Thank you for reading and sharing Bailiwick News by email and social media. To support Bailiwick with a paid subscription: Orientation for new readers; American Domestic Bioterrorism Program; Tools for dismantling kill box anti-law As reported at Bailiwick Sept. 7, 2024, Sasha Latypova and I have been corresponding with a reader who is interested in drafting habeas corpus petition templates for use by those facing federal or state apprehension, detention on public health emergency (quarantine) pretexts. Among other things, we've explained our support for drafting and circulating habeas petitions — for public education purposes, including educating state and federal judges, state lawmakers and Congress members — and our view that habeas corpus petitions will be rejected by courts, as Latypova put it, "because the CDC/HHS will claim that it's not a federal imprisonment and not in the context of any crime, but 'public health.' " That is, courts will dismiss habeas and other legal challenges to quarantine orders, and uphold the challenged quarantine orders. The cases will be dismissed on standing, jurisdiction and mootness grounds, because the courts will defer to state and federal enabling laws, unless and until state legislatures, Congress and state and federal courts repeal and/or nullify the enabling laws. [Information about state-level repeal; Congressional repeal of public health laws.] The reader is continuing to study the issues. Further correspondence, edited for clarity, is below. There will probably be additional installments of this series; the correspondence is ongoing. Reader: The availability of habeas corpus relief for an apprehended individual to challenge their quarantine, isolation, or conditional release is the issue. That is, does habeas relief even apply? The anticipated HHS-CDC argument that "it's not a federal imprisonment and not in the context of any crime" may be vulnerable as follows. In Boumediene v. Bush, 553 U.S. 723 (2008), a decision admittedly not directly on point and thus not binding, the persons for whom SCOTUS held habeas corpus was an available remedy, were not federally imprisoned for any crime. Instead, they were "aliens designated as enemy combatants...detained at...Guantanamo Bay..." Some had been "apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia." So, arguably, there is an argument that habeas extends beyond the context of imprisonment for crime, especially since a person who is merely "reasonably believed to be infected..." is such a low threshold, I'd argue it's unconstitutionally vague. The argument that habeas is an available remedy for an apprehended, quarantined individual is buoyed by the applicable CFRs, which refer to habeas as a remedy four times, so HHS-CDC would have a hard time arguing habeas relief cannot be availed. The more difficult aspect is the criteria by which the underlying threshold determination by CDC medical officers is made under 42 CFR 70.1, General definitions, Reasonably believed to be infected, as applied to an individual, defined as a determination that "an individual has been exposed, either directly or indirectly, to the infectious agent that causes a quarantinable communicable disease, as through contact with an infected person or an infected person's bodily fluids, a contaminated environment, or through an intermediate host or vector..." I understand the arbitrary/nothing criteria under which the HHS director may declare a 'public health emergency.' But, when it comes to apprehending individuals, have you come across language in a quarantine order such as: "The people in the row in front of you on your flight from SFO to JFK yesterday just died of Marburg." Are the criteria listed somewhere? In the March 2020 quarantine orders from the cruise ship, do the orders contain "specific articulable criteria?" Or is "specific articulable facts upon which a public health officer could reasonably draw the inference," 42 CFR § 70.1, all there is? I ask because one place to challenge an apprehension and continued detention is to attack the underlying factual claim. I take Katherine's point that "Judges will probably find those arguments and factual assertions about the existence of disease, disease-causing pathogens, and the transmissibility of asserted pathogens, to be dispositive. They’ll deny the petitions as moot without fact-finding, and uphold the detentions," given the deference courts give the executive branch, and I take her point about the language in South Bay Pentecostal v. Newsom (courts should not second-guess executive and legislative branches on issues fraught with scientific and medical