I list three cases here:
1. Maxwell v Secretary of Defense et al (currently in First Circuit) seeking an injunction against mandatory vaccination
2. Maxwell v FBI et al (defeated at District Court) -- a civil RICO case, accusing the FBI of the Marathon bombing, in collusion with the Boston Globe, et al
3. Maxwell v Trump (a war powers case, defeated at the First Circuit), seeking an injunction against the nuclear bombing of North Korea
1. Maxwell v Secretary of Defense et al
United States Court of Appeal, First Circuit
No. 20 cv 01193 PB
Mary Maxwell, Plaintiff and Appellant
Lloyd J Austin, US Secretary of Defense,
Robert J Fulton, Acting Administrator of FEMA,
Xavier Becerra, US Secretary of Health and Human Services,
Defendants and Appellees
On appeal from the US District Court, District of New Hampshire,
Filed Pro Se by Mary Maxwell, 175 Loudon Rd, Apt 1, Concord NH 03301.
Tel 603 848 3060. Email: MaxwellMaryLLB @gmail.com
Dated June 20, 2021
Table of Contents
Table of Authorities
Statement of Issues
Statement of Facts
Summary of the Argument
Conclusion to the Argument
Particulars about Covid and the Vaccine
Table of Authorities
Baker v Carr (1963)
Katz v Pershing (2012)
Home Building v Blaisdell (1931)
Jacobson v Massachusetts (1905)
Laird v Tatum (1972)
Lujan v Defenders of Wildlife (1992)
McCullough v Maryland (1819)
Marbury v Madison (1803)
Republican Party of Pennsylvania v Degraffenteid (2021)
STATEMENT OF ISSUES
Appellant sought, on December 5, 2020, an injunction against mandatory vaccination for Covid. She gave as her reasons a desire to have her Fourth Amendment rights protected (i.e., against invasion of her body), and a desire to have the Third Branch weigh in generally by stating that mandatory vaccination is unconstitutional. This, she thinks, would help restore the Constitution at a time when many Americans are saying “Government is now controlled by private individuals and entities – for example Bill Gates, Pfizer Pharmaceutical, or the International Monetary Fund -- for their own purposes.”
The District Court, on February 1, 2021 dismissed the case for lack of subject matter jurisdiction, saying that the Plaintiff did not state an injury that is imminent and irreversible, and not hypothetical, and that none of the three Defendants have to date ordered anyone to be vaccinated. Plaintiff’s choice of defendants was based on the US President’s stating on May 15, 2020 that his Operation Warp Speed would involve the military in the supply and distribution of the vaccine when it got FDA approval (which it did, on an Emergency Use Authorization basis, in December 12, 2020) and the President’s putting FEMA in charge of the overall response to Covid. DHHS is the department that oversees the CDC which delivers the recommendations for vaccination.
Plaintiff also pleaded that a “vaccine tatoo” may open up new types of surveillance that violate her Fourth Amendment rights to privacy.
STATEMENT OF THE FACTS
Now that more time has passed since her December 5, 2020 pleadings, we see that the vaccination was voluntarily accepted by a reported two-thirds of the US adult population. There has not been any federal order mandating a vaccination. The 50 states have taken various positions. For example, Governor Charlie Baker of Massachusetts had mandated the Covid vaccination for all students age 12 -30, but he withdrew that in the face of public protest. Overseas, some countries mandated the vaccination. In Israel, that mandating led persons to file a complaint with the International Criminal Court on the grounds that it is a war crime under the 1949 Geneva Convention to perform medical experiments without informed consent, and the Covid vaccines are experimental, having skipped the usual trials. By contrast, several state legislatures, such as Florida and Alabama, enacted laws to forbid businesses to limit their services to “only the vaccinated.”
In regard to surveillance, Rep Rush’s bill in the House (HR 6666) for “contact tracing” did not get reported out of committee, but many schools, buses, and other providers of service did ask citizens to register their name and phone number for purposes of tracing their contacts. Also, many businesses now ask people to indicate their vaccination status. Currently in appellant’s city, Concord New Hampshire, the mask-wearing order has been lifted but only for the fully vaccinated. A Texas court has ruled against employees of Methodist Hospital who claimed that the threatened loss of their jobs, if they did not get vaccinated is coercive. Judge Lynn ruled that is not coercive as they can get employment elsewhere. By contrast, schools in Miami have decided that vaccinated people cannot come to school based on the newly discovered fact that a vaccinated person can “shed” spike proteins on the unvaccinated, causing harm.
Summary of the Argument
Appellant argues that the District Court erred in saying that “Maxwell … has failed to allege an actual or imminent injury in fact that confers her with Article III standing to sue.” The District Court has pitched its jurisdiction on the basis of a 2012 First Circuit case, Katz v Pershing, that in turn is based on Baker v Carr (1963) and Lujan v Defenders of Wildlife (1992). These hold that it Is not enough for an injury to be hypothetical. Appellant rejects those 1963-2012 precedents, saying that they do not control her case. Although in some sense her injury is hypothetical, given that no member of government is coming at her forcefully with a vaccine, it would not be reasonable for her to have to wait until that scene eventuates, as she would then have no practicable way to seek a judicial ruling. The Katz v Pershing requirement is a Catch-22.
Also, Appellant claims that, in part, her injury is already happening. She is fast losing her Fourth Amendment rights, along with all 330 million Americans who are losing many of their constitutional rights. Appellant has lived in four countries besides the US and is sharply aware that her security is a consequence of the existence of the US Constitution, which she takes to be a covenant among all Americans to stand up for one another, regarding the allocation of powers, and the Bill of Rights. The typical speaker on behalf of endangered rights is the Judiciary. Its voice is needed now, as the public conversation is more and more dominated by a media whose loyalties lie with various interests, not specifically the interest of the people.
