As even Nature magazine’s resolute post hoc defense of the failed COVID-19 vaccine regimes admits: “With people becoming less afraid of COVID-19 and vaccines offering less [read: no] protection against infection by Omicron variants, plans this spring [of 2022] to introduce new nationwide mandates in Austria and Germany, for example, were rejected or never enforced .”^[ii]

But while the COVID regimes had largely retreated in the latter days of 2022, they represent an always-latent tendency of political modernity and its concept of “emergency powers.” What I have encountered in the context of civil rights litigation in the federal courts of the United States will make that clear.  But first a brief look at the oppressive COVID regimes themselves, with a particular emphasis on the vaccine mandates.

1. Politicized Public Health Policy

As Nature further admits: “Vaccine mandates do risk overly politicizing health policy… But it is hard to accurately quantify the consequences such as social exclusion, loss of public trust or inequitable outcomes. Numerous other factors are at play, such as the way a government handled the pandemic overall …”^[iii] Indeed, the wave of vaccine mandates that swept the Western world followed upon a series of irrational government-imposed restrictions on daily life based on little or no scientific evidence, including the following:

• everyone must stay six feet away from everyone else in public;
• everyone must wear cloth masks in public;
• all businesses and other public-facing facilities must close, save those deemed “essential” by politicians and health department bureaucrats;
• even officially favored entities must operate according to arbitrary, color-coded schedules of capacity limitations, with only the most favored businesses (including abortion mills and liquor stores) allowed full capacity, while houses of worship were shuttered or tightly limited to a certain number of people or a certain small percentage of occupancy.

Opponents of the resulting “sanitary dictatorships” argued, to no avail, that these measures were pseudo-scientific nonsense amounting to little more than superstitions, and that the spread of a highly infectious viral illness can no more be contained than the winds of March. But even as it became apparent mid-pandemic that the COVID-19 regimes were immensely destructive of society while conferring no discernible public health benefit, and even worsening the pandemic by delaying the widespread acquisition of natural immunity from infection,^[iv] power politics thoroughly corrupted public health policy, which became little more than an instrument of population control by Left-leaning governments. In jurisdictions controlled almost entirely by the Democrat Party in the United States and its liberal analogues in Europe, the debacle continued unabated, surviving all but a few attempts at judicial review. The prevalence of COVID-related restrictions on hapless populations could soon be neatly mapped according to the party affiliation of those in power, especially in the U.S.

In the United States, beyond liberating houses of worship from the worst restrictions of the COVID-19 regimes, neither the Supreme Court, nor the Circuit Courts, nor the District Courts did anything to bring an end to the “lockdowns” imposed almost exclusively by Democrat politicians.

Not even the United States Supreme Court was willing to apply generally to COVID-19 restrictions the dictum it reserved solely to its decision ordering the reopening of houses of worship in New York State that had been virtually closed while favored businesses operated at full capacity (thus undermining the entire rationale for “lockdowns”):  “But even in a pandemic, the Constitution cannot be put away and forgotten.”^[v]  

Even before the Supreme Court handed down its 5-to-4 decision in Roman Catholic Diocese of Brooklyn v. Cuomo (“Brooklyn Diocese”), however, co-counsel and I succeeded in obtaining an injunction against Cuomo’s capacity limits on houses of worship, compelling Cuomo to accord them at least the same treatment as  favored retail businesses. That decision, sad to say, was a lone outlier in the federal judiciary at the time. Following a solo concurrence by Justice Roberts in the high Court’s denial of emergency relief to worshippers pre-Brooklyn Diocese, and before Justice Barrett joined the Court to provide the deciding vote in Brooklyn Diocese, the Supreme Court’s antiquated decision in Jacobson v. Massachusetts (1905)^[vi] was universally cited by District and Circuit courts under the rubric of “Jacobson deference” to the draconian dictates of politicians and health bureaucrats wielding unprecedented “emergency” powers, no matter how irrational the dictates.

In the United States, beyond liberating houses of worship from the worst restrictions of the COVID-19 regimes, neither the Supreme Court, nor the Circuit Courts, nor the District Courts did anything to bring an end to the “lockdowns” imposed almost exclusively by Democrat politicians. Meanwhile, the mainstream media maintained a ceaseless drumbeat of propaganda against Republican-controlled jurisdictions, above all Florida, that were daily demonstrating the futility of the lockdowns, the useless cloth masks,^[vii] and the absurd six-foot “social distancing”^[viii] rule by simply allowing people to return to normal life with no sign of the catastrophe the media insisted would be the result of returning to “the old normal.” 