uncertainties). But I have two thoughts in response. First, this is where the last four years of piled up evidence about how wrong the testing procedures have been (PCR), how wrong and exaggerated mortality predictions have been, how wrong and discredited CDC has been, and all the rest, all would come into play to be used to challenge the "factual assertions" underlying the order of apprehension, quarantine. Second, I need to read SCOTUS's recent repeal of the Chevron doctrine about deference to agencies' statutory interpretation, to see if it helps. KW: On whether there are specific scientific or medical criteria for public health emergency declarations and all government acts (such as quarantine orders) taken pursuant to PHE declarations, my understanding is that there are not, and there have never been, and none have ever been legally required to support governmental acts. This gets into the interplay between
In other words, arguments attacking government regulations as “unconstitutionally vague” cannot get a hearing, because by statute the emergency is presumed to exist upon HHS secretary declarations and determinations, which require no demonstration of any objectively measurable criteria, and the emergency status cannot be terminated by anyone other than HHS secretary. On SCOTUS overturning Chevron through Loper, I did a brief analysis, main point of which is
Some details and examples of the clear Congressional intent to block all law-based attempted exits from the legal kill box in the post:
The fact that HHS-CDC refer to habeas in the Jan. 19, 2017 Notice of Final Rule should not, in my view, be interpreted as HHS, CDC, or DOJ lawyers' belief that the remedy is applicable, or as their belief that courts will consider or apply the remedy. From what I understand from having read HHS-CDC's work across many decades of Federal Register notices, they put those references in to suggest constitutional law is operative to cursory readers, but they know — and judges know — that it is not operative, because they know how it has been suspended: through the public health emergency and preemption statutes and the prior case law upholding those statutes. Federal Register entries are part of the deception and misdirection toolkit. Elements of each notice are true, and other elements are lies, deliberately included to continue to obscure the legalized crimes from public view. Reader: The CDC quarantine order screenshot embedded in Sasha's article linked here (1) Grand Princess Quarantine Orders - Discussion with Dr. Jane Ruby (substack.com) states: "Based on the attached medical declaration, I find:..." Have either of you acquired one of the medical declarations, that supposedly support the order? I'm looking at how to challenge the "specific articulable facts upon which a public health officer could draw the inference that an individual has been exposed," 42 CFR § 70.1, that must support a "reasonable belief" that must exist before apprehension may be authorized under 42 CFR § 70.6, so I'd like a look at how CDC articulated the basis for the apprehensions and detentions. KW: Attaching a zip file of the documents I have from the Children's Health Defense FOIA sequence that began in April 2024. The first production by HHS-CDC, May 2024, was a 50-page collection of quarantine order extensions. On appeal, CHD requested the original orders, even if those were group orders that didn't specify individuals. That led to the second production by CDC, July 2024, 85 pages. I haven't looked again (yet) at these documents with habeas strategy in mind, but want to emphasize that the regulations built in a group-notice system. In a Nov. 30, 2005 Federal Register Notice of Proposed Rule, HHS-CDC indicated a plan to number the group notice provision as 42 CFR 70.18. Through the Jan. 19, 2017 Final Rule, it ended up as 42 CFR 70.16(m). If I understand it correctly, it's a version of collective presumed guilt, that covers quarantine of individuals without individual medical assessments as to exposure, risk, etc. See "All persons," for example, at p. 25 of the 85-page collection, dated March 8, 2020 and signed by Nicole S. Cohen. This is also related to state-level public health and quarantine laws. For example, a Texas law that allows law enforcement to barricade neighborhoods and prohibit residents from leaving and returning from the quarantined area.
One more document collection attached: CDC documents, February and March 2020, about "risk assessment." I haven't looked closely at these. I downloaded them in May 2024 for future reference and was intrigued by PUI status - "person under investigation."