In 1803, Chief Justice John Marshall wrote, in Marbury v Madison, “The very essence of liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.”
The ruling in Jacobson v Massachusetts (1905) is often cited as the precedent on vaccination mandates. Now 116 years old, that ruling is out of date and needs to be overturned. Much has happened in science to cast doubt on both the efficacy of vaccines and the notion that the unvaccinated person can harm the vaccinated. While it is true that Jacobson was about states’ rights, it is widely misinterpreted to mean that the Fourth Amendment must bend to a public health emergency. The more appropriate ruling is that of Home Builders v Blaisdell (1931) in which the Court said: “Emergency does not create power. Emergency does not increase granted power…. The Constitution was adopted in a period of grave emergency. Its grants of power … were not altered by emergency.”
Certainly it was the very invoking of an “Emergency” due to Covid (in the wake of the World Health Organization’s declaring of a health emergency) that has flavored all actions by state, local, and federal government, in the period since March 2020. The vast majority of US citizens are under the mistaken impression that (1) the federal government is within its rights to judge health matters, and (2) that it is constitutional for a president to hold the Bill of Rights in abeyance while an emergency is occurring.
Still, the Jacobson ruling (which affirmed Massachusetts right to use its police power for health reasons) says: “Before closing this opinion we deem it appropriate … to observe … that the police power of a state, whether exercised directly by the legislature, or by a local body acting under its authority, may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression.” Mr Jacobson had been fined $5 for not accepting a vaccination. The US Supreme Court said that he did have to pay the fine. He had not been threatened with forcible vaccination by the state. Perhaps if he had been, the ruling would have said “this is too oppressive.” Today there is no precedent available for instances in which a government holds a person down to force a vaccination on him. Maxwell v Secretary of Defense could become that precedent.
There is also the harm of losing Fourth Amendment rights regarding privacy by way of a new kind of surveillance that the Framers could not have imagined. The potential for use of a vaccine passport, inserted under the skin, is very real. As Plaintiff stated in her pleadings, Bill Gates is working with MIT to develop a Microneedle Delivery System, a luminescent hand tattoo. The quantum dots could store data and be updated by transmission of new information -- such as one’s bank balance. It is a step in the direction of total surveillance. Cameras are everywhere now, and conversations get automatically recorded. In a dissenting opinion in Laird v Tatum (1972), Justice William Douglas, joined by Justice Thurgood Marshall said:
“This case involves a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, … is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. …The aim was to allow men to be free and independent and to assert their rights against government.”
It is essential for the court to state what the law is. In fact, in a culture that is today drowning in lies, judicial statements have the power of assertion of truth, a huge gift to society. Chief Justice John Marshall of the US Supreme Court wrote in Marbury v Madison, in 1803: “That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, … they are designed to be permanent….… To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained …?
“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void…. This theory is … one of the fundamental principles of our society….
“… It is emphatically the province and duty of the judicial department to say what the law is…. We must never forget that it is a constitution we are expounding … intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.… [I]t is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts…. Why otherwise does it direct the judges to take an oath to support it?… How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!”
Conclusion of the Argument
The District Court erred in dismissing this case on grounds of Baker v Carr and Lujan v Defenders of Wildlife. Appellant argues that such are the times today that silence by the courts contributes positively to harm. As Justice Clarence Thomas recently wrote, in a dissent joined by Samuel Alito and Neil Gorsuch, about a 2020 presidential election case, Republican Party of Pennsylvania v. Degraffenreid (2021): “One wonders what the Court waits for. We failed to settle this dispute before the election, and thus provide clear rules. Now we again fail to provide clear rules for future elections…. By doing nothing, we invite further confusion …. Our fellow citizens deserve better and expect more of us.”
The Appellate court can overturn the dismissal. The District Court can easily rule, despite the precedents of Baker and Lujan, that the defendants must not mandate a Covid vaccination for Appellant. This would not entail judicial activism or writing new law. It would not even entail any nuanced interpretation of the Constitution. The Fourth Amendment says it plainly: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….”
The above also covers the requirement of redressability. The District Court judge of the US District of New Hampshire said that Appellant must plead for a solution that would redress the problem. An injunction, which also acts as declaratory relief, would give the redress sought.
Particulars about Covid and the Vaccine
In her 2020 pleadings, Plaintiff Maxwell offered eight grounds on which a citizen may question the push for a Covid vaccination. Some sound felonious; this strengthens her resolve to avoid taking the vaccination:
(1) that the testing for Covid is unreliable,
(2) that Covid cases aren’t being accurately reported,
(3) that the purpose of the Lockdown is apparently not for health but to terminate
(4) that the emergency vaccines have evaded standard safety testing,
(5) that there is a little-understood connection between vaccination and DNA,
(6) that successful cures for Covid, such as Ivermectin, are withheld, casting doubt
on the sincerity of the race for a Covid vaccine,
(7) that a vaccine tattoo may be used as a ‘passport,’ and
(8) that scientific debate is being forbidden by censors.
Numbers 1-3 are now history. Numbers 4-8 are described here and via the Exhibits:
#4. FDA’s “approval” was not approval, only “emergency use authorization” with no testing.
#5. Manufacturers now acknowledge that the “vaccines” are gene-therapy, not vaccines.