In fact, the states with the most draconian COVID-19 regimes fared no better in terms of rates of infection and infection fatality rates, and in many cases worse, than those with few or no restriction on fundamental liberties. Much too little, and much too late, came a definitive meta-analysis of the COVID-19 regimes by Johns Hopkins University which entirely vindicated Republican “lockdown” opponents, including Governor DeSantis of Florida, who rejected the lockdown strategy ab initio.  As the study concluded:

“The results of our meta-analysis support the conclusion that lockdowns in the spring of 2020 had little to no effect on COVID-19 mortality….

The use of lockdowns is a unique feature of the COVID-19 pandemic. Lockdowns have not been used to such a large extent during any of the pandemics of the past century. However, lockdowns during the initial phase of the COVID-19 pandemic have had devastating effects. They have contributed to reducing economic activity, raising unemployment, reducing schooling, causing political unrest, contributing to domestic violence, loss of life quality, and the undermining of liberal democracy. These costs to society must be compared to the benefits of lockdowns, which our meta-analysis has shown are little to none.

Such a standard benefit-cost calculation leads to a strong conclusion: until future research based on credible empirical evidence can prove that lockdowns have large and significant reductions in mortality, lockdowns should be rejected out of hand as a pandemic policy instrument.”^[ix]

Only when the glaring example of “liberated” jurisdictions, above all “the Free State of Florida,” had finally made the COVID-19 regimes untenable even in liberal-controlled jurisdictions were they allowed to expire, but only on the proviso that “emergency powers”  in a seemingly endless state of emergency could be exercised once again at the whim of politicians and health bureaucracies.

Accordingly, in November of 2022, long after the United States population had abandoned the wearing of masks—with no resulting “viral apocalypse”—the federal Department of Health and Human Services, under the  nearly three-year-long “state of emergency” the Biden administration refused to end, floated the idea of mandating  the useless masks once again on the pretext that “The lifting of mask mandates and indifferent attitude towards masking and social distancing typical in many public and private places further isolates people with Long COVID.”^[x]  That “Long COVID” had not been proven to exist by any competent scientific evidence was no impediment to the latest “public health” ukase of the Democrat administration.  “Long COVID” was just  the latest pretext for population control.

The remnants of federalism in America may bar a return to the ruinous masking/social distancing/lockdown status quo ante in any state whose government is controlled by Republicans. But there is no such prospect for those residing in Democrat-controlled jurisdictions, including the federal government under Democrat control.

This despite a federal district judge’s injunction in November of 2021—a noble exception to judicial inaction—striking down the Transportation Safety Administration’s ridiculous, patently ultra vires “mask mandate” for airports, airplanes, and all other forms of interstate mass transit in the United States.^[xi]  A full year after the end of mandatory masks in mass transit had demonstrated that universal masking was an utterly pointless burden on the population, the Biden administration persisted in its appeal of that decision  on the grounds that it wishes to retain the power to mandate masks and other restrictions in the future—power in the form of population control being, of course, the real aim of measure.^[xiii]  The January 2023 oral argument in the case before a three-judge panel, whose decision has not been handed down as of this writing, offers little hope of judicial recognition of the institutional idiocy involved in forcing millions of Americans to wear useless pieces of germ-laden cloth on their faces for endless hours in airports, on airplanes, and in all other mass transit settings.  One judge interjected the absurd observation that if the CDC can inconvenience a few disease-carrying individuals entering the country by quarantining them for a time, as the pertinent regulation allows, it can certainly force millions of Americans to don useless masks that make travel unbearable whenever it wishes to impose this ridiculous burden, even though the regulation says nothing about this. That universal masking is utterly worthless is, according to the tenor of the oral argument, not even on the table for discussion.  The lenient “rational basis” test American courts apply to government regulations of this kind—any “rational basis” will do—literally allows the government to be irrational.  The most one can expect from this court, it seems, is a holding that the Biden administration technically failed to follow the Administrative Procedure Act when it imposed the measure, leaving the government free to get it right the next time it wishes to force millions of people to wear masks for no reason.

