City from Below

                      JACOBSON TWO PRONG TEST:

PART 1: TO BE DETERMINED IN ACCORDANCE WITH THE REASONABLE COMMON BELIEF 

PART 2: QUESTION OF LAW, TO BE DETERMINED BY THE COURT

If a statute purporting to have been enacted to protect the public health, the public morals, or the public safety:

 

1) has no real or substantial relation to those objects,

 

2) or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law,

 

it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.

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The second "beyond all question" prong of the Jacobson test places a high, though not insurmountable burden on meeting its requirement.  Therefore, the lawfare battleground should focus on Prong 1's language, "no real or substantial relation to those objects."

 

Here, unlike Prong 2, the burden is on the state to prove there is a real or substantial relation based on the reasonable common belief to those objects. Those objects being the protection of public health or public safety.

In other words, for a mandatory vaccination statute to be constitutional, there must be a reasonable common belief that there is a real or substantial relationship between forced injections and public health or safety. 

 

This analysis turns on both the legal definition of the phrase "real or substantial", and the common belief with respect to the nexus between an experimental vaccine and public health or safety"...

CURRENT CASES CITING JACOBSON

 

 

In Cross Culture Christian Center v. Newsom, relying upon the Jacobson authority, the Court held that when normalcy is lost, a “community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”  Thus, when a state or locality exercises emergency police powers to address public health issues, the measure will be upheld “unless (1) there is no real or substantial threat to public health, or (2) the measures are ‘beyond all question’ a ‘plain, palpable invasion of rights secured by [] fundamental law.’” The Court found that the California executive orders banning mass gatherings met this test because they “flow[ed] from a larger goal of substantially reducing in-person interactions.”

In McGhee v. City of Flagstaff, the District Court for Arizona relied on Jacobson in denying the request for a temporary restraining order and held that the orders had at least some “real or substantial relation” to the public health crisis and were not beyond all question a plain, palpable invasion of the plaintiff’s fundamental rights. 

In Open Our Oregon v. Brown, the District Court for Oregon decided to “side with the chorus of other federal courts in pointing to Jacobson and rejecting similar constitutional claims brought by Plaintiffs challenging similar COVID-19 restrictions in other states.”

Conversely, in Robinson v. Marshall, the District Court for the Middle District of Alabama granted a preliminary injunction enjoining state health officer’s order mandating the postponement of all non-emergency medical procedures during the COVID-19 outbreak. In this case, the court relied on the “backstop role for the judiciary” outlined by Jacobson:  “[I]f a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Even though the court gave great weight to the State’s interests (preventing social contact, preserving personal protective equipment and preserving other health care resources), it still determined that the order posed a deprivation of a Fourteenth Amendment right, necessitating court intervention. 

TO BE CONTINUED

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