Mary Maxwell Sends Her Covid-Vax Appeal to the First Circuit Court

by Dee McLachlan

Mary Maxwell of Concord New Hampshire, formerly of Adelaide, SA, filed a lawsuit on December 22, 2020, asking the US District Court to issue a restraining order against a potential federal mandate for citizens to be vaccinated. The  pleadings emphasized her objections to such a mandate, on these eight grounds:

“that the testing for Covid is unreliable, that Covid cases aren’t being accurately reported, that the purpose of the Lockdown is apparently not for health but to terminate national economies, that the emergency vaccines have evaded standard safety testing, that there is a little-understood connection between vaccination and DNA, that successful cures for Covid, such as Ivermectin, are withheld, casting doubt on the sincerity of the race for a Covid vaccine, that a vaccine tattoo may be used as a ‘passport,’ and that scientific debate is being forbidden by censors.”

Maxwell also stated that her rights to the protection of the US Constitution were being violated.

The case was dismissed on February 1, 2021. She has now filed an appeal that pleads the urgency of protecting the Constitution’s integrity more than it criticizes the dubious science of the vaccine. She hopes her argument demonstrates the muddled state of law in the Republic, and the direction in which it is taking us.

Mary has told me that although this document is lengthy, it could really be reduced to six words, as stated by Alexandr Solzhenitsyn when he lamented the (avoidable) disaster of his nation — “How we burned in the camps….”

United States District Court
for the District of New Hampshire

Submission of Appeal, March 30, 2021                           Case # 20-CV-1193- PB

Mary Maxwell, pro se, Plaintiff

v

United States Secretary of Defense, in his official capacity; Administrator of Federal Emergency Management in his official capacity; and Secretary of Health and Human Services, in his official capacity

1. Plaintiff’s suit of December 22, 2020 sought injunctive relief against a potential federal mandate for Covid vaccination. On February 1, 2021 Judge Paul Barbadoro of the US District Court of New Hampshire ordered dismissal of Plaintiff’s case on grounds of lack of subject matter jurisdiction. That decision is hereby appealed.

2. The dismissal was based on her failure to meet the specifications laid out in Baker v Carr (1962) and Lujan v Defenders of Wildlife (1992). The order also referred to the recently dismissed Massachusetts case of Bechade v Baker (2020) in which Ms Bechade sought an injunction against enforcement of mask-wearing.

3. Plaintiff believes that the world has changed greatly since the 1962 and that the ruling in Baker v Carr is no longer good law. In this appeal, Plaintiff emphasizes that, in addition to seeking personal injunctive relief against vaccination, she is asking the court to stretch its jurisdiction to the legal limit, given the dire situation of the nation. It is only by way of a case that a person can engage the help of the Third Branch. This is such a case.

4. 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: “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.”

5. Plaintiff here below identifies assaults on the US Constitution, stemming from, or prompted by, the Covid pandemic, in the areas of the enumeration of Congress’s powers, the National Emergencies Act, the FDA, the Fourth Amendment, and states’ rights, as well as the attack on the nation’s sovereignty.

Enumeration of Congress’s Powers

6. The federal government is increasingly getting involved in the area of health. But health is strictly the prerogative of the state.  Article I, section 8 enumerates all of the 18 areas in which the Framers of the Constitution gave Congress the power to legislate. None of the 18 has even a slight connection to health or medicine.  In McCullough v Maryland (1819), Chef Justice Marshall wrote: “This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.”

7. There is an entity called the National Institutes of Health. Its website, NIH.gov, says: “NIH is the primary federal agency conducting and supporting basic, clinical, and translational medical research, and is investigating the causes, treatments, and cures for both common and rare diseases.” Plaintiff does not think that poses a challenge to the separation of powers as the entity does not purport to control anyone’s health, but only to be a scientific locus for study.

8. Nevertheless, since the Covid pandemic began (or was announced to have begun) in March 2020, Dr Anthony Fauci, the head of one of the NIH institutes, the National Institute for Allergy and Infectious Diseases, NAID, has been seen as a health decision maker. It is Dr Fauci who seems to issue the calls for mask-wearing, social distancing and quarantining.