As one can see, the remnants of federalism in America may bar a return to the ruinous masking/social distancing/lockdown status quo ante in any state whose government is controlled by Republicans. But there is no such prospect for those residing in Democrat-controlled jurisdictions, including the federal government under Democrat control when it comes to the few areas it can arguably regulate nationally— e.g., requiring masks for interstate travel.

2. The Irrational Vaccine Mandates

Beginning in the summer of 2021, long after it had become apparent that the masking/social distancing/lockdown paradigm had massively failed to prevent the unpreventable spread of COVID-19, left-leaning governments throughout the West declared that the situation was worse than ever and that, accordingly, everyone must be “vaccinated” with experimental serums hastily developed and aggressively marketed by Moderna, Pfizer, Johnson & Johnson and AstraZeneca. Here too it was possible to map the resulting creation of virtual gulags for the “unvaccinated” according to the political party in control of the relevant jurisdiction. At no time in the epoch of COVID was the politicization of public health policy more apparent: left-leaning governments demanded universal vaccination under penalty of social exclusion, conservative governments rejected it, and the liberal media ceaselessly denounced “the unvaccinated” and the conservative political leaders who simply allowed them to live a normal life.

As with the failed masking/social distancing/lockdown regimes, the “vaccine mandate” jurisdictions—predictably enough—fared no better than those without vaccine mandates of any kind. On the contrary, within a year of the mandates’ appearance in the United States, even The Washington Post was constrained to admit that the majority of deaths attributed to COVID-19 “were people who were vaccinated or boosted,” which the Post described as “a continuation of a troubling trend.”^[xiv]  Opponents of the mandates would argue that this outcome was merely confirmation of the obvious: that the American people had been deceived yet again by the false promises of liberal politicians and a thoroughly politicized “health care” establishment.  As President Biden infamously declared in July of 2021: “You’re not going to get COVID if you have these vaccinations.  If you’re vaccinated, you’re not going to be hospitalized, you’re not going to be in the ICU unit, and you’re not going to die.”^[xv]

By August of 2022 the Centers for Disease Control (CDC) had declared vaccine mandates essentially pointless because none of the COVID-19 vaccines had prevented viral transmission or infection.

By August of 2022 the Centers for Disease Control (CDC) had declared vaccine mandates essentially pointless because none of the COVID-19 vaccines had prevented viral transmission or infection, as witness the repeated infection of conspicuously vaccinated and multiply “boosted” politicians and celebrities, who nonetheless insisted upon the conveniently non-falsifiable proposition that their personal symptoms would have been worse without “vaccination.”^[xvi]  Putative personal symptom reduction, however, was no rationale for mandatory universal vaccination to “stop the spread” and “prevent infection.” That rationale had evaporated in short order.

3. The Mixed Results of Judicial Intervention

But even as the reality that vaccine mandates were another government fraud upon the populace was only dawning, in October of 2021, in the widely reported case of Dr. A. v. Hochul,  co-counsel and I were able to obtain an injunction against enforcement of the statewide “vaccine mandate” for medical professionals imposed by New York’s Governor Hochul, successor to Governor Cuomo (who resigned in disgrace). Hochul’s mandate had eliminated the religious exemption in Cuomo’s earlier version, yet allowed medical exemptions, thus violating the equal treatment for religion required by the Free Exercise of Clause of the First Amendment and the preference for religion in workplace accommodation required by Title VII of the Civil Rights Act of 1964.  And so the Court held.^[xvii] 

That injunction was quickly reversed, however, by the Second Circuit Court of Appeals under the bizarre theory that while Title VII allowed hospitals and other medical employers to “accommodate” the Plaintiffs’ religious objections to COVID-19 vaccines (which had been tested, developed or produced with cell lines derived from abortion), it did not require an “exemption”—a distinction never before discerned in Title VII, which uses the two terms interchangeably. The Second Circuit was inexplicably unfazed by Governor Hochul’s blatantly religious enmity toward “the unvaccinated” who, she publicly declared, “aren’t listening to God and what God wants.”^[xviii]

The Dr. A. injunction having been reversed, some 34,000 healthcare professionals in the State of New York were fired or forced to resign or retire by their employers for want of a vaccination that was already proving incapable of “stopping the spread” of COVID-19.^[xix] Hochul’s “vaccine mandate” caused the very shortage of health care professionals it was supposed to prevent. Its sheer irrationality demonstrated that the only principle at work here was not “public health and safety” but rather “the Governor must win.”

