Amicus American Commitment Foundation advised by Dr. Jay Bhattacharya and Dr. Andrew Bostom
From page 3 of Ireland and Childers’ MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF OF AMERICAN COMMITMENT FOUNDATION, INC. AS AMICUS CURIAE SUPPORTING APPLICANTS, A STAY OF AGENCY STANDARD, AND CERTIORARI BEFORE JUDGMENT
Substantial new factual developments related to the Omicron variant, arising after the filing, briefing, and arguing of the original cases, substantially under-mine the government’s justification for the ETS standard. The Omicron variant is — or will shortly be — the dominant viral strain in the United States, accounting for nearly all new SARS-CoV2 infections.
This significant change in circumstances negates the factual basis for the OSHA order in two ways: it dramatically reduces the risk of severe illness or death, and it renders the existing vaccines ineffective at reducing transmissions — thereby negating any possible societal benefit from mandating their use.
The Court should completely disregard any fact evidence developed prior to the rise of Omicron, including the original vaccine trials, which showed efficacy against the original “wild type” virus which is no longer in circulation. Presently available vaccines may confer a personal benefit against severe disease from the Omicron variant, but do not confer any demonstrable societal benefit, because they do not effectively reduce infections or transmission. They simply cannot protect workers from the spread of SARS-CoV-2 in the workplace. With the Omicron variant now dominant, vaccine mandates cannot possibly stop viral transmission. Therefore, they amount to a personal health mandate, akin to a requirement to eat broccoli, exercise, or any number of personal health measures that the Court has previously rejected as beyond the scope of legitimate federal power.
CHD’s Holland, RFK Jr. and Jed Rubenfeld advised by Drs. Luc Montagnier, Harvey Risch, and Robert Malone
No rational health policymaker would ever mandate a vaccine for a disease in the absence of evidence that the vaccine is effective against that disease. Such a mandate would be illogical, indefensible, contrary to the public interest, and almost certainly unlawful. Yet that is indisputably the case for the vaccine mandates at issue here.
In December 2021, a radically mutated new COVID variant known as Omicron became the overwhelmingly dominant strain in the United States, surging from 2% of infections on December 4 to over 95% of infections by January 1, 2002. By mid-January, Omicron is expected to account for substantially all US COVID cases. See Statement of Facts infra.
And no one knows whether the existing COVID vaccines are effective against it.
Preliminary data indicate that the COVID vaccines have severely-reduced efficacy against Omicron, but the truth, conceded by vaccine manufacturers themselves, is that “nobody really has efficacy data.” As the CDC says, we simply “don’t yet know . . . the severity of illness [Omicron] causes, or how well available vaccines . . . work against it.” See Statement of Facts infra. Indeed, there is evidence that vaccination may have “negative efficacy” against Omicron, increasing infection rates. Confronted with that possibility in a recent interview, the CEO of a leading vaccine manufacturer could not and did not rule it out, saying rather, “we will obviously have to assess it” when data on omicron becomes available. See infra Point II(B).
In these circumstances, the vaccine mandates must be stayed. No matter the standard of review, a vaccine mandate cannot be permitted without any evidence of efficacy. Judicial review of agency action is properly “confined to the full administrative record before the agency at the time the decision was made.” Yale-New Haven Hosp. v. Leavitt, 470 F.3d 71, 82 (2d Cir. 2006) (quoting Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981)). “If the agency action, once explained by the proper agency official, is not sustainable on the record itself, the proper judicial approach” is “to vacate the action and to remand the matter back to the agency for further consideration.” Envtl. Def. Fund, 657 F.2d at 285 (citing Camp v. Pitts, 411 U.S. 138, 143 (1973)). Accordingly, the vaccine mandates before the Court must be stayed, because there is no evidence in the administrative record—nor any evidence outside that record—of vaccine efficacy against the virus we now face.
