Dershowitz: Is Biden’s Vaccination Mandate Constitutional?

Writing in Newsweek, Alan Dershowitz asks: Can the Federal government compel vaccinations?

There is a Supreme Court decision on compelled vaccinations, but it is a 1905 state case that carried a small fine for noncompliance.

Can Biden mandate vaccinations without explicit authorization from congress?

[T]he constitutional authority of the presidency has been expanding since the New Deal and its limits are constantly being tested by presidents of both parties. Presidents generally cite broad and vague congressional authority for their actions. […] It would surely have been better if Congress had explicitly authorized the mandates—better for democratic values and easier as a matter of constitutional law.

Sadly, Dershowitz resorts to the rubber-band concept, “the public interest”,

One point is clear: both sides are exaggerating their constitutional claims. Some proponents of the Biden mandate assure us that its constitutionality “is completely clear,” while some opponents are certain that it is “utterly lawless.” The reality is that the question could go either way. In such a close case, President Biden is justified in doing what he believes to be in the public interest and leaving it to courts to decide.

(In other words, the executive makes the law, and the courts possibly rewrite the law, totally circumventing the authority of the legislative branch.)

Commenting on the concept, Ayn Rand wrote in “The Fascist New Frontier”:

There is no such thing as “the public interest” except as the sum of the interests of individual men. And the basic, common interest of all men—all rational men—is freedom. Freedom is the first requirement of “the public interest”—not what men do when they are free, but that they are free. All their achievements rest on that foundation—and cannot exist without it.

The principles of a free, non-coercive social system are the only form of “the public interest.” [The Ayn Rand Column, 111]

and similarly in her essay, “The Monument Builders,”

Since there is no such entity as “the public,” since the public is merely a number of individuals, any claimed or implied conflict of “the public interest” with private interests means that the interests of some men are to be sacrificed to the interests and wishes of others. Since the concept is so conveniently undefinable, its use rests only on any given gang’s ability to proclaim that “The public, c’est moi”—and to maintain the claim at the point of a gun. [The Virtue of Selfishness, 88]

With vs. From: Interpreting COVID Hospitalization Rates

For 36-48% of COVID hospitalizations, COVID diagnosis was merely incidental. Quoting from The AtlanticOur Most Reliable Pandemic Number Is Losing Meaning” (13 Sept 2021):

If you want to make sense of the number of COVID hospitalizations at any given time, you need to know how sick each patient actually is. …. yet the overall tallies of COVID hospitalizations, made available on various state and federal dashboards and widely reported on by the media, do not differentiate based on severity of illness. Some patients need extensive medical intervention, such as getting intubated. Others require supplemental oxygen or administration of the steroid dexamethasone. But there are many COVID patients in the hospital with fairly mild symptoms, too, who have been admitted for further observation on account of their comorbidities, or because they reported feeling short of breath. Another portion of the patients in this tally are in the hospital for something unrelated to COVID, and discovered that they were infected only because they were tested upon admission. How many patients fall into each category has been a topic of much speculation. In August, researchers from Harvard Medical School, Tufts Medical Center, and the Veterans Affairs Healthcare System decided to find out.


Instead of meticulously looking at why a few hundred patients were admitted to a pair of hospitals, they analyzed the electronic records for nearly 50,000 COVID hospital admissions at the more than 100 VA hospitals across the country. Then they checked to see whether each patient required supplemental oxygen or had a blood oxygen level below 94 percent. (The latter criterion is based on the National Institutes of Health definition of “severe COVID.”) If either of these conditions was met, the authors classified that patient as having moderate to severe disease; otherwise, the case was considered mild or asymptomatic.

The study found that from March 2020 through early January 2021—before vaccination was widespread, and before the Delta variant had arrived—the proportion of patients with mild or asymptomatic disease was 36 percent. From mid-January through the end of June 2021, however, that number rose to 48 percent. In other words, the study suggests that roughly half of all the hospitalized patients showing up on COVID-data dashboards in 2021 may have been admitted for another reason entirely, or had only a mild presentation of disease.

The study also points out how vaccination helps reduce the severity of the infection:

One of the important implications of the study, these experts say, is that the introduction of vaccines strongly correlates with a greater share of COVID hospital patients having mild or asymptomatic disease. “It’s underreported how well the vaccine makes your life better, how much less sick you are likely to be, and less sick even if hospitalized,” Snyder said. “That’s the gem in this study.”

“People ask me, ‘Why am I getting vaccinated if I just end up in the hospital anyway?’” Griffin said. “But I say, ‘You’ll end up leaving the hospital.’”

