Saturday, October 30, 2021

Nonfeasance, malfeasance or moral depravity

[11/6/21 This is a letter I have been drafting to send to my Alabama Senator and my Alabama representative in Montgomery. The drafting is now complete, and the below is my letter that I have  emailed to Sen. Roberts and Rep. Carns.]


Subj: Nonfeasance, malfeasance or moral depravity regarding vaccine mandates

Dear [Sen. Roberts] [Rep Carns]:

Virtually everyone agrees the most important thing for the United States to succeed in the fight against the pandemic, and to recover from the enormous economic, social, psychological and educational destruction done by the pandemic, is to get as much of the population vaccinated as possible.

I contend that it was nonfeasance, malfeasance and/or moral depravity on the part of Alabama legislators to vote in May to prohibit the use of vaccine passports by the government, businesses and employers, and it is nonfeasance, malfeasance and/or moral depravity for Gov. Ivey to oppose absolutely government vaccine mandates, and give no explanation of her reasons.

The foregoing is an extreme condemnation, and there may be room for such Alabama legislators and Gov. Ivey to mitigate the condemnation by what they may choose to say in reaction to things I say in this letter 

I . Absolute freedom of citizens, or not
A first matter is whether citizens have an absolute freedom to do whatever they want.

There may be many citizens who assert they have an absolute freedom to do whatever they want.

Under the United States constitution and state constitutions, and under the rule of law, it is absolutely clear that citizens do not have an absolute freedom to do whatever they want. 

A couple of examples are worthy of mention for advancing the argument I am making about nonfeasance, malfeasance and/or moral depravity.

A. Drugs
Libertarians contend that citizens should be free to do whatever they want, provided it does not harm others. For example, libertarians argue in favor of citizens being free to use any drugs, such as heroin, as they choose to use.

Alabama law prohibits the possession of heroin, which limits the freedom of a person to use heroin, and unless Gov. Ivey or an Alabama legislator says otherwise, I will assume Gov. Ivey in opposing vaccine mandates and those Alabama legislators voting to prohibit vaccine passports do not object to the limitation on the freedom of Alabamians to possess and use heroin.

B. Military draft
The military draft is a limitation on citizen freedom in the extreme. 

Conscientious objector status may be claimed, but it is a rigorous standard ("Beliefs may be moral or ethical; however, a man’s reasons for not wanting to participate in a war must not be based on politics, expediency, or self-interest. In general, the man’s lifestyle prior to making his claim must reflect his current claims."). Further there is an Alternative Service Requirement for those who are granted conscientious objector status.

C. Jacobson case 
The United States Supreme Court, in 1905, opined on the limitation on citizen freedom in the context of a smallpox vaccine mandate and upheld the smallpox vaccine mandate. Justice Harlan said,
“But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”


II. Powers and duties of government to protect health & safety of citizens

A. Powers
The Alabama government and government officials have powers to protect the health and safety of citizens. Alabama Code § 22-2-2 (2020) - State Board of Health - Authority and Jurisdiction. :: 2020 Code of Alabama :: US Codes and Statutes :: US Law :: Justia

On March 19, 2020 Governor Ivey and the Alabama Department of Public Health  issued a statewide health order to aid in Alabama’s efforts to contain the spread of the COVID-19, which order limited public gatherings, closed senior centers and schools, prohibited outsiders from visiting nursing homes, and prohibited restaurants and bars from serving customers on their premises. https://governor.alabama.gov/newsroom/2020/03/governor-ivey-issues-statement-on-statewide-public-health-order/

B. Duty
If a public official has the authority to act to protect the health and safety of citizens, and if the public official chooses not to exercise that power because the public official wants citizens not be safe and not be healthy, and wants citizens to die or become sick, and as a result citizens die or become sick, I would call the public official morally depraved. Legally, that is termed malfeasance or nonfeasance by the public official.

C. How a power is exercised by a public official
It is rare, if ever, that it will be established that a public official has a power  to protect the health and safety of citizens and has chosen not to exercise the power because the public official wants citizens not be safe and not be healthy, and wants citizens to die or become sick, and as a result citizens die or become sick.

