Commentary: A Closer Look at a Supreme Court Case That Could Help Decide the Legality of Biden’s Vaccine Mandate

Every now and again, an otherwise arcane legal topic suddenly becomes relevant to contemporary political debate. At that point, general commentary suddenly becomes filled with newly minted experts with strong positions on what is typically a nuanced issue. Thus, at various points during the past decade, Twitter saw a flood of hitherto undisclosed connoisseurs on the intricacies of the Logan Act, a constitutionally problematic piece of legislation that emerged from the same 18th century administration that brought us the infamous Alien and Sedition Acts. In the aftermath of Hurricane Maria, some observers suddenly expressed deep-seated opinions on the Jones Act, a complex piece of maritime law most people had probably never heard of prior to 2017.

So it seems to be with Jacobson v. Massachusetts, the previously obscure 116-year-old precedent – it barely warrants a footnote in most constitutional law treatises – that people have taken to citing whenever anyone questions the legality or constitutionality of vaccine mandates in response to the COVID-19 pandemic. But Jacobson is not some sort of argumentative checkmate. If the decision were actually taken to the lengths that some of its proponents suggest, it would be a truly terrifying ruling.

Although I drafted most of this article before encountering Josh Blackman’s excellent law review article on Jacobson (available here), I did rely on it for some of the procedural history of the case, as well as some of the cases from the pandemic that relied upon Jacobson. It is well worth a read for anyone else interested in learning more about the case.

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Commentary: Republicans Will Defend Their Corporate Friends but Not Their Voters

Senator Lindsey Graham (R-S.C.) has so many problems to solve right now. A crime wave leaves hundreds of Americans dead and has turned our cities into war zones. A border crisis allows hundreds of thousands of illegals to enter our country. A domestic war on terror threatens basic civil liberties. 

But none of these crises have persuaded Graham to go to war. No, the civilizational question that demands his full zeal has to do with . . .  a fast-food chain. 

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Commentary: Biden’s Domestic Terrorism Strategy Has Roots in Clinton Years

The “National Strategy for Countering Domestic Terrorism,” released last month by the National Security Council, claims to take a “narrowly tailored” approach. Something along those lines is indeed evident throughout the document.

In 2016, readers learn, “an anti–authority violent extremist ambushed, shot, and killed five police officers in Dallas.” The national strategy document does not identify the killer, Micah Johnson, an African American veteran who hated cops. Johnson actually shot a dozen officers but managed to kill only five, and he had bomb-making materials in his home. This killer only opposes “authority” and his murder victims remain unidentified in the NSC document.

In 2017, according to the National Strategy “a lone gunman wounded four people at a congressional baseball practice.” Readers are not told this was James Hodgkinson, a Bernie Sanders supporter who hated Republicans and targeted them for assassination. That should easily qualify as domestic terrorism but here Hodgkinson is only a “gunman.” The National Strategy does not reveal that the “wounded” included Representative Steve Scalise (R-La.), who barely escaped with his life. The NSC document fails to mention that Hodkinson also shot Capitol Police special agent Crystal Griner, an African American.

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