To no avail was Plaintiffs’ emergency application for an injunction to the United States Supreme Court in December of 2021.  While Justices Thomas, Alito and Gorsuch would have granted the application, the Court’s majority was unmoved, despite Justice Gorsuch’s observation in a scathing dissent:

“Today, we do not just fail the applicants.  We fail ourselves …. Sometimes dissenting religious beliefs can seem strange and bewildering. In times of crisis, this puzzlement can evolve into fear and anger. It seems Governor Hochul's thinking has followed this trajectory, and I suspect she is far from alone…. One can only hope today's ruling will not be the final chapter in this grim story.”^[xx]

This case did return to the Supreme Court for full merits review in June of 2022 on a petition for certiorari, by which time the vaccine failure debacle was known to all, as well as the mounting evidence of COVID-19 vaccine injury, including deadly blood clots, myocarditis and pericarditis. Yet the Court’s majority remained unmoved by the fate of Plaintiffs and tens of thousands of other health care professionals whose careers were destroyed because they would not violate their religious beliefs by submitting to an essentially pointless vaccination with the potential for grave harm. And, once again, Justices Thomas, Alito and Gorsuch would have granted the application. In his dissenting opinion, Justice Thomas chastised his colleagues for ducking the obvious question of religious discrimination presented: Can a law that allows medical exemptions, but bars religious exemptions, ever be considered “neutral and generally applicable”^[xxi] with respect to religion—the obvious answer being No.^[xxii]

On January 13, 2022, the Supreme Court, by a vote of 6-to-3, struck down the Biden administration’s attempt to use the Occupational Health and Safety Administration (OSHA) to command roughly 84 million workers to submit to COVID-19 vaccination as a condition of employment—a preposterous power grab.

Six months earlier, on January 13, 2022, the Supreme Court, by a vote of 6-to-3, struck down the Biden administration’s attempt to use the Occupational Health and Safety Administration (OSHA) to command roughly 84 million workers to submit to COVID-19 vaccination as a condition of employment—a preposterous power grab that would have made OSHA the nation’s in-house super-physician, empowered to command any workplace “health measure” it pleased.^[xxiii]

On the same date, however, the Court, by a vote of 5-to-4, upheld the “vaccine mandate” for all healthcare workers in the United States—an “emergency” rule issued by the Centers for Medicare and Medicaid Services (CMS) with no notice or opportunity for comment by the public.  Despite the manifest lack of any COVID “emergency” by January of 2022 and the failure of COVID vaccines to prevent viral infection or transmission, the Court allowed the rule to go into effect by granting a stay of well-founded injunctions against its enforcement issued by two different District Courts. The “conservative” Justice Kavanaugh joined in the opinion that the Secretary of Health and Human Services had the power to compel employers to require the (now evidently useless) COVID-19 vaccines as “necessary to promote and protect patient health and safety”—even though “fully vaccinated” healthcare workers had long been spreading the virus to patients and vice versa.^[xxiv]

As the dissent by Justice Thomas,  joined by Justices Alito, Gorsuch and Barrett observed:  “These cases are not about the efficacy or importance of COVID–19 vaccines. They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.”^[xxv] In a separate dissent, Justice Alito, joined by Justices Thomas, Gorsuch and Barrett, issued this dire warning:

Today’s decision will ripple through administrative agencies’ future decision-making. The Executive Branch already touches nearly every aspect of Americans’ lives. In concluding that CMS had good cause to avoid notice-and-comment rulemaking, the Court shifts the presumption against compliance with procedural strictures from the unelected agency to the people they regulate. Neither CMS nor the Court articulates a limiting principle for why, after an unexplained and unjustified delay, an agency can regulate first and listen later, and then put more than 10 million healthcare workers to the choice of their jobs or an irreversible medical treatment.^[xxvi]

As things now stand, despite its earlier rejection of “Jacobson deference” in the context of church closures imposed by Democrat-controlled COVID regimes, the Supreme Court has validated the principle that politicians and unelected bureaucrats invoking “emergency” powers that never expire can coerce millions of people to undergo medical treatment they neither need nor want. That the CMS mandate actually requires a process for granting religious exemptions from vaccination is cold comfort to the Plaintiffs we represented in Dr. A. v. Hochul, for the issue of religious exemptions under the CMS mandate has, as of this writing, returned to the same Circuit Court that has already declared, respecting Governor Hochul’s state-level vaccine mandate, that federal law under Title VII does not allow “exemptions,” but only “accommodations”—an invented distinction without a difference.