#6. Prosecution is being sought in India for the government actions that prevented doctors from using the cures that had been successful even I 2020 for Covid.
#7. More and more businesses, including airlines and restaurants, have started to demand presentation of a vaccine passport.
#8. the forbidding of scientific debate is a historic break from the norms of Western society in which the whole way of finding truth in Nature depends on hypotheses and critiques.
Mary Maxwell, Pro Se
175 Loudon Rd, Concord NH 03301
Telephone 603 848 3060
Email address: MaxwellMaryLLB@gmail.com
Publications critical of the Covid vaccine, exhibited here to demonstrate the broad context in which Maxwell v Department of Defense is placed.
Exhibit A. “Inventor of Covid MRNA Vaccine Platform [Dr Robert Malone] Says FDA was aware of Dangers, Blames Lack of Long-Term Animal Trials.” Published at coronanews123.wordpress. com
Exhibit B. Physicians in Canada object to Ontario licensing board forbidding them to question or debate the official measures recommended for Covid. Published at CanadianPhysicians.org
Exhibit C. “Dr Michael Leadon, former Chief Science Officer and VP for Pfizer, Dr. Mike Yeadon [says] ‘Your government is lying to you in a way that could lead to your death’.” Published at LifesiteNews.com April 7, 2021
Exhibit D. “The Indian Bar Association Sued WHO Scientist over Ivermectin” by Justus R Hope, MD. Published at The Desert Review .com, June 7, 2021, updated June 10, 2021
Exhibit E. Questions in the Australian Federal Parliament about Covid and Vaccines. At Hansard, 1 June 2021 and 5 February 2021, at aph.gov.au
Exhibit F. Maxims Pertinent to This Case. General Principles of Law (Selected from the Law Dictionary, 1888 -- Wesley Gilmer’s 1986 revision of Wm. Cochran Cox’s 1976 edition)
EXHIBIT A.” INVENTOR OF COVID MRNA VACCINE PLATFORM [DR ROBERT MALONE] SAYS FDA WAS AWARE OF DANGERS, BLAMES LACK OF LONG-TERM ANIMAL TRIALS “
Directly contradicting Dr. Fauci’s, the FDA’s, and the media and medical establishment’s relentless campaign to inject as many Americans as possible with what are, at least until the end of 2022, officially experimental drugs, the inventor of the mRNA core technology has sounded the alarm …. Dr. Malone addressed a recent Japanese study which shows that the mRNA shot does not work in the manner intended. All new drugs have typically undergone three to six years of animal trials. Introducing the topic, Dr. Bret Weinstein said
“So I must say that this is a difficult topic for us to address. We all, I believe, are agreed that something very serious is afoot and the public is largely unaware that they have been placed into a kind of danger. And we also know that there’s a great deal of stigma directed at those who would explore these dangers. … They did not believe the spike was biologically active…. Now know the spike protein is very dangerous there. It is violent. …But if it did what the brochure on these vaccines says it should do, which is large in the membrane of the cells that are doing the transcribing, it would be a lot less destructive, right?”
Dr. Malone:“I think that’s fair. And you’re right. It’s not just the literature that the documentation about the vaccine. It’s the prior literature that was put out by the people that developed it that developed these clones. So they were they were aware that there was a risk of Spike being biologically active in having adverse events if it did not stay stuck to the cells that were transected, that got the RNA and made it OK. And and they used a genetic engineering method of putting a trans membrane domain on it to ensure that it stayed anchored and stayed put. And there they did limited, non-clinical studies to say looks like it stays stuck. We engineered it to stay stuck. They did. And and they published it. Here’s the thing…Is that that’s generally not good enough in a non-clinical data package…”
EXHIBIT B. “Declaration of Canadian Physicians for Science and Truth,” -- Objection to Ontario Licensing Board Advice of April 30, 2021. From Canadian Physicians.org
We are a broad and diverse group of Canadian physicians from across Canada who are sending out this urgent declaration to the Colleges of Physicians and Surgeons. On April 30, 2021, Ontario’s physician licensing body, …issued a statement forbidding physicians from questioning or debating any or all of the official measures imposed in response to COVID-19. As physicians, our primary duty of care is not to the CPSO … but to our patients.
1. Denial of the Scientific Method itself: The CPSO is ordering physicians to put aside the scientific method and to not debate the processes and conclusions of science. We physicians know and continue to believe that throughout history, opposing views, vigorous debate and openness to new ideas have been the bedrock of scientific progress. Any major advance in science has been arrived at by practitioners vigorously questioning “official” narratives and following a different path in the pursuit of truth…. We also give notice to other Canadian and international licensing authorities for physicians and allied professions that the stifling of scientific inquiry and any order to violate our conscience and professional pledge to our patients, itself may constitute a crime against humanity.
College of Physicians and Surgeons of Ontario Statement on Public Health Misinform-ation (4/30/21): “The College is aware and concerned about the increase of misinformation circulating on social media and other platforms regarding physicians who are publicly contradicting public health orders and recommendations. Physicians hold a unique position of trust with the public and have a professional responsibility to not communicate anti-vaccine, anti-masking, anti-distancing and anti-lockdown statements and/or promoting unsupported, unproven treatments for COVID-19. Physicians must not make comments or provide advice that encourages the public to act contrary to public health orders and recommendations. Physicians who put the public at risk may face an investigation by the CPSO and disciplinary action, when warranted.”