9. Although it is really state governors, or municipalities, that are issuing those orders, and the lockdowns, some governors indicate that they bow to the national experts such as Dr Fauci. There is no support in the Constitution for Dr Fauci to issue any commands.

10. Plaintiff sees the stage being set for the federal government to mandate vaccination. The public has long accepted without question that the Centers for Disease Control and Prevention, the CDC, has a right to determine the schedule of all childhood vaccinations.

11. Actually, the CDC has no such authority. Rather it is the AMA that forces doctors to follow the CDC schedule. A main reason why a physician allows herself to be dictated to, is that she needs liability insurance, and the AMA provides it to her, so she joins the AMA.

12. Although it be the state legislatures, lobbied by the AMA, that have created this power for the AMA, the effect is that the CDC does indeed determine which vaccinations a child gets. Although a well-informed citizen may disagree with the number or type of vaccinations recommended for children, such as the Hep-B shot which is given within an hour of birth, most people do not know both sides of the story – media floods them with the positives. And today any negatives about vaccination are being deleted from the Internet, including those by doctors.
13. Most parents are cornered into the vaccine regime by the fact that a not-fully-vaccinated child may be refused entry to school. They may even be refused health care; many doctors now expel vaccination refuseniks from their practice.

14. Plaintiff notes that the Constitution should remain the guide as to which elements of government hold power legitimately in the United States, but very few people understand this. During the pandemic, Americans started to accept an ‘inevitable’ increase in authoritarian governance. Therefore, a ruling by a federal court that any vaccine mandate by the government would be unconstitutional would help everyone get past the confusion described above.

National Emergency Law of 1976

15. The correct relationship of “emergency” to the Constitution is expressed in the 1931 precedent in Home Building v Blaisdell. 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.”

16. The US had no emergency law until the Flood Control Act in 1944 and then the Civil Defense Act in 1950, and then the 1976 National Emergencies Act. In 1979 President Carter wrote EO 12148, illegally delegating some presidential powers to FEMA. FEMA was subsequently legislated for, in the 2002 Homeland Security Act.

17. The law invoked by President Trump during the 2020 pandemic is the 1976 National Emergencies Act. It is unconstitutional in that it gives the president power to deal as he sees fit – with no Legislative challenge for 6 months. This may be the law on which a president would rely to justify mandatory vaccination.

18. It is not surprising that people allow officials to overstep their legal authority in a crisis. It is a natural state of mind in a panic. This was seen during Hurricane Katrina in 2005 and the World Trade Center attacks in 2001. On both of those occasions the US government violated the Constitution and got away with it.

19. Plaintiff observes a loss of societal awareness of what used to be the security of the Republic. Each person was expected to give his/her best and take maximum responsibility. Culturally, and in education curricula, this has not been instilled as it once was. Thus we are endangered.

20. There is also the matter of society becoming resigned to massive lying and the ridiculing of the value of truth. This alone jeopardizes the Constitution. It takes resolve to support a Republic and if one is drowning in misinformation, one cannot do what is needed. The Framers were clear thinkers, no nonsense. Plaintiff believes that solemn words emanating from the Court now would be restorative.

The FDA

21. Many citizens assume, because of the existence of a US Food and Drug Administration, the FDA, that the federal government has a right to control the production or sale of drugs or medical devices. But Clause 3 of Article I, section 8 says only that Congress shall have Power the power “to regulate Commerce among the several States.”

22. The website FDA.gov (retrieved March 28, 2021) has as its opening headline “FDA Takes Action To Address Corona Virus Disease (Covid-19).” It says that, per its emergency usage authorization, it will allow “the Janssen COVID-19 Vaccine to be distributed in the U.S. for use in individuals 18 years of age and older.”
23. That website implies that the federal government, through the FDA, is thus entering into states’ territory, as though FDA has evaluated the vaccine for its suitability as a treatment for Covid. No, it has not. The public is misled. It thinks the federal government, as such, has used some medical wisdom to recommend a good treatment – and so may trust it.