4. Lesson Learned: the “Hidden Paradigm” of Western Democracy

The political philosopher Matthew Crawford of the University of Virginia has rightly observed that “the culture of COVID” is “the endgame of political liberalism.”^[xxvii]  But the goal of that game is something far more dramatic than what Crawford views as a departure from the principles of Lockean liberalism. For it is those very principles that have conduced to “the culture of COVID” by circumscribing “rights” within the ambit of a contractual political society—Locke’s paramount novelty—in which there is no authority higher than that of elected representatives empowered to suspend those rights during an “emergency” the Italian political philosopher Giorgio Agamben has termed the “state of exception.”

Our rescue awaits a new day and a new order, which it seems can only be, mutatis mutandis, a return of the old one.

As Agamben correctly discerns, the state of exception in which contractarian rights  are declared suspended for the supposed common good is precisely a novelty of political modernity: “The idea that a suspension of law may be necessary for the common good is foreign to the medieval world. It is only with the moderns that the state of necessity tends to be included within the juridical order and to appear as a true and proper “state” of the law.”^[xxviii]

The political societies that emerged from the “age of democratic revolution” thus presented a new and paradoxical situation for the “citizen” versus the subject. Writes Agamben:

[I]n a hidden but continuous fashion… the spaces, the liberties, and the rights won by individuals in their conflicts with central powers always simultaneously prepared a tacit but increasing inscription of individuals’ lives within the state order, thus offering a new and more dreadful foundation for the very sovereign power from which they wanted to liberate themselves.^[xxix]

Agamben’s famous conclusion about the “hidden paradigm” of democracy can no longer been seen as extravagant in the “epoch of COVID” with its lockdowns, “vaccine mandates,” “vaccine passports” and even COVID detention centers in such places as Canada and Australia:

[T]he camp—as the pure, absolute, and impassable biopolitical space (insofar as it is founded solely on the state of exception)—will appear as the hidden paradigm of the political space of modernity, whose metamorphoses and disguises we will have to learn to recognize.^[xxx]

And whereas in the old order the Church would act as a check on royal power, in the new order the Church has not only been taken out of commission as a political force but has become a cooperator in its own subjugation. Accordingly, religious leaders—“from the Pope on down,”^[xxxi] as Governor Hochul put it—have shamefully defended the COVID regimes, with Francis declaring COVID vaccination to be a moral duty even as the futility and harmfulness of the vaccines had become apparent.^[xxxii] Agamben rightly decries this abject failure of the Church, whose opposition to the COVID regimes has amounted to little more than objections to the extent of capacity limits on worship spaces:

I cannot fail to mention the even more serious responsibility of those who had the duty to keep watch over human dignity. The Church above all, which, in making itself the handmaid of science, which has now become the true religion of our time, has radically repudiated its most essential principles. The Church, under a Pope who calls himself Francis, has forgotten that Francis embraced lepers. It has forgotten that one of the works of mercy is that of visiting the sick. It has forgotten that the martyrs teach that we must be prepared to sacrifice our life rather than our faith and that renouncing our neighbor means renouncing faith. 

As this article has shown, judicial review of rights violations under the COVID regimes is sharply limited by the “state of exception” that the courts—even the Supreme Court’s majority—accept as a given to which substantial deference is owed. Such is the precarious state of contractarian “rights” which, as Pierre Manent has put it, lose their “ontological density” in political societies officially divorced from the transcendent source of the moral order. In this situation, we can only hope for limited and temporary reprieves from the “hidden paradigm” whenever it emerges from hiding, as it has been doing with increasing frequency and scope of late. But as the readers of this newspaper understand all too well, a few hard-won reprieves owing to judicial review will not deliver us from our predicament. Our rescue awaits a new day and a new order, which it seems can only be, mutatis mutandis, a return of the old one.

Latest from RTV — CANCELING RELIGIOUS FREEDOM: From Francis to Zelenskyy & Kiev to Chicago

[Editor’s Note: This article, adapted for The Remnant,  appears in the Italian edition of “Politics,  Law and Religion,” available at amazon.]