Reader reply: To my original question asking for a sample medical declaration, the 85-page compilation CDC provided to CHD on July 17, 2024, helps a lot in terms of illustrating some of the conclusory statements I suspected a medical declaration might contain, as follows: Paragraph 10: "The scientific evidence" "indicates clearly that." Paragraph 16: "Additionally, I base my reasonable belief on information analyzed from epidemiologic and other data regarding the nature and transmission of COVID-19 on cruise ships." Those conclusory statements in the declaration arguably do not meet 42 CFR § 70.1's standard requiring "specific articulable facts upon which a public health officer could draw the inference that an individual has been exposed," because the scientific evidence (specific articulable facts) is neither cited nor appended, so how can it be challenged by the individual under federal quarantine? Thus, the medical declaration is legally deficient. Thus, the 42 CFR § 70.14(a) federal order authorizing quarantine made in reliance on a legally deficient medical declaration is also legally deficient. That's how the argument would go, anyway. I’m also looking at 42 CFR § 70.16's review process of an individual's quarantine status. Subsection 70.16(g) provides for the individual or his/her authorized advocate "to examine the available medical and other records" "that pertain to that individual." Following up, do you have more information about how a disease becomes classified as a "quarantinable communicable disease?" KW reply Diseases become classified as "quarantinable communicable diseases" by Presidential Executive Order. Please read this post for an orientation:
Non-specifically defined SARS was added to the list by Bush in 2003; influenza was added by Bush in 2005; Obama expanded the nonspecific definition of SARS in 2014; Biden added measles in 2021. EXECUTIVE ORDERS Reader: What was unclear for me before was: what makes a "communicable disease" a "quarantinable communicable disease"? And I learned the answer, which is the disease's inclusion on the list of diseases in presidential executive orders. Sasha Latypova: That's why I view the fight online about isolation of SARS-Cov-2 as largely a distraction. The "pandemic viruses" are declared by presidential EOs and require no science whatsoever. KW More of the legal background on the lack of any scientific criteria for "quarantinable communicable disease" and the centralization of power in HHS Secretary control, below. The 1944 Public Health Service Act, at Section 361, 58 Stat 703 [42 USC 264(b)] provided that "regulations prescribed under this section shall not provide for the apprehension, detention, or conditional release of individuals except for the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive orders of the President upon the recommendation of the National Advisory Health Council and the Surgeon General. The National Advisory Health Council was formed in 1902, through PL 57-236 (act to rename Marine-Hospital Service as the Public Health and Marine-Hospital Service and reorganize its functions) as a nameless 9-member advisory board appointed to advise the director and employees of the Hygienic Lab (under Treasury Department) about research investigations and methods. In 1930 (PL 71-106; PL 71-251), Congress changed the name of the Hygienic Lab to the National Institute of Health; expanded the membership of the advisory board to 14 by adding five "representatives of the public health profession;" named the board the National Advisory Health Council; and tasked the board with "advising the Surgeon-General...in respect to public-health activities." In 1939, the Public Health Service was transferred from the Treasury Department to the newly-created Federal Security Agency, under the direction of the FSA Administrator. In 1953, under the Congressional Reorganization Act of 1949 (PL 81-109) and President Eisenhower’s Reorganization Plan No. 1 of 1953 (18 FR 2053), the FSA was abolished and its functions transferred to the new Department of Health, Education and Welfare, with the HEW Secretary taking over the FSA Administrator's powers. In 1966, also under the Congressional Reorganization Act of1949 (PL 81-109), President Johnson (Reorganization Plan No. 3 of 1966, 31 FR 8855) transferred the Surgeon-General's functions to the Secretary of Health, Education and Welfare. The Office of Surgeon-General was abolished through the same 1966 reorganization plan and then re-established as a subordinate office under the HHS Office of Assistant Secretary for Health in 1987 (52 FR 11754). In 1979, (PL 96-88) Congress set up the Education Department as a separate federal agency, and redesignated the US Health, Education and Welfare Department as the Health and Human Services Department and the HEW Secretary as the HHS Secretary. In 2002 (PL 107-188), at 116 Stat. 626, Congress eliminated the "prerequisite for National Advisory Health Council recommendation before issuing quarantine rules" and downgraded the Surgeon-General's role from "recommendation" provider to the President, to provider of "consultation" to the HHS Secretary. Through that Public Health Security and Bioterrorism Prepardeness Act of 2002, Congress amended 42 USC 264(b) [Public Health Service Act Section 361(b)], "Executive Orders Specifying Diseases Subject to Individual Detention by striking ‘‘Executive orders of the President upon the recommendation of the National Advisory Health Council and the Surgeon General’’ and inserting ‘‘Executive orders of the President upon the recommendation of the [HHS] Secretary, in consultation with the Surgeon General." In other words, between 1930 and 2002, the National Advisory Health Council and Surgeon General shared statutory responsibility (more or less), with the President and the Treasury Secretary, which became the Federal Security Agency Administrator, which became HEW Secretary, which became HHS Secretary, for designating quarantinable communicable diseases. Whether the actual NAHC or any Surgeon-Generals did any substantive work or attempted to provide any valid scientific grounding for Presidential EOs, I don't know. I've found no documents to support the conclusion that they did. Nor have I found any documents to support the conclusion that Presidents or HHS Secretaries have ever attempted to provide any valid scientific grounding for Presidential EOs. There's a growing body of work (by Stefan Lanka, Jamie Andrews, Mike Stone, Mark and Sam Bailey and others) demonstrating that communicable disease science (i.e. 