which went out on Monday. Johnson is usually one of the most polite folks you’ll ever see; he’s legitimately either the nicest or second-nicest politician we’ve ever met.
But this is…well, it’s still somewhat polite, but it isn’t nice.
The letter was a response to one of Garland’s latest hits, namely a Department of Justice opinion stating that vaccine mandates were A-OK as a matter of federal law, and it reads as a pretty solid legal dressing-down of a man Barack Obama thought was a “moderate” Supreme Court nominee. Garland has repeatedly proven Mitch McConnell right in blocking that appointment; it’s too bad there wasn’t a Republican majority in the Senate to keep him out of his current job.
Johnson, who’s a constitutional scholar and an accomplished practitioner of constitutional law and has been since before he even ran for the Louisiana legislature much less Congress, knows what he’s talking about. He rips apart DOJ’s reasoning.
You might go through this and say “Yeah, but what can he do about any of this?” That’s valid. Until there is a Republican House majority, Mike Johnson isn’t in a position to translate those words into action or to influence others to.
But if that’s all you have to say on the subject, you’re missing some things. Most notably is that all of these letters, statements, press releases and so forth are marking territory. We’re talking about building a file here. Those things can and will be used to make the case for a GOP majority to check the abuses of the Biden administration.
But then, assuming 2022 goes the way everybody thinks it will go, that file can be a blueprint for how to check those abuses.
And the real question then becomes what Sean Connery asked Kevin Costner in The Untouchables: What are you prepared to do?
What we can say with growing confidence is that the Republicans in the House – not necessarily in the Senate yet, but in the House – are beginning to recognize we’re in a war to save the country and that consensus politics, defined on the Right, in part, as Bush Republicanism, is no longer an operable mode to be in.
The evolution of Kevin McCarthy as the GOP leader in the House over the past several years from something of a squish and unquestionably a consensus-style politician to a much more aggressive, confrontational approach, is a very good example of that. McCarthy is a born politician. He’s whatever the House GOP caucus wants him to be, and whatever he needs to be to capture and hold his position. That he’s now willing to fight, that he’s willing to toss Liz Cheney out of leadership and essentially consign her to political oblivion, that he’s willing to pull the GOP out of Nancy Pelosi’s sham inquisition into One Six…those things might not represent core convictions of Kevin McCarthy but they do represent what he thinks his caucus expects from him.
And that means while Garland is going to ignore this letter from Johnson, come January of 2023 there will be recriminations and repercussions. Those might take the form of budgetary restrictions on DOJ. They will certainly take the form of hearings, subpoenas, harsh questions.
The might even take the form of impeachments, if not convictions.
The letter is a warning. In time, it will be more. If nothing else, it’s a blueprint for someone to file a lawsuit against those entities which adhere to Garland’s advice.
August 3, 2021
Attorney General Merrick Garland U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Dear Attorney General Garland:
In July, your Department of Justice (DOJ) issued an opinion that President Biden, federal and state agencies, and now private entities are relying upon as legal authority for COVID-19 vaccine mandates in the United States. Because the opinion failed to consider all federal statutes that secure critical civil liberties protections for every American, I urge you to immediately reconsider the opinion ‘s conclusion and provide greater context to its analysis.
The DOJ opinion specifically addressed whether the Food, Drug, and Cosmetic Act (FDCA) prohibits entities from requiring the use of a vaccine that has only been given only an emergency use authorization (EUA) by the Food and Drug Administration (FDA). The DOJ concluded the language of the FDCA does NOT prohibit the imposition of mandates for EUA vaccines and noted that “numerous educational institutions, employers, and other entities across the United States have announced that they will require individuals to be vaccinated against COVID-19 as a condition of employment, enrollment, participation, or some other benefit, service, relationship, or access.”
However, as footnote 3 of the DOJ opinion acknowledges: “We do not address whether other federal, state, or local laws or regulations, such as the Americans with Disabilities Act, might restrict the ability of public or private entities to adopt particular vaccination policies.” (Emphasis added.) Because the DOJ opinion omitted an analysis of federal laws that do prohibit universal mandates upon employees, many have been led to believe such vaccine mandates are lawful and appropriate.
One critical overlooked federal statute that protects the rights of conscience of all Americans is the Religious Freedom Restoration Act of 1993 (RFRA). As you know, RFRA protects federal employees from the government substantially burdening their free exercise of religion. Forcing any person to receive an injection in violation of their sincerely held religious beliefs would be a violation of their rights and would not constitute the least restrictive means for the government to achieve its interests.
Federal law provides similar caveats for private employers. For example, the Civil Rights Act of 1964 prohibits public and private employers from taking any adverse action against individuals for adhering to their sincerely held religious beliefs. In the past, this has included people of faith who have objected to vaccines that are derived from or tested using aborted fetal cell lines.
In addition to federal statutes, there are other recognized legal, ethical, and medical standards that should prohibit broadscale mandates of a vaccine that has received only emergency use authorization. The FDA’s own website acknowledges the importance of adhering to the Nuremberg Code (1947) and the Declaration of Helsinki (1964), which emphasize the necessity of full and informed consent before any person is required to take a drug that is not fully authorized.
As we all pull together to address the unprecedented COVID-19 crisis and protect our most vulnerable citizens, we must also be careful to preserve and protect the fundamental freedoms and God-given rights of every American. Many people who are unwilling to take the COVID-19 vaccine injections before they are fully authorized are now being told they may lose their jobs if they refuse to do so. This infringement upon Americans’ civil rights should cause you concern, as it does me.
Whether to get an emergency use authorization vaccine or not should be the free and informed choice of every individual, not a government-imposed or employer-imposed mandate. As the federal government’s top legal adviser, I urge you to revise the DOJ opinion in question and republish a thorough review of all laws and constitutional provisions implicated by such proposals.
Member of Congress