Exhibit C. – Former Pfizer VP: “Your government is lying to you in a way that could lead to your death.” Exclusive Interview at LifesiteNews.com April 7, 2021
Dr. Michael Yeadon, Pfizer's former Vice President and Chief Scientist for Allergy & Respiratory who spent 32 years in the industry leading new medicines research and retired from the pharmaceutical giant with “the most senior research position” in his field, spoke with LifeSiteNews in a telephone interview. He said:
“But in the last year I have realized that my government and its advisers are lying in the faces of the British people about everything to do with this coronavirus. Absolutely every-thing. It’s a fallacy this idea of asymptomatic transmission and that you don’t have symp-toms, but you are a source of a virus. That lockdowns work, that masks have a protective value obviously for you or someone else, and that variants are scary things and we even need to close international borders in case some of these nasty foreign variants get in.
“Or, by the way, on top of the current list of gene-based vaccines that we have miraculously made, there will be some ‘top-up’ vaccines to cope with the immune escape variants.
“But what I would like to do is talk about immune escape…. Last year I thought it was what I called ‘convergent opportunism,’ that is a bunch of different stakeholder groups have managed to pounce on a world in chaos to push us in a particular direction. So it looked like it was kind of linked, but I was prepared to say it was just convergence. I [now] think that’s naïve. There is no question in my mind that very significant powerbrokers around the world have either planned to take advantage of the next pandemic or created the pandemic. One of those two things is true because the reason it must be true is that dozens and dozens of governments are all saying the same lies and doing the same inefficacious things that demonstrably cost lives.
“And they are talking the same sort of future script which is, ‘We don’t want you to move around because of these pesky varmints, these “variants”’— which I call ‘samiants’ by the way, because they are pretty much the same — but they’re all saying this and they are all saying ‘don’t worry, there will be “top-up” vaccines that will cope with the potential escapees.’ They’re all saying this when it is obviously nonsense.”
“I think the end game is going to be, ‘everyone receives a vaccine’… Everyone on the planet is going to find themselves persuaded, cajoled, not quite mandated, hemmed-in to take a jab. When they do that every single individual on the planet will have a name, or unique digital ID and a health status flag which will be ‘vaccinated,’ or not … and whoever possesses that, sort of single database, operable centrally, applicable everywhere to control, to provide as it were, a privilege, you can either cross this particular threshold or conduct this particular transaction or not depending on [what] the controllers of that one human population database decide. And I think that’s what this is all about because once you’ve got that, we become playthings and the world can be as the controllers of that database want it.
“For example, you might find that after a banking reset that you can only spend through using an app that actually feeds off this [database], your ID, your name, [and] your health status flag.”
“And, yes, certainly crossing an international border is the most obvious use for these vaccine passports, as they are called, but I’ve heard talk of them already that they could be necessary for you to get into public spaces, enclosed public spaces. I expect that if they wanted to, you would not be able to leave your house in the future without the appropriate privilege on your app.
“And since I can’t think of a benign explanation for any of the steps: variants, top-up vaccines, no regulatory studies… it’s not only that I cannot think of a benign explanation, the steps described, and the scenario described, and the necessary sort of resolution to this false problem is going to allow what I just described: unknown, and unnecessary gene sequences injected into the arms of potentially billions of people for no reason….”
Exhibit D. “The Indian Bar Association Sued WHO Scientist over Ivermectin” by Justus R Hope, MD. Published at The Desert Review .com, June 7, 2021, updated June 10, 2021
The Indian Bar Association (IBA) sued WHO Chief Scientist Dr. Soumya Swaminathan on May 25, accusing her in a 71-point brief of causing the deaths of Indian citizens by misleading them about Ivermectin. Point 56 states, “That your misleading tweet on May 10, 2021, against the use of Ivermectin had the effect of the State of Tamil Nadu withdrawing Ivermectin from the protocol on May 11, 2021, just a day after the Tamil Nadu government had indicated the same for the treatment of COVID-19 patients.”
Advocate Dipali Ojha, lead attorney for the Indian Bar Association, threatened criminal prosecution against Dr. Swaminathan “for each death” caused by her acts of commission and omission. The brief accused Swaminathan of misconduct by using her position as a health authority to further the agenda of special interests to maintain an EUA for the lucrative vaccine industry.
Specific charges included the running of a disinformation campaign against Ivermectin and issuing statements in social and mainstream media to wrongfully influence the public against the use of Ivermectin despite the existence of large amounts of clinical data showing its profound effectiveness in both prevention and treatment of COVID-19….
The brief cited US Attorney Ralph C. Lorigo’s hospital cases in New York where court orders were required for dying COVID patients to receive the Ivermectin. In multiple instances of such comatose patients, following the court-ordered Ivermectin, the patients recovered
Advocate Ojha accused the WHO and Dr. Swaminathan in Points 60 and 61…:.
“The world is gradually waking up to your absurd, arbitrary and fallacious approach in presenting concocted facts as ‘scientific approach.’ While the WHO flaunts itself like a ‘know it all,’ it is akin to the vain Emperor in new clothes while the entire world has realized by now, the Emperor has no clothes at all.”
The brief accused the WHO of being complicit in a vast disinformation campaign. Point 61 states, “The FLCCC and the BIRD have shown exemplary courage in building a formidable force to tackle the challenge of disinformation, resistance, and rebuke from pharma lobbies and powerful health interests like WHO, NIH, CDC, and regulators like the US FDA.”
Dr. Swaminathan was called out for her malfeasance in discrediting Ivermectin to preserve the EUA for the vaccine and pharmaceutical industry. Point 52 reads, “It seems you have deliberately opted for deaths of people to achieve your ulterior goals, and this is sufficient grounds for criminal prosecution against you.”