'virology') and public health policy and practice (including quarantine, isolation and vaccination) have been based on predominantly fabricated, manipulated and mischaracterized data. That body of work supports the conclusion that the Surgeon-Generals, NAHC members, Treasury, FSA, HEW and HHS Secretaries and Presidents have never and still don't provide valid scientific grounding for Presidential EOs designating 'quarantinable communicable diseases,' because they couldn't and can't. Regulatory amendments were made over time to build up layers of obscuring language, to keep the knowledge that the quarantine and vaccination programs are based on falsifiable and falsified scientific conclusions, away from the public targeted for systematic poisoning through vaccines. In some of the Federal Register notices, there are comments from objectors, who realized that the wording was so loose, anything could be designated as a quarantinable communicable disease. Example of the CDC's FR language obscuring the nonspecific, common illnesses of SARS and influenza having already been added in 2003, 2005 and 2014 is in Jan. 19, 2017 Final Rule (82 FR 6890), at pp. 16-17:
Reader ...While I understand the overall enormity of the problem (Surgeon General's power to set up detention camps), in cold terms the assignment of Presidential function/power to the HHS secretary is just about who approves the Surgeon-General actions. Do you agree?... After the 2002 elimination of the "prerequisite for National Advisory Health Council recommendation before issuing quarantine rules" there are now no criteria at all — besides "consultation" with a two-org-chart-tiers-down-subordinate (the Surgeon-General) — constraining/limiting/vetting the HHS Director's choice of what disease he/she recommends the President add to the list of quarantinable communicable diseases. Is that correct? And when one combines that recommendation power, with the power to set up detention camps, 42 USC 267(a), with the power to apprehend, 42 USC 264, and thus fill those detention camps, we have a problem, to make a spectacular understatement, and nobody besides you two and a few others are really talking about it or grasping it. Is that about right? KW Briefly, re: your questions to me about Presidential delegation of authority to Surgeon General and HHS Secretary, I think the main significance lies in Congress unconstitutionally transferring legislative authority to the President, and the President then unconstitutionally transferring his illegitimate legislative authority to the appointed, unelected civil administrator, while Congress also purported to formally strip the judiciary of its judicial review authority over the acts of three other federal parties: Congress, President and HHS Secretary; and Congress purported to preempt the authority of state and local governments and state and local law, which are also unconstitutional Congressional acts. I traced some of this history back to a 1939 Congressional act, the Reorganization Act of 1939 (PL 76-19), which created self-executing conditions for President and Cabinet secretaries to reorganize functions of federal agencies, and abolish and create agency divisions, that Congress could only block after the reorganization plans were announced, by mounting majority votes in both houses. It's an example of the inversion of "separation of powers" doctrine to enable concentration of power in executive/administrative branch. Congressional oversight and judicial review are construed as overstepping bounds and unduly interfering in executive functions. Specific to the public health emergency history, the Reorganization Act of 1939 is when Congress authorized the President to create the Federal Security Agency, and transfer functions and divisions formerly under Treasury Secretary, including the Public Health Service, to the new FSA administrator. FSA later became Department of Health, Education and Welfare, and then became HHS... HHS power to determine, declare and/or extend public health emergencies (PHEs) is a different section than the quarantine power and power to designate quarantinable communicable diseases, although they are related, for example, in the mechanism through which liability waivers are attached to products that are authorized or approved under declared/determined/extended PHE conditions. If the PHE conditions are lifted, then the liability waivers derived from the PHE status are eliminated, although they also have redundancy built in, so that the other liability waivers remain in force and achieve the same effects. The PHE power is mostly covered in 42 USC 247d-6d, Targeted liability protections for pandemic and epidemic products and security measures and 21 USC 360bbb-3, Authorization for medical products for use in emergencies as added and amended through the Project Bioshield Act, PREP Act and related Congressional acts. Specifically 42 USC 247d-6d(b), Declaration by Secretary and 21 USC 360bbb-3(b), Declaration of emergency or threat justifying emergency authorized use. At 42 USC 247d-6d(b)(6), Factors to be considered, the enumerated "factors" are: "the desirability of encouraging the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, and use of such countermeasure." Also important are the provisions
There are tentacles and redundancies built into other sections as well, that I can help you locate as you continue your orientation. But those are the main two, and their significance lies mostly in what Congress remained silent about: Congress did not define or require any valid scientific data, or scientific data review or validation procedure, to support the HHS secretary's determinations and declarations. Related:
Some references
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