Yesterday, the Commission on the Supreme Court, appointed by President Biden to consider possible reforms to the Court, issued a preliminary report (a final report is due next month). When Committee for Justice president Curt Levey testified before the Commission this summer, he was one of only a handful of conservative witnesses. In both his written and spoken testimony, he challenged the progressive views of most of the witnesses and commissioners.

Here are a few observations about the preliminary report and Supreme Court reform:

The report notes that even a number of “Commissioners who are critics of many of the Court’s recent decisions and support other reforms” conclude that court-packing “is likely to undermine, rather than enhance, the Supreme Court’s legitimacy … and there are significant reasons to be skeptical that expansion would serve democratic values.”

Similarly, in an August article in The Federalist, Mr. Levey noted that “Only a minority of the commission’s mostly progressive witnesses supported court-packing. They mostly discussed more thoughtful structural reforms that don’t give either party an obvious advantage.”

The preliminary report discusses the view that “a misalingment exists today” between “the composition of the Court and … popular opinion,” noting that “Republican presidents appointed 15 of the last 19 Justices and six of the current nine Justices.” Of course, many of the 15 Republican appointees—including Justices Roberts, Souter, Kennedy, O’Connor, Stevens, Powell and Blackmun—have been moderates or leaned left on the Court.

In his testimony, Levey challenged the view that the Supreme Court, as currently constituted, is far to the right. Levey explained that the Court’s decisions since Justices Kavanaugh and Barrett were added reveal a moderately conservative Court that angers conservative as often as liberals.

The report states that “the current calls for Supreme Court reform” are substantially motivated by the allegation “that the seats previously occupied by Justices Scalia and Ginsburg were ‘stolen’ by Republicans from Democrats.” In his testimony, Levey refuted this allegation, documenting the historical norm that Supreme Court nominees will be confirmed in presidential election years typically only if the Senate is controlled by the President’s party. In any case, Levey concluded:

“[N]o matter what you think the rule should be [in presidential election years], it makes no sense to claim that two seats were stolen. … It follows that this Commission should not support any Supreme Court reform, including [court-packing], that is inspired by the claim of two stolen seats.”

The Commission’s report also finds that “many concerns about the Court are derivative of” the perception that “the Court is too willing to intrude into matters that should be left to democratic political processes. When the Court’s decisions are so important, the [judicial] confirmation process becomes more contentious and partisan.”

Similarly, Mr. Levey testified that:

“As the late Sen. John McCain (R-Ariz.) said, ‘The surest way to restore fairness to the confirmation process is to restore humility to the federal courts.’ Well, discarding the living Constitution as a judicial philosophy would help to restore humility to the federal courts. But only a change of heart by progressives or dramatic reform could accomplish that.”

Levey ultimately concluded that “While I am skeptical of structural reform to the Court itself, I would support changes to the judicial confirmation process in the Senate.” He explained the risks of structural reforms—but has also written that “caution does not require dismissing structural reform out of hand”—and went on to suggest potential improvements to the confirmation process.

WASHINGTON, D.C.— Liberty Counsel has filed a class action lawsuit against Joseph R. Biden, U.S. Secretary of the Department of Defense Lloyd Austin and U.S. Secretary of the Department of Homeland Security Alejandro Mayorkas on behalf of members from all five branches of the military — Army, Navy, Air Force, Marines, and Coast Guard — federal employees and federal civilian contractors, who have been unlawfully mandated to get the COVID shots or face dishonorable discharge from the military or termination from employment.

The military plaintiffs include two Navy SEALs, a Navy EOD Officer, a Navy Senior Chief Petty Officer, a Navy Chaplain, two Marine Lt. Colonels, two Marine Lance Corporals, an Air Force Major, an Air Force Technical Sergeant, an Army National Guardsman, an Army Colonel, and a Coast Guard Lieutenant.

The non-military plaintiffs include a Department of Defense contractor who has conducted Intelligence, Surveillance, and Reconnaissance (ISR) quantitative and qualitative assessments and studies, whose assessments are briefed to DOD senior leadership to inform decisions on future employment, allocation, and procurement; a federal civilian engineer employed by a large military defense contractor that provides LCD screens used in United States Armed Forces aircraft; a federal civilian contractor employer whose company develops and supports military weapons systems, including current and next generation land vehicles for the Army and next generation Navy vessels; a federal nuclear contractor employee who is a young woman opposed to abortion and who desires to have children of her own one day; and a Department of Energy Civilian Nuclear Tech who works at the Los Alamos National Laboratory.

In a sworn statement to Liberty Counsel, one Navy Chaplain stated, “I personally observed (and the Sailors told me in the course of counseling about) tremendous amounts of coercion, bullying, censorship, and intimidation being brought forth by the command to bear against the personnel who expressed objections of any kind to the COVID shot mandates, including religious objections…And clearly, the military has lost more lives to the increase in suicide from 2020-2021 (at least 1,012) than to all of COVID in 2 years (~52), but suicide has not been a focus.”