"The Indian Bar Association has warned action under section 302 etc. of the Indian Penal Code against Dr. Soumya Swaminathan and others, for murder of each person dying due to obstruction in treatment of COVID-19 patient effectively by Ivermectin. Punishment under section 302 of the Indian Penal Code is death penalty or life imprisonment."
He further wrote, "After receiving the said notice, Dr. Soumya Swaminathan went on the back foot and deleted her tweet. … By deleting the tweet, Dr. Soumya Swaminathan has proved her mala fide intentions." The Indian Bar Association dared to initiate a landmark court case against a Public Health Authority (PHA) to call out corruption and to save lives.
As the courts in the United States proved to be the life-saving force to ensure a patient’s right to receive Ivermectin, a court in India is now doing the same. . Perhaps this pathway will ultimately break the disinformation and censorship stranglehold around repurposed drug use to save lives. Maybe we will witness other countries following India’s example, both in medicine and in law.
Exhibit E. Questions in the Australian Federal Parliament about Covid and Vaccines. Published in Hansard, 1 June 2021 and 5 February 2021, at aph.gov.au
[At a parliamentary hearing on 5 February 2021 the following question was put by Tony Zappia, MP, Labor Party, of Makin South Australia. The person answering is Adjunct Professor John Skerritt, Deputy Secretary, Health Products Regulation.]:
Q. Once you get vaccinated, will you have to be vaccinated in, say, 12 months time?
Dr Skerritt: If you know the answer to that, could you tell us! That’s the $64 billion question. And that, of course, is one of the primary questions that people following this epidemic are asking. We hope not. There are two possibilities: either the current vaccines don’t provide long-term protection per se, or there is antigenic or virus strain drift. It’ll possibly be a combination of both. So it may well be you’ll have to have Pfizer mark II in 12 months time because the virus, whether it’s the South Africa, Brazil or UK strain, will have changed enough that you’ll need a more efficacious boost in 12 months time. Or it could just be the inherent characteristics of a vaccine for a disease that you need to be boosted in 12 months time….”
[The following questions were put by Senator Malcolm Roberts and answered by Mr Edwards]:
Q. The vaccine only has provisional approval. Is it true that provisional approval is only possible where there are no approved pharmaceutical treatments available?
A. The provisional approval is possible where there is not a similar treatment available in that, for that group of patients. And so, if there’d been an approved vaccine, but say it had been on the market for several years, fully approved, then it wouldn’t have been possible to provisionally approve a vaccine, but at the time of the submissions of those vaccines, and indeed we have provisionally designated the Novavax vaccine as well and the Johnson & Johnson or Janssen vaccine, it is possible to provisionally designate and potentially provisionally approve those vaccines.
Q. How long before we know the intergenerational effects?
A. There’s no evidence at all from animal or human studies that the RNA vaccines, if you’re talking about them, incorporate into the genetic material of human beings. They wouldn’t have been approved for regulatory approval and that includes by much bigger regulators such as the FDA, if these bits of mRNA incorporated into the human genetic material. In fact, medicines that incorporate into human genetic material and are inherited are currently not permitted in most major countries, including Australia.
Thank you. How many times and how often would each of us need to be injected for the vaccine to be effective and for each time, for how long does the effect last?
A. … I think it’s very important that Australia knows that this is the start of our vaccine programme. It will almost certainly not be the end. There will be a need for boosters into the future particularly in relation to the variants of concern of which there are four now that have been designated by the World Health Organisation. …How long the two dose effect works is still, we don’t know. We know it’s at least six months because that’s the studies of, been looking at it for six months. It’s almost certainly longer than that for the original strain, but the variance of concern adds another complexity to it.
[The following question was put by Fiona Matin, PhD, MP, and answered by Dr Murphy]:
Q. The immunisation schedule for children up to four years is not necessarily consistent between states…. I’m wondering about the psychology … that having such transparency and information about associated risks will actually increase uptake of the vaccine….
A. We love psychology. We are spending well over $23 million, I think, on a comms campaign, which is in three phases. The first phase is to get people confident about the registration process. They feature gentlemen in white coats and other people to assure people that our registration processes are as rigorous as anywhere in the world.
[The following question was put by Mr Tony Zappia, MP and answered by Dr Skerritt]:
Q. Have there been any concerns raised, in respect to pregnancy and the vaccine?
A. Dr Skerritt: Again, it’s more a lack of data rather than any evidence of miscarriages and the like. … Some clinical groups are recommending that, if you’re not in a high-risk or high-exposure group and if you’re pregnant, you hold off until you have the kid. However, there are the examples of the US and the UK, where you’ve got a number of pregnant healthcare workers and both systems are under such strain. If you took every pregnant doctor and nurse out of the UK at the moment and told them to stay at home for nine months, you’d put the system even under more stress. …There hasn’t been any evidence—and I’ll check with Dr Cook that my statement is correct—of ill effects in pregnancy. It was more that, in clinical trials, it’s normal to exclude pregnant people.
[The following question was put by Mike Freelander, MD, MP and answered by Dr Murphy and Dr Skerritt]:
Q. …We’ve committed to helping our Pacific neighbours. When are we going to start rolling out vaccines to them, and will it predominantly be the AstraZeneca?
A. Dr Murphy: Obviously, AstraZeneca and then, later, Novavax, are the likely ones. DFAT have invested over half a billion dollars in a vaccine for the Pacific and they’re doing some advance planning with the Pacific countries at the moment….
