois.

They all say "Cool!", and it passes the state house and state senate with comfortable margins, and then Gov. J.B. "Second Helping" Pritzker happily signs it between sandwiches, giving me the authorization I asked for.

I then fly back to New York and I start collecting tolls on the Brooklyn Bridge again.

Is it over? 

Oh no. Not by a long shot.

Again I get sued - go figure, huh? - and it goes all the way up to the Supreme Court again. Why this time? Because, even though I got authorization to do it, the people who gave me that authorization HAD NO POWER to grant me that authorization in the first place.

The Brooklyn Bridge is in New York. The government of Illinois has no authority in New York. None.  They are separate states.  The government of Illinois cannot grant me authority that it doesn't have in the first place.

Covid-19 and the Vaccine Mandate

Up to now, we’ve been dealing in hypotheticals.  I am not going to try to collect tolls on the Brooklyn Bridge. My story thus far has just been an analogy to set the table.

So… now, let’s talk about the real world, and what has been happening since last fall on the subject of Statist-in-Chief Joe Biden and in particular, his OSHA mandate.

Last fall, Joe Biden and his staff decided they wanted to require all private citizens to get the experimental Covid-19 vaccines and boosters.  Well, they couldn’t. They don’t have that power.

So, they looked around at the federal government and its many bureaus and agencies, and they had a few ideas. 

• They figured they could have the Armed Services mandate that all members of the military have to be vaxxed. 
• They also figured they could have HHS mandate that any hospital or clinic or doctor’s office that takes Medicare and Medicaid patients have to be vaxxed.  (Take the king’s coin, dance to the king’s tune, as they say.)
• And they also figured they could order OSHA to mandate that all private sector companies with 100 or more employees have to make sure their employees are vaxxed.

Now, the easiest case, in theory, might be the Armed Services.  You basically sign away most of your rights when you join the military; that’s well known. 

When we consider some of the drug tests – and other tests – that were performed on military members during the past century, which turned into huge scandals, one might think the Armed Services would push back at an experimental vaccine, however presumably valuable, that hasn’t yet gone through the years of tests that most vaccines have, but the upper leadership of our Armed Services, unfortunately, are mostly a bunch of woke politicians now, not really military men – the best officers having been purged during the Obama administration.  So the military mostly went along with it. The question of whether the Biden-Harris regime had the right to issue this mandate has been raised, but has not gotten the attention it deserves.

The next big case is the issue of the HHS order on healthcare workers.   Remember, these are people in the business. These are people who know the value of vaccines, people who themselves administer lots of vaccines, all the time.  Our nation’s doctors and nurses sing the praises of the polio vaccine, the diphtheria and tetanus vaccine, the measles, mumps and rubella vaccines every day, and they support these vaccines being mandated by our local school districts.  Many strongly recommend other vaccines too, such as the annually adjusted “seasonal flu shot”.  And yet…

Our nation’s healthcare workers include a surprising number of people who are pushing back against this particular new one.  As believers in science, as believers in proper protocols, they have looked at the evidence, and as a result, many doctors and nurses oppose the Covid-19 vaccines, at least at this point, while so much of the evidence about both their efficacy and their side effects is so very mixed, and so very censored as well.

But there’s another issue here.  Unlike our soldiers and sailors, our nation’s doctors and nurses did not sign away their individual rights when they accepted a job at a hospital or clinic, or when they hung up their shingles in private practice.  The federal government has no special authority over them.  The regime claimed the power to give this order on the grounds that they take Medicare or Medicaid patients, so they get insurance-like reimbursement from the federal government, and this provides the necessary hook.  But, frankly, it doesn’t. 

Sure, a customer has the right to ask for special services or deliverables from its vendors, as long as they’re legal… and the federal government is the customer, here, and the hospitals and clinics are their vendors.  But the government doesn’t have the right to just issue a demand to its vendors; it needs to propose an amendment to its contracts, and wait to see if the vendors accept the amendment.   Our nation’s doctors and nurses were given no such opportunity to negotiate; the government issued a mandate to their employers.  Did the government have that right?

Our final issue of the three is the biggest one of all.  OSHA issues all sorts of mandates on workplaces, which are naturally limited to dangers that only exist in the workplace (such as the operation of plant machinery in a factory).  OSHA is, after all, the Occupational Health and Safety Administration.  It’s about occupational health, not general public health.

A virus sweeping the nation – or in this case, the world – is clearly not in OSHA’s portfolio for that primary reason.  The odds of contracting this virus at work are not significantly different from contracting it outside work.  For this reason alone, it is completely outside OSHA’s authority.

The federal court system has a number of cases addressing these and other such mandates.  Let’s not address those cases here, because their status changes from day to day, and who knows whether this column will be read on its date of publication, or a week later, or a year later?  (for the record, at this writing, the Supreme Court, on January 13, gave tentative approval of the healthcare mandate, and tentative disapproval of the broader OSHA mandate, but there are more shoes yet to drop).

Next Steps for the Mandate Advocates

The next step for the Biden-Harris regime will be to seek authorization from Congress.  They imagine that if Congress votes to drastically expand OSHA’s role, authorizing OSHA to mandate an unproven, experimental vaccine regimen on the private sector, then the Supreme Court will allow that mandate to stand. 