There are gradations of possible malfeasance or nonfeasance. For example, the public official might act or not act on whim, such as by flipping a coin, and deciding "heads I will act and tails I will not act".

To be beyond acting on whim or on the basis of a flip of a coin, a public official needs to have reasons for acting or not acting. Reasons can be valid or flawed, and there can be reasonable disagreement about whether a reason is valid or flawed. Also there can be valid reasons both for acting, and for not acting, and such reasons for and against acting need to be weighed against each other, and as to that there may reasonable disagreement about how the balancing should come out.

Validity of reasons is dependent on what the relevant facts are. Relevant facts may not be known with 100% certainty, and a public official may need to make judgments or estimates about what the official believes the facts are. A public official may consult experts and advisers to help the official with the foregoing matters of validity of reasons, weighing reasons for and against, and ascertaining or estimating facts.

A public official will likely do the foregoing better if the official explains to the citizens the reasons for the official's decision to act or not and the facts or estimates of facts that were the basis of the official's decision.

D. Application of foregoing to a public official's decision about vaccine mandates
There are numerous factors, and facts that have bearing on reasons for and against vaccine mandates. These numerous factors make for an extremely difficult decision to be made by a public official about vaccine mandates. Different degrees of certainty exist regarding  the different factors in question.

A threshold factor is the extent to which vaccines work and prevent hospitalizations and death, compared to persons not being vaccinated, and also the extent to which vaccination decreases the rate of  infection of others.

A central factor is the extent to which mandates work and result in more vaccinations than without the mandates, or whether mandates decrease the number of vaccinations, compared to there not being mandates. A special category of cases is that of individuals who believe misinformation about the vaccine and choose not to get vaccinated by reason of such belief, and the extent to which a mandate will result in those individuals getting vaccinated, compared to there not being a mandate. 

A factor bearing on whether vaccine mandates work is whether the citizens are in favor of, or against, vaccine mandates. My understanding is that surveys have been done in Alabama, and they indicate in the range of 65% of Alabamians are against vaccine mandates.  I am not clear whether the surveys concern Biden's proposed federal mandate only, or whether the surveys are about any vaccine mandate, be it by the federal government, or a state or local government, or an employer. If citizens greatly oppose vaccine mandates, mandates may result in fewer vaccinations and have other negative consequences for the functioning of the society and the economy.

As regards citizens opposing mandates, the reasons individual citizens have for their opposition are relevant, such as whether the person's opposition to a mandate is a general opposition to the government (or anyone else) telling the person what to do about anything, whether the individual opposes the mandate for political reasons, or whether an individual is against the vaccine as a result of the person believing misinformation about the vaccine and thus opposes the mandate because of that.

Besides the positive effects on the health and safety of  Alabamians if mandates result in more citizens being vaccinated (or negative effects if mandates result in fewer vaccinations), there is the factor of how  the economic and social activities will be affected by the reactions of citizens to mandates compared to how they are affected if there are not mandates.. Resistance to mandates and refusals to get vaccinated may create significant disruptions. This will be affected by the extent to which mandates are opposed by Alabamians. 

An extremely important, and personal, factor for the public official is whether and how the official can influence the foregoing factors by means of the official's leadership qualities and abilities. This includes whether the public official can, and is willing to, explain to the citizens the foregoing factors that are relevant to the official's decision about mandates, and whether and to what extent the official is able to  persuade citizens to have different reactions to a mandate, compared to if the official makes no explanation to the citizens.

In sum, the numerous factors, and related relevant facts and estimations about relevant facts, related to a public official's decision about vaccine mandates, make for an extremely hard decision for the public official about vaccine mandates.

III. Judging Gov. Ivey 
A. Absolute decision against government mandates without explanation
In connection with her October 25th Executive Order to fight the Biden mandates, Gov. Ivey issued a statement which said,
 I am adamantly opposed to federal mandates related to the covid-19 vaccine and adamantly opposed to state mandates related to the covid-19 vaccine, plain and simple. As long as I am your governor, the state of Alabama will not force anyone to take a covid-19 vaccine.

