Politics & Law

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]

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?]

 

Mossoff: Sonos Win in Patent Battle Against Google is a Victory for Intellectual Property Rights

In a tweet commenting on “Sonos Scores Legal Win in Patent Battle With Google“, legal philosopher and intellectual property expert Adam Mossoff noted that Google being “held accountable for its predatory infringement of @Sonos patented technology” is an “important win for innovative startups against the deliberate piracy of their disruptive technology. The [U.S. International Trade Commission] has long been attacked by Google & other predatory infringers (& by their policy activist proxies). With this latest ITC decision, expect another round of attacks in the press & in DC pushing the ‘patent troll’ narrative & calling for so-called ‘reform’ of the ITC.”

Related:

Peikoff & Chayes: Can Trump’s Lawsuits Prevent Big Tech from Becoming Big Brother?

“Never-Trumpers” Amy Peikoff & Benjamin Chayes have an interesting article on the Trump Lawsuits against Facebook, Twitter, and YouTube; the application and scope of Section 230 (“while correct in principle, has, according to Justice Clarence Thomas and others, been applied in an overbroad manner”); and the government pressuring private companies to behave as state actors (fascism). Write the pair in Real Clear Politics:

“In its rebuttal to The Social Dilemma, Facebook insisted that, contrary to the documentary, it does work to remove “misinformation” and “hate speech.” In multiple hearings before legislators, Facebook and other platforms were warned that they must remove more such content — or else. And now, after revoking former President Donald Trump’s executive action concerning the legal protections for online platforms in Section 230 of the 1996 Communications Decency Act, it seems the Biden Administration is calling in the favor by encouraging Facebook and other platforms to remove coronavirus “misinformation.” Yet the removal of some of this content — and the de-platforming of some who posted it — forms the basis for Mr. Trump’s lawsuits. Why? Because much of this content is, however baseless or offensive, nonetheless legal, and therefore protected by the First Amendment against censorship by state actors.”

[…]

Our politicians, unfortunately, seem to approve of this arrangement, so long as they get credit for pressuring the platforms to remove content they and their “base” find undesirable. And the tech companies seem happy to continue the charade, self-identifying as private actors operating in a free market.

Read the rest.

How Would Judge Narragansett in Ayn Rand’s “Atlas Shrugged” Fix The U.S. Constitution?

How would Judge Narragansett in Ayn Rand’s best-selling novel “Atlas Shrugged” perfect the U.S. Constitution by removing the “contradictions in its statements that had once been the cause of its destruction”?

Professor Brian Simpson has some ideas.

According to Simpson, “One clause that I repeal from the Constitution is the Commerce Clause. This clause allows, among other things, Congress to regulate commerce among the several states.”

Quoting his book, A Declaration and Constitution for a Free Society, he writes:

“To have a proper understanding of why this clause must be eliminated, one must understand what it means for the government to regulate.  Regulation in this context refers to the government interfering in the market by initiating physical force to change some outcome that government officials do not like.  Regulation is not the same as protecting individual rights.  When the government protects rights, it bans the initiation of physical force, such as when it protects people from fraud.  When the government regulates, it violates individual rights because it initiates physical force.  The government regulates for many reasons, including to forcibly change the wages workers can earn in the market (through minimum wage laws), to impose laws based on environmental ideology (through the Environmental Protection Agency), and to impose drug safety and efficacy rules on drug manufacturers (through the Food and Drug Administration).”

You can learn more about the book on his website.

WSJ: Jan 6th Was No Coup d’état

From the WSJ:

“The chairman of the Jan. 6 committee, Rep. Bennie Thompson, claimed in his opening remarks Tuesday that “the rioters came dangerously close to succeeding” in their effort to “upend American democracy.” This is in service of Mrs. Pelosi’s political narrative that Mr. Trump conspired with a mob to stage a coup d’état. She wants to run against Mr. Trump again in 2022.

“This gives the mob far too much credit. Rioters believed Mr. Trump’s falsehoods about a stolen election, and some of them apparently thought they might stop Congress’s certification of the electoral votes. But that was an impossible fantasy. The Electoral College had already voted. Vice President Mike Pence had concluded, correctly and bravely, that he had no authority to reject the results. The rioters had no apparent leader and no coherent plan.

“Even if they’d managed to steal or destroy the official Electoral College certificates, do Democrats think some knucklehead in face paint and a fur hat could have simply declared the election void? The public and the courts wouldn’t have stood for a rabble overturning the 2020 result. Mr. Trump didn’t have the military on his side, or even most of his own Administration. The investigations so far have turned up no guiding cabal. Rioters have been arrested and many will go to prison.

“The riot was a disgrace, and it’s a stain on Mr. Trump’s Presidency. The police officers who testified Tuesday are heroes for holding the line and giving Vice President Pence and Congress time to evacuate.” [Two False Narratives About the Capitol Riot, July 28, 2021]

Related:

The Jan 6th Capitol Riot Show Trials Punish Political Opponents Not For Their Actions But For Their Ideas

Writes Senator Ron Paul on how The Jan. 6th Show Trials Threaten All of Us:

The recent felony conviction and eight month prison sentence of January 6th protester Paul Hodgkins is an affront to any notion of justice. It is a political charge and a political verdict by a political court. Every American regardless of political persuasion should be terrified of a court system so beholden to politics instead of justice.

We’ve seen this movie before and it does not end well.

Worse than this miscarriage of justice is the despicable attempt by the prosecutor in the case to label Hodgkins – who has no criminal record and was accused of no violent crime – a “terrorist.”

As journalist Michael Tracey recently wrote, Special Assistant US Attorney Mona Sedky declared Hodgkins a “terrorist” in the court proceedings not for committing any terrorist act, not for any act of violence, not even for imagining a terrorist act.

