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California is called the land of fruits and nuts, but the Harry and David Company – esteemed purveyor of fruits, nuts, and other delicacies – calls Oregon its home. Oregon gave us Tonya Harding and Ndamukong Suh. Oregon is also the only state besides New Jersey that forbids motorists from pumping their own gas.

We prosecuted cases in Los Angeles, and we thought we saw lots of nuttiness. But an AUSA colleague in Portland, Oregon told a story that topped any of ours. He got a guy convicted of fraud and the judge sentenced the crook to a nice, long sentence. But the Ninth Circuit (grrrrrrr) overturned the sentence because the trial judge had not adequately explained the bases for the sentence. The case was remanded. At the resentencing, the judge came out onto the bench, glared at the defendant and said “Because you’re no damned good.” Then the judge stood up and strolled back to chambers. The sentence was then upheld by the Ninth Circuit.

What is our point? Well, we’re not exactly shocked when we see crazy stuff in Oregon. Consider Johnson v. Brown, 2021 U.S. Dist. LEXIS 200159 (D. Oregon Oct. 18, 2021), in which forty-two antivaxxers challenged a state ordered Covid-19 vaccination mandate. The Governor of Oregon and the Oregon Public Health Authority required certain employees, not exempt on medical or religious grounds, to be vaccinated against Covid-19 or risk losing their jobs. The plaintiffs were healthcare providers, teachers, agency employees, etc. who did not wish to get vaccinated. They sued the Oregon Governor and head of the Oregon Health Authority under both federal (section 1983 and the Supremacy Clause) and state (no coercion to take experimental treatment) law. The plaintiffs sought a temporary restraining order.

We have written recently and frequently (here and here, for example) about the well-established constitutionality of vaccine mandates. The SCOTUS decision in the 1905 Jacobson case, which upheld a smallpox vaccine mandate, is still good law. Hence, the Oregon lawsuit was a dead duck in the water from the moment it was filed. But why do we call it crazy? Here’s why: the plaintiffs invoked “the international law doctrine of jus cogens” in an attempt to override US constitutional law. Mind you, some of the folks resisting vaccine mandates also wear foil hats and fret over worldwide conspiracies, so the call out to international law is a wee bit surprising. But any port in a crazy-storm will do, we suppose.

The Johnson court patiently recited the background of the Covid crisis and the development of vaccines. The Johnson court explained that the vaccine at issue in Oregon was the same one that had undergone a large-scale clinical trial and been authorized in the USA, Europe, and all around the world. It was not, as the plaintiffs asserted, an “experimental” vaccine. That “experimental” label was crucial to the plaintiffs’ argument, including the citation to international law.

Why? Anytime a court reviews government action, the standard of review is almost outcome determinative. If a court is applying strict scrutiny, the government action must be narrowly tailored to serve a compelling interest. That is not easy. By contrast, if the government action must merely pass rational basis review, it will not be overturned unless it is wholly arbitrary. That is easy. Note that we used the word “almost” above. There have been instances where government actions have satisfied strict scrutiny. There have also been instances where government actions flunked rational basis review. But they are as rare as thought-provoking Adam Sandler movies, Philly sports championships, or honest plaintiff experts.

The plaintiffs in Johnson wanted the Oregon vaccine mandate to run the gauntlet of strict scrutiny. That was not in the cards. There is no fundamental right to refuse vaccination. The Johnson court read the Jacobson case to reveal that “the right to refuse vaccination is not deeply rooted in this nation’s history.” More specifically, here the preference not to receive an FDA-authorized vaccine implicated no fundamental right.

And that is where the international “jus cogens” concept came into play. The plaintiffs contended that coercing people to submit to experimental medical treatment violates international norms in place since the Nuremberg prosecutions of the Nazis after the Second World War. According to the plaintiffs, such international law trumps the usual standards of reviewing government action, warranting a level of review even tougher than strict scrutiny. Nice try.

Not really. It is, in fact, a nutty, even offensive, try. The Johnson court was unmoved by jus cogens because COVID vaccination is anything but “experimental.” Vaccine mandates are not a coerced medical experiment under international law. Moreover, the plaintiffs are free not to get vaccinated; they just must face the consequences. As the Johnson court reasoned, “This simply is nowhere the same as Nazi doctors performing experiments on victims held against their will in concentration camps.”

Having disposed of the, ahem, unusual international law wrinkle, the Johnson court applied the usual Jacobson standard, which was rational review, and which doomed the plaintiffs’ Due Process argument. The Johnson court found a rational basis for the vaccine mandate based on an influx of unvaccinated COVID patients filling the state’s hospitals and preventing everyone else from receiving necessary non-COVID medical care. The Johnson court also alluded to the Jacobson decision’s recognition of a state’s broad “police power” to enact quarantine and health laws. (Before you anti-antivaxxers and antimaskers celebrate too much, ask yourselves what this reasoning means when states enact laws preventing businesses or governmental subdivisions from requiring masks or vaccine passports. You might not like where the state police power analysis takes you.)

The Johnson court also held that the plaintiffs’ privileges and immunities claim is contrary to over a century of law. (It is probably true that the Supreme Court long ago mangled the Constitution, unduly narrowing privileges and immunities and unduly expanding due process, but that doesn’t mean the anti-vaxxers even came close to having a valid point in this case).

For once, we agree with a court’s conclusion that there was no federal preemption. The plaintiffs argued that the Oregon vaccine mandate ran afoul of federal informed consent laws associated with emergency use authorizations. The Johnson court held that such laws applied to medical providers, not the defendants in this case. Moreover, adequate information regarding the risks of the vaccine was available. And then there is the inescapable fact that the plaintiffs were not forced to vaccinate, only to face the consequences of their inaction. That might be “a difficult choice, but it is nevertheless a choice.”

The plaintiffs’ state-law arguments also failed due to the Eleventh Amendment, under which “federal courts may not entertain a lawsuit brought by a citizen against a state, its agencies, or departments without the state’s consent.” The Eleventh Amendment bars federal courts from “providing forward-looking relief against state officials based on state law.” No injunction was legally available, and that means that plaintiffs could not show they were likely to succeed on the merits of their state law claim.

The court disposed of the plaintiffs’ other arguments in a clear and orderly fashion. The court held that the plaintiffs were guilty of laches in waiting until the last minute to sue. The alleged losses of employment or unpaid leave were not irreparable harms. In fact, many of the harms alleged were deemed speculative or no real harm at all. Finally, in assessing the balance of equities as to whether or not to issue an injunction, the Johnson court followed Jacobson in concluding that the public interest favored vaccination: “This proposition was true then, and it remains true today.”

To many casual observers, and to pro-vaccine partisans (that the vaccine issue has become a partisan issue is a cause for grief), that last point is also the first point, and maybe the only point. But to the Johnson court’s credit, it faithfully and carefully performed the work of legal analysis, and got to a result that was principled as well as practically sound.