Dr Skerritt … If you have two women in a village who miscarry two days after having the vaccine, you could lose whole villages and potentially half a country out of a vaccination system. We saw that in Samoa with the measles vaccine recently. In South-East Asia, the nature of our assistance will be different. They don’t need us to build a vaccine safety system for them, but, for example, the Indonesians have never seen a messenger RNA vaccine before, and they want high-level technical, scientific help with those vaccines. …
…the government, through DFAT, is also funding procurement that will essentially cover the full population of East Timor, Papua New Guinea and all the Pacific islands, and will cover a percentage of the population—and that percentage is a lower percentage targeted at vulnerable groups—in countries like Indonesia, Vietnam, Cambodia, Laos, Myanmar, we hope, and the Philippines.
Exhibit F. Maxims Pertinent to This Case. General Principles of Law (Selected from the Law Dictionary, 1888 -- Wesley Gilmer’s 1986 revision of Wm. Cochran Cox’s 1976 edition)
The niceties of the law are not the law. Apices juris non sunt jura.
It is the duty of a good judge to enlarge his jurisdiction, i.e., to amplify the remedies of the law. Boni judicis est ampliare jurisdictionem.
He who has authority to do the more important ought not to be prohibited from doing that which is less important. Cui licet quod majus non debet quod minus est non licere.
Let justice be done, though the heavens should fall. Fiat justitia, ruat coelum.
We should judge by the laws, not precedents. Judicandum est legibus, non exemplis.
Law is the dictate of reason. Lex semper dabit remedium.
Law is a rule of right. Lex est norma recti.
The law will always furnish a remedy. Lex semper dabit remedium.
An evil custom should be abolished. Malus usus est abolendus.
Wretched is the slavery where the law is changeable or uncertain. Misera est servitus ubi jus est vagum aut incertum.
Odious and dishonest things are not to be presumed in law. Odiosa et in honesta non sunt in lege praesumenda.
The reason of the law is the life of the law. Ratio legis est anima legis.
Where there are many counselors there is safety. Salus ubi multi consiliarii.
3. Maxwell v Trump
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
MARY MAXWELL, Plaintiff-Appellant
DONALD J TRUMP, President of the United States, Defendant-Appellee
On Appeal from the United States District Court of New Hampshire
Re: Maxwell v President of the United States Civil action 1:17-cv-00628-JL
US District Court, District of New Hampshire December 11, 2017
I hereby submit my objections to Magistrate Judge Andrea Johnstone’s recommendation to Chief Judge Joseph N Laplante that my case be dismissed.
Justiciability and Jurisdiction of My Case
My filing meets the US Constitution’s requirement regarding “cases or controversies” as I am dealing with a major controversy. Could anything be more major than a president usurping the Congress’s grant of the power to make war?
The fact that the courts have developed doctrines, namely, standing, ripeness, mootness, and the political question, is not enough to obviate the Framers’ intent. The Third Branch is tasked with entering into this dispute. Nothing in the Constitution bars them.
Here I ignore “ripeness and mootness” and be concerned only with doctrines on which the Magistrate Judge recommends dismissal of my case: the political question and standing.
The Political Question
It is reasonable to hold that the two political branches, the Legislature and the Executive, have sole responsibility for making domestic law and policy and foreign policy. But the Judiciary always plays a role in “sorting out” — when needed – different parts of the Constitution. The US Supreme Court’s greatest moments occur when doing just that.
The Constitution’s balance of powers is a massive force for “domestic tranquillity.” In Hamdi, Rasul, Hamdan, and Boumediene, SCOTUS did the needful to curb the presidents’ claims to a newly concocted, unconstitutional “plenary power,” in foreign affairs.
If the two political branches are erring, who is available stop them? Congress can stop a president from erring by impeaching him, or just by threatening to do so. Of course that’s an event to be avoided if possible, as it would “shake up the population” and maybe weaken us internationally. Better the court should apply the needed discipline simply by a ruling.
In my case, the judge would only have to say: “President Trump is hereby ordered to obtain Congress’s authorization before waging war, and to obtain Congressional approval for the policy of pre-emptive nuclear strikes.”
For all we know, the current president and many current legislators may be strongly wishing the Judiciary would say precisely that. A sad fact of life today is that none of us really knows who may be pressuring the president or Congressmen. Let the people shield them!
We can’t rest on textbook descriptions of our democracy, which say that politicians answer mainly to their constituents. I don’t know anyone who thinks that. But who should force reality to conform to that textbook definition — to make representatives answerable to the people? We citizens, and any officers of government, should do it. We can use the ballot box, plus education and communication, to correct the behaviour of the Legislature.
But some Congresspersons want to prevent that! For example, they passed a law, as part of the 2012 National Defense Authorization Act, that deleted the prohibition of spending federal money to propagandize the American public. It’s legal now to use any psychological skills of the propagandist to dis-educate folks about a particular political candidate or about the meanings in the Constitution’s text. Hence we are turning to the courts for help.
Was There a Gradual Change in the Law?
I belong to the Federalist Society and participate in their Teleforums. Recently a speaker (a professor) said that it’s not clear who has the task of deciding on war. I said “Yes, it is very clear, in Article I, section 8.” He said “There is no jurisprudence.” I said “Yes, there was jurisprudence, up to the Steel Mills case in 1952, saying it is Congress’s job.”
The speaker then said that there hasn’t been any jurisprudence since that ruling. I don’t know if he is technically correct. There were 22 cases filed between 1952 and 2006 when I researched this in 2006. Probably I missed some, and since 2006 there have been others.
