The sharpest legal minds have made variations of identical arguments in minor’s battery cases in North Carolina, Maine, and Vermont In all three, personal injuries were protected by PREP. The two Federal cases that remain challenge PREP’s constitutionality. Childers’ lawsuit filed in the Middle District of Florida is set for oral argument on May 20, 2025 at 03:00 PM EDT. Siri’s lawsuit filed in the Western District of Louisiana is still pending. There will be no oral argument.
The PREP Act itself never claims complete constitutional impermeability.
It is up to the D.C. District Court to determine which portions are unconstitutional or lead to unconstitutional results.
42 U.S. Code § 247d-6d(g)Severability
If any provision of this section, or the application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this section and the application of such remainder to any person or circumstance shall not be affected thereby.
This severance clause itself is not an admission that PREP is unconstitutional. However, it opens the door since severability is a mechanism for a court to keep the valid parts of a law and discard what is found to be unconstitutional (as long as the statute is not gutted) since courts generally try to uphold the validity of laws whenever possible to maintain legislative intent. Severability is a way to express the legislature’s preference for how the court should handle the law and guides the court’s decision-making.
Willful Misconduct is PREP’s made up tort. It is so impossible to plead that Watts v. DOD is the only case in 20 years to have even alleged it. (For those of you following Watts v. DOD, a Rule 60 Motion is pending since the D.C. Court did not automatically empanel 3-Judges to rule on the motion to dismiss.)
IMO the following provisions are unconstitutional:
PREP is a ‘taking’ if the US is named a covered person, but (f) claims sovereign immunity is not waived. Naming the Govt. then claiming Sovereign Immunity is contradictory and illogical. (f) should be severed.
The requirement of an enforcement action inserts HHS or the Attorney General between the injured and the manufacturer. Without an enforcement action, even willful misconduct isn’t.
PREP allows for wrongful death or serious bodily injury. This contradicts the sole exception for willful misconduct. As such it is unconstitutionally vague.
D.C. District Court’s exclusive jurisdiction or the C.I.C.P. filing prerequisite could also be challenged as being unconstitutional.
Remember that the severability clause encompasses not only the provisions but also the application of the law to any person.
I believe that in toto, constitutional challenges should be the exclusive province of Congress. I applaud attorneys Siri and Childers for their noble efforts in filing cases that spell out the reasons why PREP violates the Constitution. PREP is a target that must be attacked from every conceivable angle. Then again, since these outcomes are still pending, my thinking that they are barking up the wrong tree may be proved wrong. I certainly hope so.
Not intended as legal advice.
You write, "I believe that in toto, constitutional challenges should be the exclusive province of Congress." Why? Do you think the courts do not or should not have a role?
It would help to follow your thought process if you included the text of (f). Thanks!