24. The Food, Drug, and Cosmetic Act of 1938 allows this agency only to vouch that what is shown on the label correctly reflects what is in the product. For example, as codified at 42 USC 246 : “(1) No person shall introduce or deliver for introduction into interstate commerce any biological product unless— (A) a biologics license under this subsection or subsection (k) is in effect for the biological product; and (B) each package of the biological product is plainly marked with (i) the proper name of the biological product contained in the package….”

25. At FDA.gov, we see this question: “What data did the FDA review when deciding to authorize Janssen COVID-19 Vaccine for emergency use?” The answer provided is: “The FDA evaluated and analyzed the safety and effectiveness data from clinical trials conducted in over 40,000 thousand study participants and manufacturing information submitted by Janssen Biotech, Inc.” In other words, it was the company applying for approval, Janssen, that handed in the proof of its safety and effectiveness! No medical research was engaged in by the FDA.

26. The above answer goes on to say: “The FDA has determined that the totality of the available data provides clear evidence that Janssen COVID-19 Vaccine may be effective in preventing COVID-19. The data also show that that the known and potential benefits outweigh the known and potential risks of the vaccine’s use in millions of people 18 years of age and older, including healthy individuals.” Plaintiff disagrees that “unknown potential risks” can be weighed.

27. It appears to Plaintiff that the self-servingness of the arrangement makes it possible for a vaccine manufacturer to use the good offices of the US to promote particular vaccines.

28. Another question displayed at FDA.gov is: “What side effects (adverse events) must be reported to the FDA by vaccination providers and Janssen Biotech, Inc?” The answer given is: “It is mandatory for Janssen Biotech, Inc. and vaccination providers to report the following to the Vaccine Adverse Event Reporting System (VAERS) for Janssen COVID-19 Vaccine: Serious adverse events, Cases of Multisystem Inflammatory Syndrome (MIS) [and] Cases of COVID-19 that result in hospitalization or death.” No punishment for failure to report is listed. The US Criminal Code does not list any penalties.

29. The VAERS comes under a different federal bureaucracy, the Department of Health and Human Services, DHHS, which has no support in Article I, section 8’s enumeration of Congress’s powers. The very first Congress (1789-1791) passed “An Act for the Relief of Sick and Disabled Seamen,” establishing a Marine Hospital Service for merchant seamen. Soon this hospital was renamed US Public Health Service. It had a surgeon general, and in due course that office was transmogrified into “the US Surgeon General.”

30. At the website of the National Institutes of Health, one finds this report dated March 23, 2021: “Late Monday, the Data and Safety Monitoring Board (DSMB) notified NIAID, BARDA, and AstraZeneca that it was concerned by information released by AstraZeneca on initial data from its COVID-19 vaccine clinical trial. The DSMB expressed concern that AstraZeneca may have included outdated information from that trial, which may have provided an incomplete view of the efficacy data.”

31. The relevant disciplining of AstraZeneca consisted merely of the following “urging”: “We urge the company to work with the DSMB to review the efficacy data and ensure the most accurate, up-to-date efficacy data be made public as quickly as possible.”

The Fourth Amendment

32. Plaintiff’s request for a restraining order against mandatory vaccination finds sufficient basis in the Fourth Amendment, both in regard to freedom from bodily invasion (by the Covid injection) and freedom from search by a proposed “vaccine tattoo.” The tattoo will store information in one’s body that would be accessible by many unaccountable people such as shopkeepers.

33. As reported in the New York Times on February 18, 2021, the government of Israel “is making leisure activities accessible only to people who are fully vaccinated or recovered starting Sunday. Two weeks later, restaurants, event halls and conferences will be allowed to operate under those rules. Customers and attendees will have to carry a certificate of vaccination….” Also, many common carriers are restricting travel to persons who have a vaccine passport.

34. The potential for use of a vaccine passport, inserted under the skin, is very real. As Plaintiff stated in Paragraph 38 of 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.

35. It is now known that such things were on the drawing board before the pandemic, and it is reasonable to consider that the pandemic was made to happen as a step in the direction of total surveillance. Cameras are everywhere now, and conversations get automatically recorded.

36. In regard to a case of surveillance in the Army, Laird v Tatum (1972), a dissenting opinion written by Justice William Douglas and joined by Justice Thurgood Marshall sad: “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.”