[i] By August 2022, having admitted the failure of the COVID-19 vaccines to prevent transmission or infection by the Delta and Omicron variants of the virus, the Centers for Disease Control (CDC) announced that “CDC’s COVID-19 prevention recommendations no longer differentiate based on a person’s vaccination status because breakthrough infections occur, though they are generally mild, and persons who have had COVID-19 but are not vaccinated have some degree of protection against severe illness from their previous infection.”  The CDC thus conceded the entire case against vaccine mandates.  See “Summary of Guidance for Minimizing the Impact of COVID-19 on Individual Persons, Communities, and Health Care Systems — United States, August 2022,” https://www.cdc.gov/mmwr/volumes/71/wr/mm7133e1.htm (accessed November 29, 2022).

[ii] Liam Drew, “Did COVID Vaccine Mandates Work? What the data say.”  Nature, Vol. 607, 7 July 2002, p. 25; available at https://media.nature.com/original/magazine-assets/d41586-022-01827-4/d41586-022-01827-4.pdf.

[iii] Ibid., p. 24.

[iv] Even the pro-vaccination fanatic Bill Gates admitted that the Omicron variant “is a type of vaccine, that is, it creates both B-cell and T-cell immunity, and it’s done a better job getting out to the world population than we have with vaccines.” Heather Hamilton, “Bill Gates: Omicron did ‘a better job’ building immunity than COVID-19 vaccines,” Washington Examiner, February 21, 2022,https://www.johnlocke.org/bill-gates-gives-omicron-more-credit-than-vaccines-in-battling-covid/ (accessed December 1, 2022).

[v] Roman Cath. Diocese of Brooklyn v. Cuomo, 208 L. Ed. 2d 206, 141 S. Ct. 63, 68 (2020).

[vi] Upholding a fine imposed during a smallpox outbreak in Massachusetts. Jacobson did not even merit a mention in the Supreme Court’s series of decisions regarding COVID-19 related closures of houses of worship, beginning with the decision in Brooklyn Diocese.

[vii] The infamous Anthony Fauci emailed a friend to advise that masks are ineffective at preventing viral spread, only to publicly call for “mask mandates” three days later—one of the many signs that the population control, not public health, was the object of the national COVID regime over which Fauci presided. During a deposition concerning his collusion with social media platforms to censor views contrary to his own COVID narrative, Fauci could not cite a single study showing that masks are effective. See B. Herlihy, “Fauci emailed friend saying masks were 'ineffective,' pushed for mandates anyway, Missouri AG says,” Fox News, November 25, 2022, https://www.foxnews.com/politics/fauci-emailed-friend-saying-masks-ineffective-pushed-mandates-anyway-missouri-ag (accessed December 1, 2022).

[viii] The notion that it was actually possible for countless millions of people maintain six feet of distance from everyone else in public spaces randomly traversed in all directions has to be seen as one of the most ludicrous legal prescriptions in the history of government.  The origin of the arbitrary “six-foot rule” remains mysterious.

[ix]J. Herby, et al,  A Literature Review and Meta-Analysis of the Effects of Lockdowns on COVID-19 Mortality – II,” May 20, 2022, Studies in Applied Economics, Johns Hopkins Institute of for Applied Economics, Global Health and the Study of the Business Enterprise, https://sites.krieger.jhu.edu/iae/files/2022/06/A-Systematic-Review-and-Meta-Analysis-of-the-Effects-of-Lockdowns-of-COVID-19-Mortality-II.pdf.

[x] Human-Centered Design Report, “Health + Long COVID,” November 2022, https://www.hhs.gov/sites/default/files/healthplus-long-covid-report.pdf.

[xi] Health Freedom Def. Fund, Inc. v. Biden, 572 F. Supp. 3d 1257 (M.D. Fla. 2021).

[xii] See Health Freedom Defense Fund, et al v. President of the United States, et al, 11th Cir., Apr. 21, 2022, ( NO. 22-11287).  .

[xiii] As a legal advisor to the White House on the appeal admitted: “The administration’s goal is a legal principle, which is to ensure that the C.D.C. has strong public health powers to fight Covid and to fight future pandemics.”  C. Savage and S. LaFontaine, “Analysis: The U.S. Appealed to Reinstate Masks. But Is It Seeking to Win?,” NY Times, April 22, 2022, https://www.nytimes.com/2022/04/22/us/politics/biden-legal-strategy-mask-mandate.html (accessed November 29, 2022).