Gov. Ivey's statement gave no explanation of her decision making process in deciding to be absolutely against government vaccine mandates in Alabama and not to give any explanation of her decision.

It is unknown the extent to which Gov. Ivey undertook the complex and difficult decision making process outlined above. 

One possibility is that Gov. Ivey chose not to engage in that decision making process and her  decision making is fairly set out as "Alabamians don't want government to tell them whether to get vaccinated, vaccination is entirely their personal choice, and I as Governor support and will support that absolutely, and I as Governor need not think about, and have not thought about, and will not think about, or give any consideration to anything else whatsoever."

Another possibility is that Gov. Ivey is not able to undertake the complex and difficult decision making process outlined above.

Possibly Gov. Ivey went through a complex and difficult decision making process, decided against government vaccine mandates, and chose not to explain her decision making process and instead said only what she said in her statement.

Gov. Ivey's absolute decision against governmental vaccine mandates, and giving no explanation for the decision, needs to be judged without knowing which of the foregoing three possibilities best describes Gov. Ivey's decision making process.

The current focus of attention is a mandate in the form of either get vaccinated or lose your job. Unless Gov. Ivey clarifies otherwise, it is assumed her absolute opposition to government mandates includes opposition to a government mandate that imposes a fine if a person does not get vaccinated. Also, it is assumed that Gov. Ivey's opposition to government mandate would not be changed if a mandate has religious and medical exemptions, or if vaccination would not be required if a person had natural immunity.

Gov. Ivey's absolute opposition to government vaccine mandates, with no reasons being given, has consequences and ramifications that need discussion.

B. Looking back at pandemic of the unvaccinated
Judging Gov. Ivey's absolute opposition to government vaccine mandates can be put in focus by looking back retrospectively and posing these questions:

Gov. Ivey, if you knew in March what you know now about the pandemic of the unvaccinated that has taken place in Alabama during the past six months, would you have used your power to impose vaccine mandates because you think mandates would have saved the lives of hundreds of Alabamians and had other positive effects? If you imposed mandates, would you have undertaken to explain and persuade Alabamians about the mandates in a way that would have contributed positively to saving the lives of more Alabamians?

Gov. Ivey's absolute opposition to government mandates means her answer would be, "No. I would not have imposed mandates to save the lives of hundreds of Alabamians," Maybe Gov. Ivey, in answering the hypothetical question that way, would have give reasons for her decision not to save lives, and maybe she would give no reasons for her answer to the hypothetical question.

C. Looking forward
Hospitalizations and deaths are currently declining in Alabama but no one knows for sure about the future, including the possibility of new variants, new vaccines, a repetition of the March through September 2021 pandemic of the unvaccinated, or new, different circumstances needing people to be vaccinated.

The uncertain future includes that American are faced with the protection of vaccines and natural immunity most likely being limited in time, and uncertainty about what the COVID situation will be in the coming months and years if Americans do not get continued protection by means of booster shots or new vaccines.

On a looking forward basis, Gov. Ivey's absolute opposition to government vaccine mandates, with no explanation, comes more clearly in focus by thinking about what the future will bring, and absolute opposition carried forward into the future as being nonfeasance, malfeasance and/or moral depravity. 

D. Misinformation
Special mention is made of the problem of uncontrollable misinformation causing Alabamians not to get vaccinated. "Uncontrollable" means Gov. Ivey can do little or nothing to keep Alabamians from receiving the misinformation. Government vaccine mandates may be a way to override and defeat the misinformation.

E. Educating and persuading citizens about their freedoms
As discussed above, citizens do not have the freedom to do whatever they want, and there are myriads of ways their freedoms can be and are limited by the government. Many citizens strenuously resist limitations on their freedoms by the government, and strenuously urge other citizens to resist limitations on their freedoms. Under the constitution and the rule of law, strenuous citizen resistance to the government limiting their freedom can become a significant problem and may need to be opposed by governmental force.