37. The Fourth Amendment, and all 10 amendments in the Bill of Rights, are protectors of dignity. Dignity alone is a reason to veto forcible vaccination. In Western Australia, the relevant law specifies that police can forcibly remove underwear when injecting an unwilling subject. In China, an anal swab is the type of Covid test now required of all visitors, against which Japan is loudly complaining. Plaintiff dreads the downhill ride toward complete abandonment of the Bill of Rights. That would also be the surrender of America.

States’ Rights 

38. In Mack and Printz v US (1998), Justice Antonin Scalia, writing for the Court, said “This separation of the two spheres [state and federal government] is one of the Constitution’s structural protections of liberty, a healthy balance of power will reduce the risk of tyranny and abuse from either front…. Hence a double security arises to the rights of the people. The different governments will control each other.”

39. On March 29, 2021, Florida’s Governor DeSantis said he may sue the CDC for its cruise-ship no-sail order, which hurts tourism in Florida. He apparently does not know that his state does not have to obey such an “order.”

40. Plaintiff believes that, of the five players in the Constitution – the legislature, the executive, the judiciary, the states, and the people — two upset the balance of powers by grabbing extra power, namely, the legislature and the executive. Two others, the judiciary and the states, upset the balance by not curtailing the other two. Thus, the ball must now be in the citizen’s court.

41. A people’s group, “Make Americans Free” asks people to sign “I want to the freedom to accept or reject medical treatments, including vaccinations, for myself and my minor children.” Of course we already have that, via the Bill of Rights. Still, in Massachusetts, Governor Baker mandated that all students, age 12-30, take the Covid shot by late February, 2021. This mandate was lifted thanks to public protest. Even against a state order of forcible vaccination, the Bill of Rights protects us. The precedent in Jacobson v Massachusetts (1905) does not alter that. Mr Jacobson had to pay a fine, but he did not have to undergo vaccination.

42. Not only Congress but the 50 sates have shown weakness against the pharmaceutical giants. In 1986 Congress passed the National Childhood Vaccine Injury Act, that deprives citizens of their common law right to sue a tortfeasor for vaccine injury. That Act also violates the 7^th Amendment right to trial by jury for suits greater than $20. The states do not have to continue to allow this to happen. They can interpose, as in Jefferson’s Kentucky Resolution of 1798.

The Attack on National Sovereignty

43. Plaintiff’s plea for a constitutional validation of her rights not to be mandatorily vaccinated is also a plea for a constitutional validation of America’s sovereignty. The pandemic, being worldwide, has made many people think we are under a world government. Just as many Americans incorrectly think that Dr Fauci, or the CDC or the FDA, have legitimate authority over health matters, so too do they think the UN speaks as boss to the US.

44. Some Americans, such as members of the Council on Foreign Relations, which is a private organization, have for a century encouraged a One World Government. So have some presidents, notably George HW Bush. Of course, the US cannot hand any power to foreign entities without cancelling the Constitution. Such a prospect is clearly “on the table” today.

45. Another factor against sovereignty is the power of huge global businesses. This led to a strange spectacle in January 2021 when a private communication business, Twitter, deprived the US President Trump of his tweeting to the citizenry. Even Trump seemed to take it lying down. This is another reason why the judiciary should take every opportunity to build up the power of the Constitution. Plaintiff thinks the Constitution is our only weapon against the globalizers.

46. It is highly possible that the goal of declaring a pandemic in March 2020 was to justify a lockdown that has by now put an end to hundreds of thousands of small businesses. Klaus Schwab, head of the World Economic Forum and veteran IMF decision maker, has given the bold name “Covid-19: The Great Reset” to his book, co-authored by Thierry Malleret. Schwab is openly pleased about the lockdown and does not intend to return the world to “normal.”

