In 1988, Congress passed the National Vaccine Injury Compensation Program. The logic behind this law was the belief that vaccines were so important to public health that holding vaccine manufacturers accountable for any injuries caused by the products was too dangerous. To end this unconstitutional law, Rand Paul has introduced Senate Bill 3853, the End the Vaccine Carveout Act.
National Vaccine Injury Compensation Program
In 1988 there was a problem. Vaccine manufacturers were swamped by so many lawsuits related to their products that they threatened to stop manufacturing them. Congress was convinced that vaccines were so important to public health that they had to be protected. In response, they passed the National Vaccine Injury Compensation Program. However, there were two very serious problems that Congress apparently didn’t bother to consider.
The first problem was a question that Congress didn’t ask. Why were so many people suing vaccine manufacturers? Sure, some of those lawsuits may have been frivolous, but since many of those suits were settled for the petitioner, doesn’t it beg the question why? Were there that many people injured by vaccines? Were the number and size of settlements a serious impact on the manufacturers enough to put them out of business? And if that many people were injured by the vaccines, was it possible that the problem was in the vaccine not the lawsuit?
Into this problem steps Congress, with more than a little lobbying by the vaccine manufacturers, I’m sure. That’s where problem number two raises its ugly head. You see, the Vaccine Injury Compensation Program law includes:
(2)(A) No person may bring a civil action for damages in an amount greater than $1,000 or in an unspecified amount against a vaccine administrator or manufacturer in a State or Federal court for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, and no such court may award damages in an amount greater than $1,000 in a civil action for damages for such a vaccine-related injury or death, unless a petition has been filed, in accordance with section 300aa–16 of this title, for compensation under the Program for such injury or death …
42 §300aa-11(a)(2)(A)
This was not the last law passed by Congress to claim immunity for vaccine manufacturers.
Public Readiness and Emergency Preparedness Act
The Public Readiness and Emergency Preparedness Act (PREP Act), was first passed in 2005, then updated in response to COVID-19.
‘(a) LIABILITY PROTECTIONS.—
‘‘(1) IN GENERAL.—Subject to the other provisions of this section, a covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration under subsection (b) has been issued with respect to such countermeasure.
Public Readiness and Emergency Preparedness Act
Now Congress claimed that anyone who had a claim against one of their “covered countermeasures” was out of luck. Yes, Congress provided a slush fund to buy off anyone injured by one of these vaccines or other covered countermeasure, but that creates its own problems. What’s the problem with Congress protecting vaccine manufacturers from lawsuits? To start with, it violates the First Amendment.
First Amendment
While most First Amendment issues I review here are not actually a violation of the First Amendment. However, the Vaccine Injury Compensation Program does violate the First Amendment. Specifically the Petition Clause.
Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances.
U.S. Constitution, Amendment I
You have a right to petition the government to redress a grievance. The most common way people do that is by suing. Remember, the judicial branch is part of the government. So when you file suit, you’re petitioning the government for a redress of some grievance. When Congress passed this law, they said you could not longer make such a petition.
But wait, Paul, it’s called the Vaccine Injury Compensation Program. Isn’t getting compensation for your injury a redress of your grievance? Not necessarily. Sure, most people want some financial compensation, but is that all? What about covering future medical costs? What about removing a product from the market, or just adding a warning label? These are all potential redresses for someone injured by a vaccine, but according to Congress you don’t deserve the opportunity to seek such types of redress.
While we’re talking constitutional issues, how about the fact that the Constitution does not authorize Congress to take on the liability of a third party? That makes this a violation of the Tenth Amendment as well, though that’s not all the constitutional problems with these laws.
Judicial Jurisdiction
The constitutional violations of these laws are not limited to the First Amendment. Not only do the National Vaccine Injury Compensation Act and the PREP Act claim immunity from any suit involved that “covered countermeasures,” but they both claim that no court, federal or state, would have jurisdiction. Section seven of the PREP Act goes on to claim immunity for the “Secretary.”
‘‘(7) JUDICIAL REVIEW.—No court of the United States, or of any State, shall have subject matter jurisdiction to review, whether by mandamus or otherwise, any action by the Secretary under this subsection.
Public Readiness and Emergency Preparedness Act
I looked at the PREP Act and you know what I didn’t find? Any mention of which secretary was getting immunity. I assume it is the Secretary of Health and Human Services, but the law doesn’t actually state that, at least not as far as I found.
There’s still a constitutional problem with this part of the legislation. Congress has no authority over the jurisdiction of state courts.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
U.S. Constitution, Article III, Section 1
Congress only ordains and establishes Article III courts, i.e. federal courts. They do not ordain, nor do they have the power, to regulate state courts. And before you claim “Supremacy Clause,” in order for a law made by Congress to be considered supreme, it must be made pursuant, or following, the Constitution of the United States. So, strike three when it comes to constitutionality.
End the Vaccine Carveout Act
Enter Rand Paul and his End the Vaccine Carveout Act. In it we find:
“(2) Beginning on the date of enactment of the End the Vaccine Carveout Act, and subject to paragraph (4)(B), irrespective of whether a person has filed a petition for compensation under the Program in relation to a vaccine-related injury or death, such person may bring a civil action against a vaccine administrator or manufacturer in a State or Federal court for damages arising from such injury or death.”
S.3853 – End the Vaccine Carveout Act
Under this legislation, should it become law, anyone who has suffered a vaccine related injury or death would be able to sue in either state or federal court. Of course this clause has the same problem with judicial jurisdiction as the existing laws do. In short, it would reverse part of the unconstitutional law, but not all of it.
Conclusion
I’ve brought these issues up to attorneys who deal with these types of suits, but so far I’m not aware of any that have actually brought up these fundamental issues. Which to me shows the sad state of our “legal” system. How else could laws with three constitutional violations exist for so long without a major challenge in court? With so many lawyers filing personal injury cases, why hasn’t one of them questioned the constitutionality of either the National Vaccine Injury Compensation Program or the Public Readiness and Emergency Preparedness Act? Could it be because the actual language of the Constitution is not taught in America? Not even in our law schools? How can someone get a degree in American Law without studying the supreme law of the land?
The problem with removing liability from any manufacturer is it also removes the most powerful incentive for them to insure the safety of their products. Would it surprise you that according to a chart from The Informed Consent Action Network, none of the vaccines on the CDC’s Childhood Vaccination Schedule have had a long-term, placebo controlled test before being added? While these vaccines may be safe for the majority of people, how do we know who may be injured if the government agencies that claim to be protecting the public health don’t demand proper safety studies? Why would a manufacturer who’s already investing millions, if not billions of dollars into a product, spend even more money to help insure the safe use of their products, if there’ no risk of being sued? Could the explosion of vaccines being added to the Childhood Vaccination Schedule be explained, at least in part, by the fact that vaccine manufacturers can crank out new products without worrying about their safety?
I wish Senator Paul well with his proposed legislation. It would be a great step to restoring accountability to the vaccine aspects of our public health system. Perhaps, if vaccine manufacturers were held accountable for the dangers of their products, they would spend more time testing if they were actually safe.