On August 24, Secretary of Defense Austin sent out the “Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members” in which he stated, “The Secretaries of the Military Departments should impose ambitious timelines for implementation. Military Departments will report regularly on vaccination completion using established systems for other mandatory vaccine reporting.”

The memo also states, “Mandatory vaccination against COVID-19 will only use COVID-19 vaccines that receive full licensure from the Food and Drug Administration (FDA), in accordance with FDA-approved labeling and guidance.” However, there is currently NO FDA-approved COVID-19 shots available anywhere in the United States. Every COVID shot in America remains under authorization of emergency use, which means people have the “option to accept or refuse” them.

On June 23, 2021, Dr. Matthew Oster, who serves on Biden’s CDC COVID-19 Task Force, admitted in a PowerPoint presentation that the shots are causing myocarditis in “young men aged 16-30,” and he added that “It does appear that mRNA vaccines may be a new trigger for Myocarditis.” This information about myocarditis is widely known by the CDC.

On June 29, the Defense Health Agency (DHA) published a report in the highly respected Journal of the American Medical Association Cardiology (JAMA Cardiology) entitled “Myocarditis Following Immunization with mRNA COVID-19 Vaccines in Members of the U.S. Military.” The study reports that previously healthy service members have developed myocarditis, a severe and life-threatening inflammation of the heart, within an average of just four days of receiving their first shot of either the Pfizer-BioNTech or the Moderna jabs.

Despite the known harm to members of the military, the shot mandate was imposed on all members. Merely submitting a religious exemption request is met with abuse and threats of dishonorable discharge – the ultimate betrayal of America to these brave military heroes who have sacrificed everything. The lawsuit includes a Declaration under oath by a military chaplain who fears the rate of suicide will increase because of the abusive pressure.

On September 9, Biden issued an executive order requiring all federal employees to receive one of the COVID injections as a condition of employment. That same day, he also issued a second executive order requiring that all federal contractors and subcontractors receive one of the shots as a condition of continued contract service with the U. S. government.

THE MANDATES VIOLATE FEDERAL EUA LAW

The COVID shots cannot be mandatory under the federal Emergency Use Authorization law (EUA). All of the COVID-19 shots (Pfizer, Moderna, Johnson & Johnson’s Janssen) have received only EUA authorization and not full FDA approval. The federal EUA law and the FDA, including the FDA Fact Sheets, state unequivocally that each person has the “option to accept or refuse” the shots. The Fact Sheets for all three (Pfizer, Moderna, and Johnson & Johnson’s Janssen) state it is a personal choice to take the shots: (“It is your choice to receive or not to receive the Pfizer-BioNTech COVID-19 Vaccine.”); (“It is your choice to receive or not to receive the Moderna COVID-19 Vaccine.”); and (“It is your choice to receive or not to receive the Janssen COVID-19 Vaccine.”)

In very limited cases, the President can waive the EUA law for the military. However, he has not done so and has no authority to do so under the law and facts.

The strict criteria laid out in the statutory framework demonstrates the limited scope of the exceptions to the informed consent requirement. To start, the initial emergency declaration by the Health and Human Services (HHS) Secretary must be based on one of four statutorily listed justifications – none of which apply here.

The first requires the Secretary of Defense to find a domestic emergency, or significant potential for a domestic emergency, based on heightened risk of attack with a biological, chemical, radiological or nuclear agent. 21 U.S.C.A. § 360bbb–3(b)(1)(A) (“a determination by the Secretary of Homeland Security that there is a domestic emergency, or a significant potential for a domestic emergency, involving a heightened risk of attack with a biological, chemical, radiological, or nuclear agent or agents”).

The second requires a finding that there is a military emergency involving a heightened risk to US military forces of an attack with a biological, chemical, radiological, or nuclear agent, or an agent that may cause an imminently life-threatening and specific risk to US military forces. 21 U.S.C. §360bbb-3(b)(1)(B) (“a determination by the Secretary of Defense that there is a military emergency, or a significant potential for a military emergency, involving a heightened risk to United States military forces, including personnel operating under the authority of title 10 or title 50, of attack with—(i) biological, chemical, radiological, or nuclear agent or agents; or (ii) an agent or agents that may cause, or are otherwise associated with, an imminently life-threatening and specific risk to United States military forces”).

The third requires a finding that there is a public health emergency, or significant potential for a public health emergency that affects national security or the health and security of US citizens abroad that involves a biological, chemical, radiological, or nuclear agent or a disease or condition attributable to one of those agents. 21 U.S.C. §360bbb-3(b)(1)(C) (“a determination by the Secretary that there is a public health emergency, or a significant potential for a public health emergency, that affects, or has a significant potential to affect, national security or the health and security of United States citizens living abroad, and that involves a biological, chemical, radiological, or nuclear agent or agents, or a disease or condition that may be attributable to such agent or agents”).