47. There is a separate issue involving the power of an employer to prevent an unvaccinated worker from keeping his job. Workers in Los Angeles Unified School District (LAUSD) are seeking from a local court the right to say No to vaccination and still remain employed. Their union, Teamsters union 572, said: “We asked the District why they didn’t first offer vaccinations to those employees who want to be vaccinated, making it voluntary. They responded by noting that they want all employees vaccinated because a single person who is unvaccinated can pose a threat to everyone at their worksite.” Of course that can’t be true; the vaccinated are “safe”. Surprisingly the union supports the mandate. If the vaccine at LAUSD, namely, Moderna mRNA, causes injury, Teamsters 752 says: “The District believes that Workers Comp Leave is the most appropriate benefit time to be used for adverse reactions.”

48. A group in Israel has gone to the International Criminal Court to complain of a breach of the Nuremberg Code that outlaws human experimentation without informed consent. The ICC will probably not help. Nevertheless, such a move by Israelis has important symbolic value.

49. In the US, 21 CFR 50.20 says “no informed consent, whether oral or written, may include any exculpatory language through which the subject or the representative is made to waive or appear to waive any of the subject’s legal rights….” When FDA issues “EUA” – emergency use approval — the drug or vaccine has not been properly tested, so is by definition experimental.

Dismissal of Plaintiff’s Case

50. The Plaintiff’s case was dismissed with reference to the Baker v Carr doctrine, saying that she lacks “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends.” Granted, the case made in this appeal does lack sharpness.  In fact, lack of sharpness – murkiness — is the very issue Plaintiff is addressing.

51. Everything is murky. The media lies, non-stop. The US Supreme Court dismisses all cases of 2020 election fraud. People are told that if they take the vaccine they cannot then get the disease, yet science does not really know that today. The First Amendment right to assemble is voided by the lockdown. A man holding no government position, Bill Gates, seems to call the shots. And he is set to reap a huge profit in royalties from the vaccine and related technologies.

52. Plaintiff thinks the wording of Baker and Carr belongs in a museum. Given the aforementioned murkiness, it is hard to bring a clear case to court. There is most certainly a violation of rights being addressed in her pleadings, whether or not she achieved a picture of “concrete adverseness.” There is an undisputed Fourth Amendment right to not have one’s body invaded.

53. There is also the right to keep the whole Constitution in force, it being our weapon against tyranny. Plaintiff stated in Paragraph 44 of her pleadings that by accepting a mandated vaccination she would “feel complicit in the overthrow of our legitimate constitutional government.” This is no offbeat concept. Per Article VI of the Constitution “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution….”

54. Plaintiff did not fail to present a case for which a US district court has subject-matter jurisdiction. Per the US Supreme Court ruling in Marbury v Madison (1803) “It is emphatically the province and duty of the Judicial Department to state what the law is.” Plaintiff seeks not just a restraining order against federally mandated vaccination, but declaratory relief. There is also the law maxim Judicandum est legibus, non exemplis. “We should judge by the laws, not precedents.”

55. Referring to the First Circuit Court’s understanding of Lujan v Wildlife, as seen in the case of Katz v Pershing, the District Judge wrote: “It is not enough that the harm could conceivably occur ‘at some future time;’ rather, an ‘actual or imminent injury’ demands that ‘the harm has either happened or is sufficiently threatening’.” Plaintiff avers that if the injury is defined not as the injecting of the vaccine but as the lead-up to it, the harm has happened.

56. The dismissal also says “Maxwell…concedes “there is at this moment no law directing [her] to be mandatorily injected…. Her complaint does not even allege that …the Executive Branch is considering such a law. …. [W]ithout any description of concrete plans concerning how and when the President may actually make such a declaration, [she] does not satisfy her burden of showing that a vaccine mandate is actual or imminent.” That is an unfair requirement. The whole world is watching as various governments, including the US, come up with Covid-19 mandates, ad hoc. In the US, people do not customarily get a preview of an Executive Order.

57. Plaintiff had also stated in Paragraph 50 of her pleadings, “Although there is at this moment no law directing Plaintiff to be mandatorily injected, events are moving quickly. And there is talk of martial law. During the course of martial law, courts do not function, thus people cannot pursue their constitutional rights.” Thus, contra Lujan v Wildlife, action by the judicial branch has to be anticipatory.

The only other option is to weep after the tragedy.

Respectfully submitted,

Mary Maxwell, Pro se                March 30, 2021

175 Loudon Rd, Ap 1, Concord NH 03301

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