[xiv] McKenzie Beard, “Covid is no longer mainly a pandemic of the unvaccinated. Here’s why,” The Washington Post, November 23, 2022, https://www.washingtonpost.com/politics/2022/11/23/vaccinated-people-now-make-up-majority-covid-deaths/ (accessed December 1, 2022).

[xv] Comments at CNN Town Hall, July 21, 2021, https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/07/22/remarks-by-president-biden-in-a-cnn-town-hall-with-don-lemon/ (accessed December 1, 2022).

[xvi] “Summary of Guidance for Minimizing the Impact of COVID-19 on Individual Persons, Communities, and Health Care Systems — United States, August 2022,” https://www.cdc.gov/mmwr/volumes/71/wr/mm7133e1.htm (accessed December 1, 2022).

[xvii] Dr. A. v. Hochul, 567 F. Supp. 3d 362 (N.D.N.Y. 2021), vacated and remanded sub nom. We the Patriots USA, Inc. v. Hochul, No. 21-2179, 2021 WL 5103443 (2d Cir. Oct. 29, 2021).

[xviii]See “Governor Hochul Attends Service at Christian Cultural Center, Rush Transcript, https://www.governor.ny.gov/news/rush-transcript-governor-hochul-attends-service-christian-cultural-center (accessed November 29, 2022). Opined the Court: “Governor Hochul's expression of her own religious belief as a moral imperative to become vaccinated cannot reasonably be understood to imply an intent on the part of the State to target those with religious beliefs contrary to hers…”—which is exactly what Hochul did by stripping the religious exemption from Cuomo’s version of the mandate.  We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 283 (2d Cir.).

[xix] Even the left-leaning “fact checker” Politifact conceded that “About 34,000 health care workers in New York state did leave their job after the vaccine mandate was enacted,” while arguing that “less than a third of those could be described as being due to ‘firing”” as opposed to forced resignation or retirement.  See “Did New York Gov. Kathy Hochul fire 35,000 health care workers?,” https://www.politifact.com/factchecks/2022/apr/06/rob-astorino/did-new-york-gov-kathy-hochul-fire-35000-health-ca/ (accessed November 29, 2022).

[xx] Dr. A v. Hochul, 211 L. Ed. 2d 414, 142 S. Ct. 552, 557–58 (2021)

[xxi] The “neutral and generally applicable” standard is required by the Supreme Court’s much-criticized decision in Emp. Div., Dep't of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990), which essentially held that laws burdening religion need not undergo strict scrutiny under the First Amendment if they apply generally and neutrally to all (upholding denial of unemployment benefits based on violation of a state law banning the sale of peyote as a controlled dangerous substance, even though it was used in Plaintiffs’ religious rituals).

[xxii] Dr. A. v. Hochul, 142 S. Ct. 2569, 2571 (2022).

[xxiii] Nat'l Fed'n of Indep. Bus. v. Dep't of Lab., Occupational Safety & Health Admin., 211 L. Ed. 2d 448, 142 S. Ct. 661, 670 (2022).

[xxiv] Biden v. Missouri, 211 L. Ed. 2d 433, 142 S. Ct. 647, 652 (2022).

[xxv]Id., 142 S. Ct. at 658.

[xxvi] Id. at 660.

[xxvii] M. Crawford, “Covid Was Liberalisms’s Endgame,” UnHerd, May 21, 2022, https://unherd.com/2022/05/covid-was-liberalisms-endgame/.

[xxviii] G. Agamben, State of Exception (Chicago: University of Chicago Press, 2005), p. 26.

[xxix] G. Agamben, The Omnibus <i>Homo Sacer</i> (Meridian: Crossing Aesthetics) (pp. 100-101). Stanford University Press. Kindle Edition.

[xxx] ibid. p. 102

[xxxi]“Governor Hochul Holds Q&A Following COVID-19 Briefing”, September 15, 2021, https://www.governor.ny.gov/news/video-rough-transcript-governor-hochul-holds-qa-following-covid-19-briefing (accessed November 1, 2022).

[xxxii] “Pope Francis Calls COVID-19 Vaccination Moral Obligation,” VOA News, January 10, 2022, https://www.voanews.com/a/pope-francis-calls-covid-19-vaccination-moral-obligation-/6390278.html (accessed November 1, 2022).

[xxxiii] G. Agamben, “A QUESTION,” https://itself.blog/2020/04/15/giorgio-agamben-a-question/ (accessed March 6, 2023).