The authors conclude by noting that those with COVID, but suffering from something else, should not be classified as a COVID hospitalization — to which I might add, not a COVID death.

[…] Doron told me, referring to decisions about school closures, business restrictions, mask requirements, and so on, “we should refine the definition of hospitalization. Those patients who are there with rather than from COVID don’t belong in the metric.”

Overcounting COVID Hospitalizations For Children By At Least 40%

From “New Research Suggests Number of Kids Hospitalized for COVID Is Overcounted” (NYMag Intelligencer):

The reported number of COVID-19 hospitalizations, one of the primary metrics for tracking the severity of the coronavirus pandemic, was grossly inflated for children in California hospitals, two research papers published Wednesday concluded. The papers, both published in the journal Hospital Pediatrics, found that pediatric hospitalizations for COVID-19 were overcounted by at least 40 percent, carrying potential implications for nationwide figures.

Dr. Monica Gandhi, an infectious-diseases specialist at the University of California, San Francisco, and Amy Beck, an associate professor of pediatrics, also at UCSF, wrote a commentary for Hospital Pediatrics that accompanied the two studies. They wrote, “Taken together, these studies underscore the importance of clearly distinguishing between children hospitalized with SARS-CoV-2 found on universal testing versus those hospitalized for COVID-19 disease.” The studies demonstrate, they said, that reported hospitalization rates “greatly overestimate the true burden of COVID-19 disease in children.” Gandhi told Intelligencer that while the studies were both conducted with data from California hospitals, “there is no reason to think these findings would be exclusive to California. This sort of retrospective chart review will likely reveal the same findings across the country.” 


“It is critical that the risks of COVID-19 to children be portrayed accurately,” Gandhi and Beck wrote. “Scientific and media reports that inaccurately portray the risk of COVID-19 to children can do harm by alarming parents and providing justification for ongoing restrictions to in-person education and other programming. Via these studies, parents and policy-makers should be reassured that pediatric hospitalization for severe COVID-19 disease is indeed rare.

Link: “Adjudicating Reasons for Hospitalization Shows That Severe Illness From COVID-19 in Children Is RareHospital Pediatrics

COVID19 Pandemic: What Went Wrong, What Went Right, and Why?

A must watch video by Dr. Amesh Adalja, “Looking Back on the Pandemic: What Went Wrong, What Went Right, and Why?” recorded at OCON 2021.

Dr. Adalja, a board-certified physician in infectious disease, critical care medicine, emergency medicine and internal medicine, specializes in the intersection of national security with catastrophic health events. He publishes and lectures on bioterrorism, pandemic preparedness and emerging infectious diseases. He is a frequent guest on national radio and television programs. During the Covid-19 pandemic, he has been treating patients, engaging in high-level policy discussions, advising various organizations and communicating extensively with the public. Views expressed are Amesh Adalja’s alone, and not those of Johns Hopkins University, the USG, or any other entity.

Salsman: The Success of Gold-Based Monetary Systems

Writes Richard Salsman in “Honest Money Will Require Rediscovering America’s Founders” (NY Sun):

“The fact is that it worked efficiently, elegantly, and nearly automatically, especially when least managed or manipulated by monetary authorities. I contend that gold-based monetary systems were known for facilitating price discovery, profit calculation, private planning, saving and investment, international trade, and — consequently — economic prosperity. Efficient, practical success was most evident in the late 19th and early 20th centuries.

“Gold-based systems were less successful when government hoarded and debased gold under the gold-bullion standard, which obtained between 1914 and 1948, and even less so under the gold-exchange standard. That, of course, was Bretton Woods, between 1948 and 1971, when the dollar alone was directly redeemable in gold (for foreign central banks) and then further debased.

“The history illuminates how these three distinct versions of the gold standard tracked closely to the prevailing size, scope, and power of the United States government. A more limited government prevailed under the classical gold-coin standard; it was four decades with free trade, no income tax, no central bank, no welfare state, and no major wars. Subsequent versions were accompanied by massive increases in the welfare-warfare state.”

Read the full article.


The Philosophic Basis of Capitalism by Leonard Peikoff

What explains the rise of statism in America, a nation founded on laissez-faire capitalist principles? Leonard Peikoff takes up this question in this 1980 lecture to a group of businessmen. After considering popular yet insufficient explanations, Peikoff identifies the ideas dominating Western philosophy as the crucial determinant.

Tracinski: The Case for the U.S. Staying in Afghanistan

  • World

Robert Tracinski, author of So Who Is John Galt Anyway? A Reader’s Guide to Ayn Rand’s Atlas Shrugged, makes a compelling case for staying in Afghanistan.