The fourth requires the identification of a material threat involving chemical, biological, radiological, and nuclear agents sufficient to affect national security or the health and security of US citizens living abroad. 21 U.S.C. §360bbb-3(b)(1)(D) (“the identification of a material threat [involving chemical, biological, radiological, and nuclear agents] pursuant to section 319F–2 of the Public Health Service Act [42 U.S.C. 247d–6b] sufficient to affect national security or the health and security of United States citizens living abroad”).

Under the above statute, there is no legal basis on which the President may waive the EUA in order to mandate the COVID-19 vaccines for the military. Indeed, he has not done so because he has no statutory authority under the law.

Even after the HHS Secretary establishes that one of the four criteria are satisfied, then under § 360bbb–3 the HHS Secretary must make a separate determination that an “agent” referred to in the declaration can cause a serious or life-threatening disease or condition, and that based on the scientific evidence available about the product authorized under the EUA, (i) it may be effective in diagnosing, treating, or preventing the disease or serious life-threatening disease, (ii) the known and potential benefits outweigh the risks; (iii) there is no adequate, approved, and available alternative to the product authorized under the EUA; (iv) in the case of a military emergency based on a biological, chemical, radiological, or nuclear agent, the Secretary of Defense made the emergency use request; and (v) other criteria established by regulation are satisfied.

None of the foregoing criteria have been satisfied.

The defendants have ignored their obligations under the EUA statute. There has been no Presidential declaration sufficient to invoke the exceptions of the EUA statute; nor can there be such a declaration under the law and the facts.

There has been no domestic emergency, military emergency, public health emergency, nor material threat of a biological, chemical, radiological, or nuclear agent or a disease attributable to one of those conditions. As such, defendants are prohibited by the EUA statute from mandating that plaintiffs and all similarly situated United States Military members receive or accept one of the COVID-19 vaccines.

While the EUA can be waived for the military following strict and limited criteria, none of which apply here, the EUA cannot be waived for civilians.

There are no FDA-approved COVID shots available. In August 2021, the FDA stated that although the COMIRNATY COVID-19 “vaccine” was granted full approval, the Pfizer-BioNTech COVID-19 “vaccine” was still subject to the EUA law (Pfizer Letter at 2 n.9).

All existing vials of the EUA-approved Pfizer-BioNTech COVID-19 “vaccine” remain under the EUA (Pfizer Letter at 2 n).

In fact, the FDA Pfizer Letter plainly indicates that BioNTech’s COMIRNATY “vaccine” is not available in the United States: “Although COMIRNATY (COVID-19 Vaccine, mRNA) is approved to prevent COVID-19 in individuals 16 years of age and older, there is no sufficient approved vaccine for distribution to the population (Pfizer Letter at 6 n..12 (emphasis added)).

THE MANDATES VIOLATE RELIGIOUS FREEDOM

The plaintiffs all hold sincere religious beliefs against the COVID shots on the basis that their body is the temple of the Holy Spirit and to defile it is a sin against God. In addition, the plaintiffs do not want to participate directly or indirectly or otherwise be associated with the destruction of human life through abortion by injecting a product that contains or was tested or developed with aborted fetal cell lines.

Plaintiffs have all submitted religious exemption requests. The military plaintiffs are being told there are NO RELIGIOUS exemptions, and merely submitting such a request will subject them to dishonorable discharge. The federal employees and civilian contractors similarly have faced opposition and none of the civilian contractors have received any guidance on where or how to file a religious exemption. Yet, the deadlines for everyone are fast approaching at which time they will be terminated.

The plaintiffs’ free exercise of religion is protected under the federal Religious Freedom Restoration Act of 1993 (RFRA). Regarding RFRA, the Supreme Court wrote, “That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases” (emphasis added).

In addition to RFRA, the plaintiffs’ free exercise of religion is also protected by the First Amendment.

Liberty Counsel’s military plaintiffs in this lawsuit have all agreed and sworn an oath to protect and defend the Constitution of the United States and to sacrificially lay down their life for their fellow citizens against enemies both foreign and domestic. These military heroes face dishonorable discharge, court martial, termination and other disciplinary actions merely for submitting their religious exemption requests.
Liberty Counsel is also representing clients on behalf of the 3.7 million employees under federal government contracts and two million federal employees who are under the Biden administration’s COVID shot mandate. Biden exempted the IRS and the United States Postal Service.

Liberty Counsel Founder and Chairman Mat Staver said, “The Biden administration has no authority to require the COVID shots for the military or for federal employees or civilian contractors. Nor can the Biden administration pretend that the federal Religious Freedom Restoration Act and the First Amendment do not apply to its unlawful mandates. The Commander-in-Chief must end this shameful treatment and abuse of our brave military heroes. Forcing the COVID shots without consent or consideration for their sincere religious beliefs is illegal.” Liberty Counsel is a news partner with the Wyoming News.