Elected officials, who take an oath of office to preserve, protect and defend the constitution, from time to time, must act expressly in opposition to citizens who are resisting in extreme ways limitations on their freedoms. Such elected officials almost have a duty, in some situations, to try to educate citizens that they are not free to do whatever they want, and to try to persuade citizens to be more accepting of limitations on their freedoms.

It is contrary to the foregoing if an elected official encourage citizens in believing they are free to do whatever they want. Such encouragement in one situation where it is not so critical that citizens not act on their belief can make it harder for the elected official to oppose citizens successfully in a different situation in which it is more critical for citizens not to act on a belief that they are free to whatever they want.

By not having and/or not giving any explanation of her absolute opposition to government vaccine mandates, Gov. Ivey has greatly encouraged Alabamians to believe they have the freedom to do whatever they want, and may encourage Alabamians to choose not to get vaccinated.

Gov. Ivey could have mitigated, even negated, that encouragement by not expressing absolute opposition to government mandates and by not saying there would never be vaccine mandates while she is Governor. Gov. Ivey could have limited her opposition to the specific mandate in question, explained her reasons for opposing the particular mandate,  and said there could be different circumstances in the future in which she would impose mandates and that citizens should not think they would be free to do whatever they wanted without consequence in such case in the future.

F. Environment of unrestrained political warfare 
In the United States, the two sides are engaged in extreme, existential, political warfare over an alleged rigged 2020 election, over voting rights, and over an alleged insurrection on January 6th to overturn the 2020 election. 

This has spilled over to political warfare over things that seriously affect the lives, health, and economic and social well being of Americans, and the political warfare is having adverse effects on those things.

Where this waging the political war against the other side is happening, it reveals the extent to which waging the political war has become more important than the lives, health and economic well being of Americans.

The political warfare has grotesquely spilled over to vaccine mandates to the potential detriment of the lives, health and social and economic welfare of Americans. I would contend that the GOP side is conducting political warfare over vaccine mandates with the object of there being less vaccination, less reduction of COVID, and poorer performance of the economy, and for the purpose of bettering GOP chances in the 2022 elections. Such political warfare includes encouragement of police and fire fighters to leave their jobs rather than be vaccinated and thereby threatens the safety and lives of Americans with less policing and fire fighting capability.

Gov. Ivey's absolute opposition to government mandates, without explanation, can perhaps be best explained as her carrying out her role in the waging of political warfare against vaccine mandates as contributes to achieving the foregoing GOP objects. I consider that moral depravity.

F. Conclusion
The foregoing sets out why I think Gov. Ivey is guilty of nonfeasance, malfeasance and/or moral depravity in her absolute opposition to government mandates, with no explanation of reasons. 

I have solicited other people to make rebuttals of what I say here, but none have responded.

If no one (including Gov. Ivey) will make a rebuttal or response to what I say here, I think that will tend to give more support to the above case that I make against Gov. Ivey.

IV. Legislators
The case that is made above against Gov. Ivey carries over in a similar way to the legislators who voted to prevent the use of vaccine passports, which are a form of mandate that imposes a cost for choosing not to get vaccinated.

Ultimately, I would contend the legislators voting to prohibit vaccine passports is that such is their form of conducting political warfare against vaccine mandates, with the object of there being less vaccination, less reduction of COVID, and poorer performance of the economy, done for the purpose of bettering there chances in the 2022 elections. 

Sincerely,


11/16/21
Since writing above letter, I became aware that ALGOP 2022 election strategy for there to be less vaccination, less reduction of COVID, & poorer performance of economy, included "behind closed doors" activity that made Alabamians more vulnerable to measles. I append this information here.

11/30/21
I have no ability on my own to get Gov. Ivey, ALGOP legislators, those on right wing talk radio, and others in ALGOP to respond to my above letter, and I have not gotten any response. I have turned to Alabama TV stations to urge them to try to get responses.

See also Dear Gov. Ivey re controlling COVID

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1 comment:

  1. Unknown11/11/2021

    Very well written and thought out. But sadly, cogent arguments do not sway most Republicans, especially when written above the 6th grade reading level.

    ReplyDelete

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