All were dismissed. None was appealed to the Supreme Court, very few even went beyond the district court. So is the professor correct to say “There has been no jurisprudence”? I am inclined to think that the dismissals are a kind of ruling. Every one of them said, in effect, “We will not enter into this matter. We choose not to enforce Article I, section 8.”
Sixty-five years have passed – two generations — since the steel mills case (Youngstown v Sawyer). During that period, as all the world knows, the United States has engaged in many military operations, usually without Congress’s nod, i.e., the people’s nod.
An exception is the fact that in 2001 Congress passed the AUMF – Authorization for the Use of Military Force. The Act was passed on September 14, 2001, that is, 72 hours after the World Trade Center was attacked and when Americans were told that Afghanistan was the attacker (or more specifically that Afghanistan was harbouring the mastermind, Bin Laden, a Saudi national). We all panicked. Who could think straight?
In any case, since the professor at the Teleforum thinks there’s been no jurisprudence – and he takes that to mean there has been a gradual acceptance of a presidential prerogative for war-making — I must deduce that the Judiciary has acted pro-Executive branch!
The judicial branch by its silence, when asked 22 or more times to make a ruling on Article I, section 8, has created the “acceptance” to which the professor referred. Twenty-two rulings of “We won’t rule” must surely convey something. I don’t think it conveys that 22 Mary Maxwell types brought non-justiciable cases.
The wars involved in the 22 cases were in Vietnam, Cambodia, El Salvador, Nicaragua, Grenada, Persian Gulf, Iraq, Kosovo, Iran/Syria. Some of these, such as Grenada, caused no American deaths, but most did. The Vietnam toll was 55,000 US soldiers.
I will now show that although all the cases get denied on grounds of justiciability, there are still valuable opinions from judges saying that such problems are justiciable. (I mean in addition to the authority of Youngstown v Sawyer, which is still the precedent.) I will mention Doe v Bush (2003) and Massachusetts v Laird (1971).
Doe v Bush (2003)
One case made it to the 1st Circuit appellate court for our region. It was dismissed for lack of ripeness. The complaint, by soldiers and parents of soldiers, was that the imminent invasion of Iraq by the US would be a violation of Article I, section 8 of the Constitution. The appellate judges said:
“Entrusting such decision making power to the president in the context of the present case – where the president is asserting determination to use that power in an unprecedented fashion, for offensive war of an extraordinary kind – would profoundly alter the constitutional structure. The disastrous consequences cannot be overstated. Liberty is always at stake when one or more of the branches seek to transgress the separation of powers. (Clinton, supra, Kennedy, J., concurring, at 450). Never could liberty be more threatened than when the president, or Congress, or both together would alter the separation governing the most momentous and dangerous of the Constitutional powers.” [Emphasis added]
Even though they said all that, they upheld the dismissal. They ruled on March 13, 2003 that the case was not yet ripe. Five days later President Bush ordered the invasion of Iraq.
Massachusetts v Laird (1971)
One case “made it to the US Supreme Court,” Commonwealth of Massachusetts v Laird(1971) — but that is because when a state is the plaintiff, the Supreme Court has original jurisdiction. So, just as my humble case is under threat of dismissal, so did the Commonwealth of Massachusetts get a dismissal (on the basis of justiciability). However, Justice Douglas wrote a dissent, in which Justice Harlan concurred. It said:
“we have never ruled, I believe, that when the federal government takes a person by the neck and submits him to punishment… the complaining person may not be heard in court. The rationale in cases such as the present is that government cannot take life, liberty, or property of the individual and escape adjudication by the courts of the legality of its action… Today we deny a hearing to a state which attempts to determine whether it is constitutional to require its citizens to fight in a foreign war absent a congressional declaration of war…. The question of constitutional war is neither academic nor political… it should be settled here and now.” [Emphasis added]
In sum, I disagree that my case should be dismissed on the political question doctrine.
The doctrine of “standing” is long overdue for repair. Who’all is a court made up of? I say it is made up of society. In small societies that have a village chief, people gather to hear two “litigants” state their arguments. It will be obvious who “wins,” as the people gathered around will create a ruling of some sort. The chief will but enunciate it.
Since 1787 we have lived in a large society where the presence of the public is not feasible in that way. But no matter — we have centuries of English law, and then American law, to stand in, as it were, for the people. The court today is the people; the court is, also, the law.
Do I mean that the people and the law are the same thing? Yes, more or less. The law contains our values. It stands for how our society apportions power. Then we set up various governmental structures to apply the law. It would be ridiculous to say that the people do not have “standing” to question the law. They own it. No one else owns it.
I hope the day is not coming in my lifetime when people have to “take the law into their own hands” — although they should, if there be no one else willing to do it, such as police.
Magistrate Judge Johnstone has recommended that I do not have standing. The soldiers in Doe v Bush were granted standing – but it would be better for soldiers if the challenge is made not by them but by a citizen. It must be extremely awkward for troops to challenge the president, as it goes against the grain of patriotism. It could even cause a mutiny.
In recommending that my case be dismissed, the Magistrate Judge has pointed to the 2002 decision in Mahorner v Bush (at the District of Columbia District Court) that “plaintiff’s allegation that [plaintiff] will suffer an increased chance of losing his life if [the President] initiates a military conflict … amounts to nothing more than speculation.”
I suppose any prediction of anything – that it will rain next month – can be called “nothing more than speculation.” True, I don’t know for sure that President Trump intends to do war. He did do war in April of this year by striking Syria, so it is not at all far-fetched to say he’ll do it again. He has often talked about striking North Korea, even with nuclear weapons. “The public” now believes (correctly or incorrectly) that we will go to war soon.