Perhaps, while they’re at it, just to tie up all the loose ends, they might attempt a bill that similarly authorizes the Armed Forces and HHS to do it too.

And maybe, just maybe, to be really comprehensive, the bill will just skip all that and give the White House the direct power to issue such a mandate on its own, without using an agency or bureau.  They might give the White House the power to require all Americans, of any age, sex or health status, to be injected with experimental vaccines anytime a White House thinks it’s a good idea.

We don’t know, at this writing, what Congress will attempt, or what will pass these evenly divided houses.  We only know that some Congressional action is the next step to be pursued.

And that brings us back to our analogy.  Just as the State Government of Illinois could not authorize me to collect tolls in the state of New York, so too is there a problem with Congress authorizing the White House to issue a vaccine mandate on the American people.

Most Americans study the Constitution of the United States in 7^th or 8^th grade, and then never look at it again.  Sadly, this is true of many in elected office as well, not to mention the petty technocrats of the federal bureaucracy.

But there is a rule, one that goes all the way back to the Founding Era:  the Constitution exists not only to set up the federal government – stating which politicians get a 2-year term and which ones get a 6-year term, and so forth – but it also exists to state, specifically, what powers the federal government has.

The Constitution specifically enumerates long lists of powers.  Some things are the responsibility of Congress, others are the responsibility of the judiciary, others are the responsibility of the executive branch.  In some cases, Congress can delegate these responsibilities. For example, Congress may pass a tax bill, creating a tax rate, and then Congress can authorize the executive branch to collect it.

What the legislative branch cannot do – and this is absolute – is to delegate a responsibility to the executive branch that it did not have in the first place.

If Congress cannot issue a national vaccine mandate on private citizens, then it cannot authorize some agency in the executive branch – whether HHS or OSHA or anybody else – to issue such a mandate.  If they don’t have a power, they cannot pass it on to someone else.

The Constitution of the United States

So, Gentle Reader, if it’s handy, please pick up your personal copy of the Constitution, and page through it.  Do you see such authority?  Does our federal government have the power to tell private citizens – either directly or through their employers – that they have to get an experimental vaccine (or even a proven, fully authorized vaccine, for that matter)?

If you read through the Constitution, you will find no authorization whatsoever where our federal government has the power to regulate the health of private citizens.  What you will find, incidentally, is authorization for Congress to establish a uniform rule of naturalization across the country.  Congress clearly, then, does have the power to mandate that foreigners entering our nation be vaccinated, as part of the naturalization process, but foreigners happen to be the one huge group that the Biden-Harris regime isn’t remotely interested in, where Covid-19 is concerned. Their completely illegal open-borders and sanctuary-city policies clearly outweigh matters of public health, in their minds, so they have not mandated vaccines, or in fact, any of the traditional health checks and quarantine practices on our dreadfully-overrun southern border.

The only place we can turn in the Constitution, for the rest of us, is the 10^th Amendment.  That’s the one that clearly explains that powers not awarded to the federal government remain in the hands of the people and the individual states.

Under the Constitution, the federal government does not have the power to order factories, retailers, wholesalers, service industries, students, retirees or the unemployed, to accept a vaccine.   This is as clear a 10^th Amendment case as we’ve ever seen. 

Let’s return to our analogy, shall we?   I tried to collect tolls in New York without authorization, then I sought the power from Illinois, which had no such authorization to give.  I should have gone to the state of New York in the first place.

In the same way, the Biden-Harris regime has attempted to imagine a power that it does not have.  Today, it is likely asking Congress to grant it that power… but they’re asking the wrong people.  Congress doesn’t have that power to pass to them.

To go about this legally, the Biden-Harris regime should make its case to the public, recognizing that the federal government has no power here other than the bully pulpit, and encourage the American people to voluntarily get this vaccine.  Yes, of their own free will, because the decision to get a vaccine is a power retained by each individual American citizen.

Many have already happily taken it; they didn’t have to be convinced.

Many more are waiting to see the evidence – the fair, honest evidence on both sides.  What is the efficacy of these products, really?   What are the side effects, really?  What is the risk from the virus for most real people without comorbidities? And similarly, what is the risk from the vaccines and boosters?

If the benefits are as great as the government claims, and if the side effects are as minor and rare as the government claims, then no mandate will be needed;  most remaining holdouts will jump at the chance.

But the government resists releasing such data, and the government has its lackeys in both the regular media and social media censoring any data that might help individual Americans make up their minds on their own. 

No wonder the hesitant, despite the vaccines being “free” (taxpayer-paid), remain stubbornly hesitant.

Why won’t the government share the data that even the WHO and other international bodies are considering?  Why do they just want Congress to give them a permission slip to keep this decision out of individual Americans’ hands? What does our federal government have to hide?

If the Biden-Harris regime has to go to a body as corrupt as I did when I wanted to collect tolls on the Brooklyn Bridge, maybe the answer to that one is, “Plenty.”

Copyright 2022 John F. Di Leo

John F. Di Leo is a Chicagoland-based trade compliance trainer and transportation manager, writer and actor. A one-time county chairman of the Milwaukee County Republican Party, he has been writing regularly for Illinois Review since 2009.

 A collection of John’s Illinois Review articles about vote fraud, The Tales of Little Pavel, and his 2021 political satires about current events, Evening Soup with Basement Joe, Volumes One and Two, are available, in either paperback or eBook, only on Amazon.

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