He correctly notes that leaving Afghanistan was not a good idea badly executed, but that withdrawing from Afghanistan was a bad idea, to begin with, and will only embolden America’s adversaries.

Writes Tracinski:

Advocates of staying in Afghanistan are usually accused of acting on the “sunk cost fallacy,” of throwing good money after bad on a failing venture. But in fact maintaining the status quo, with pre-withdrawal troop levels or even elevated troop levels, would have required a commitment of a few thousand troops, mostly acting in support of our Afghan allies, and a few tens of billions of dollars a year—a rounding error in our recent multi-trillion-dollar appropriations bills. In exchange, we would have gotten what we came to Afghanistan for in the first place: assurance that it never again becomes a safe haven for terrorists.

By contrast, what happens when we leave? Afghanistan is certain to become a base for terror again, and it will now be a hundred times harder to go back in again when we need to. After all, we can no longer make any credible assurances about our ability to protect people or our willingness to follow up on our commitments. They are entitled to conclude that if they help us again, we will sell them out again and then add insult to injury by implying, as President Biden did in his Monday speech, that they are cowards who aren’t willing to fight—even after they’ve been doing the bulk of the fighting and dying for years.


As one Afghan negotiator put it, “The slogan now of every single terrorist group with the jihadist mind is ‘now that we have defeated the United States and its 42 allies in Afghanistan, we can go after them anywhere.’” 


No jihadist success story can compare with the triumph of the Taliban, which faced the full might of the U.S. military only to have us slink away ignominiously. Remember that the Taliban now control more of Afghanistan than they did on September 10, 2001. How many fanatics worldwide will be inspired by this proof of the success of their cause?

Moreover, the repercussions of our abandonment of Afghanistan will be felt far beyond the Middle East. Already, Chinese propagandists are crowing that they expect an equally swift victory, with an equally ineffectual American response, when they invade Taiwan. Notice that they say “when,” not “if.” And what must the Russians be thinking right now about NATO security guarantees for the Baltic states?

This is an emboldening of our adversaries on a scale we haven’t seen since the 1970s. It is comparable to the period from 1975 to 1980—from the fall of Saigon through the Iran Hostage Crisis. It is a period of weakness that is provocative to all of our enemies.  [“Real Afghanistan Withdrawal Has Never Been Tried,“August 18, 2021.]

Read the entire essay at The Bulwark.

Peikoff & Chayes: Democrats Using Big Tech To Control ‘Misinformation’ Is Totalitarian

Write Peikoff and Chayes on this issue in Democrats Using Big Tech To Control ‘Misinformation’ Is Totalitarian (The Federalist):

Not so long ago, a “Ministry of Information” was an institution unique to socialist “utopias,” which required rigorous establishment and enforcement of official truth to maintain state power. As absurd as such an institution may have once seemed to us in the West, we are unfortunately seeing signs that it can indeed happen here.

The authors examine how the bill might work — banning open discussion on “settled topics” and replacing it with “the party line”, and concluding:

In times of fear and insecurity, the pull to appeal to authority might feel irresistible. But if we keep our wits about us, we will recall that we in the West have largely resisted this fallacious approach, both in science and politics, since the time the Catholic Church censored Galileo. (As if Socrates being forced to drink hemlock wasn’t enough!)

Are we now ready to feign amnesia once again and to obediently accept a truth proclaimed from the top down? Or is intense debate and controversy — ah, those uncomfortable disagreements that we experience in abundance in a pluralist society — an integral component of the scientific mindset, and approach which has brought us unprecedented wellbeing?


Government officials telling private companies to censor disfavored viewpoints on vital issues is the stuff of totalitarian regimes, not of a free country built on the homage of reason.

The entire article is required reading.

The recently proposed “Health Misinformation Act” can serve as a stepping stone for a total “Misinformation Act” once the principle is accepted that it is the government’s job to determine the “official truth.”

It must be opposed on principle.

There is no “no-man’s land” between opposite principles, no “middle of the road” which is untouched by either or shaped equally by both. The fact is that man cannot escape the rule of some kind of principles; as a conceptual being, he cannot act without the guidance of some fundamental integrations. And just as, in economics, bad money drives out good, so, in morality, bad principles drive out good. To try to combine a rational principle with its antithesis is to eliminate the rational as your guide and establish the irrational. If, like Faust, you try to make a deal with the devil, then you lose to him completely. “In any compromise between food and poison,” Ayn Rand observes, “it is only death that can win. In any compromise between good and evil, it is only evil that can profit.” [Leonard Peikoff, Why Should One Act on Principle?]