I do not ask that President Trump be prevented from making war, or from using a pre-empt-ive nuclear strike. I only asked that Article I, section 8 of the Constitution be adhered to.
(Speaking personally, I think it would be good to have a pre-emptive strike policy.)
My claim that I may be injured is not a “speculation of the future.” I am injured right now by the anxiety created by President Trump’s threats. In the 1950s when I was growing up, “atomic war” was widely held to be the greatest worry of the American people. It colored everything; it dictated policy. It is not silly to worry about it today.
I grieve over the possibility that our magnificent biosphere could be ruined by radiation. We have already caused ‘untold’ damage by using depleted uranium in the Middle East. Our president should not have to shoulder the huge responsibility of making up his mind as to whether the people want him to use “nukes.” Their representatives in Congress must set that policy. Failing that, a stroke of a judge’s pen could set things right.
Constitutional Protection of the Balance of Powers
My pleadings said, in Section V. Request for Relief:
“Plaintiff asks the court to enjoin President Trump from making war without Congress’s say-so. Plaintiff claims she is entitled to this relief in that she will likely suffer injury related to war. She is also entitled to live in the safety that the Constitution provides by way of its balance of powers.” [Emphasis added]
I lived in great peace from 1947 to 1980 (at which point I moved overseas, for marriage). It was so wonderfully reassuring to know that we had a Constitution and loads of citizens eager to protect it. How I pitied countries that did not have such a marvellous invention!
I am now back in the US and I can barely find that Constitution. All of the rights in the Ten Amendments are being eroded. Sometimes they are eroded by the US Supreme Court, as in the Albert Florence strip-search case. It also may be that new generations don’t even know about the Constitution, so can hardly be on duty to support it.
As argued above, the reluctance of the Court to adjudicate key cases and controversies is terrible. It is blatantly political. We want the court to be the protector of the Constitution. I have a PhD in Political Science; I see all the power moves involved. Accumulations of power harm society. We need the court to act firmly on the side of law, not power. (Note: although I asked for injunctive relief, the court could give declaratory relief.)
Captain Nathan Smith
My claim of injury is somewhat like that of Army Captain Nathan Smith who in 2016 filed a case, Smith v Obama, that has now been changed to Smith v Trump. While on duty in Kuwait he was bothered by the fact that he’d taken an oath to protect the Constitution, yet was participating in an illegal war. He wants the Judiciary to sort that out. The DC District Court has so far dismissed him on the political question and, amazingly, on standing.
In 1973 Congress passed the War Powers Act in response to the Vietnam War. The Act allows a president to engage in war for 60 days. If by the end of 60 days, he has not obtained Congress’s say-so, he must pull out of the war action within 30 additional days.
As Professor Louis Fisher, author of Supreme Court Expansion of Presidential Power: Uncon-stitutional Leanings (2017) notes, the War Powers Act was breached by President Obama when he stayed in Libya for more than 60 days, did not seek Congress’s approval, and then continued to stay past 90 days, indeed for months, offering no legal justification for this.
So Libya was an illegal war on the face of it. Captain Smith could have been caught in it. The war he was actually in is the one against ISIS, which is illegal for the same reason.
Besides dismissing Smith on the political question, the district court said he lacks standing – as, unlike the soldiers in Doe v Bush, or the draftees in Massachusetts v Laird, he went to war voluntarily. (Indeed he vigorously opposes ISIS.) Smith v Trump is now in appeals.
Nuclear War and the 21st Century
Sixty-five years on from the Steel Mills case, a lot has changed in the world. Most nations, including the US, have yielded more of their sovereignty than was expected. Citizens often don’t know who the boss is, who is making decisions, or what “they” have in store for us.
Do we know what guides President Trump? His personal background is in business, and many of his Cabinet picks are CEO’s of the largest corporations. We’re not looking at Thomas Jefferson here. But is there a citizenry that can carry the legacy of the Republic forward? Yes. The 22 persons who brought civil actions are among those who care.
The military industrial complex is hugely powerful. The campus known as “the Pentagon” is now occupied mainly by members of the defense industry, not military officers. What are their motivations? What is their “foreign policy”? Do they wish for nuclear war?
The ability of other nations to strike us is overwhelming. In such an environment it is particularly harmful for the courts to abandon their custody of the Constitution. I’d go so far as to say that the Constitution is our most solid weapon against “the enemy.”
If all Americans, including, especially, members of government, would stick by the parchment, they would be sticking by each other – no small thing in this scary world.
Unless these old eyes deceive me, the eroding of the Constitution is part of a well-planned attack on the United States. “World government” may be behind it, but it looks American-based to me. Who would do that? Frankly, I think whacko’s do it. Some say the powerful are committing sins for selfish benefit. I disagree. They are just whacko.
If we have gone off the track from a good path that we were on, we can now go back and reclaim it. The courts are perfectly placed to assist the nation in this endeavour. There is a well-established maxim: Lex semper dabit remedium — The law will always furnish a remedy. And: Boni judicis est ampliare jurisdictionem — A good judge enlarges his jurisdiction.
In the Great Republic, access to adjudication in life-or-death matters can’t be blocked by “doctrines,” such as standing, political question, or non-concrete injury.
“A republic, Madam, if you can keep it.”
Respectfully submitted, pro se
Mary Maxwell, 177 Loudon Rd, Apt 203,
Concord, NH 023301.