Sedky wrote in her sentencing memo, “The Government … recognizes that Hodgkins did not personally engage in or espouse violence or property destruction.” She added, “we concede that Mr. Hodgkins is not under the legal definition a domestic terrorist.”

Yet Hodgkins should be considered a terrorist because the actions he took – entering the Senate to take a photo of himself – occurred during an event that the court is “framing…in the context of terrorism.”

That goes beyond a slippery slope. He is not a terrorist because he committed a terrorist act, but because somehow the “context” of his actions was, in her words, “imperiling democracy.”

In other words, Hodgkins deserved enhanced punishment because he committed a thought crime. The judge on the case, Randolph D. Moss, admitted as much. In carrying a Trump flag into the Senate, he said, Hodgkins was, “declaring his loyalty to a single individual over the nation.”

As Tracey pointed out, while eight months in prison is a ridiculously long sentence for standing on the floor of the “People’s House” and taking a photograph, it is also a ridiculously short sentence for a terrorist. If Hodgkins is really a terrorist, shouldn’t he be sent away for longer than eight months?

The purpose of the Soviet show trials was to create an enemy that the public could collectively join in hating and blaming for all the failures of the system. The purpose was to turn one part of the population against the other part of the population and demand they be “cancelled.” And it worked very well…for awhile.

In a recent article, libertarian author Jim Bovard quoted from Solzhenitsyn’s Gulag Archipelago about how average people turned out to demand “justice” for the state’s designated “political” enemies: “There were universal meetings and demonstrations (including even school-children). It was the newspaper march of millions, and the roar rose outside the windows of the courtroom: ‘Death! Death! Death!’”

While we are not quite there yet, we are moving in that direction. Americans being sent to prison not for what they did, but for what they believe? Does that sound like the kind of America we really want to live in?

While many Biden backers are enjoying seeing the hammer come down on pro-Trump, non-violent protesters, they should take note: the kind of totalitarian “justice” system they are cheering on will soon be coming for them. It always does.

Made available by the Ron Paul Insitute.

James Grant on How Jonathan Levy’s “Ages of American Capitalism” Completely Misses The Point

The eloquent James Grant, the author of “Bagehot: The Life and Times of the Greatest Victorian,” and editor of Grant’s Interest Rate Observer, has penned a review of Jonathan Levy’s “Ages of American Capitalism” in the WSJ.

Some highlights:

In Mr. Levy’s vast mural of a book, which he ambitiously subtitles “A History of the United States,” John Maynard Keynes cuts the commanding figure. A few lines from Keynes’s “General Theory of Employment, Interest and Money” (1936), in fact, anticipate Mr. Levy’s central thesis. They read: “A somewhat comprehensive socialization of investment will prove the only means of securing an approximation of full employment.”

[…]

Mr. Levy writes to advance the proposition that American capitalism is turning from investment and production to speculation and chaos.

[…]

Mr. Levy is less successful at developing his thesis than he is at announcing it. His haziness on the nomenclature and history of finance is one problem, his want of authorial craft is another.

[…]

Mr. Levy doesn’t explicitly oppose the enterprise system — he acknowledges that it lifted the world from poverty — but he’s more inclined to disparage than admire the self-organizing dynamics of market-determined prices.

[…]

The conclusion to which Mr. Levy’s too numerous pages lead is that government is the indispensable cog in the American economy. It was World War II, a government enterprise if ever there was one, that ended the Great Depression, he contends, and it was the Federal Reserve that led us out of the Great Recession.

Conventionally, the author rushes past the depression of 1920-21, a bear of a downturn that was over and done with in 18 months despite punishingly high interest rates and balanced federal budgets. Why the slump ever ended should be a matter of intense curiosity for anyone who, like Mr. Levy, puts his stock in the Keynesian nostrums of big spending and concessionary borrowing costs. “Capitalism was not going to lift itself out of the slump,” the author writes of the Great Depression, yet our unstimulated capitalist forebears in 1921 somehow decided that prices and wages had fallen low enough to warrant new commitments of hope and capital. The 1920s subsequently roared.

For details on the depression of 1920-21, see Grant’s book The Forgotten Depression: 1921: The Crash That Cured Itself.

Contrary to Levy’s thesis, it’s actually government intervention in the market that makes depressions “great” and creates the economic chaos that Levy falsely blames on the marketplace. Levy’s call for the government to further take over the economy will only make things worse.

If you want insight into the history of American capitalism and economics you will have to turn elsewhere, as you won’t find it in Jonathan Levy’s “Ages of American Capitalism.”

A Lesson for Biden From Germany on IP

“The German government stood behind the goal of a worldwide supply of COVID-19 vaccines, a government spokeswoman said, adding however that the main factors in vaccine production are capacity and quality standards, and not patents.

” ‘The protection of intellectual property is a source of innovation and must remain so in the future,’ the spokeswoman said in a statement.”

It seems the German government understands Americanism more than the present “leadership” in America does.

Adam Mossoff: Biden’s Vaccine Patent Waiver and Intellectual Property

An excellent discussion on YBS with IP expert Adam Mossoff. You can visit Professor Mossoff’s website at adammossoff.com

***

From the WSJ:

We’ve already criticized President Biden’s bewildering decision Wednesday to endorse a patent waiver for Covid vaccines and therapies. But upon more reflection this may be the single worst presidential economic decision since Nixon’s wage-and-price controls.

In one fell swoop he has destroyed tens of billions of dollars in U.S. intellectual property, set a destructive precedent that will reduce pharmaceutical investment, and surrendered America’s advantage in biotech, a key growth industry of the future.

[…]

India and South Africa have been pushing to suspend patents at the World Trade Organization for months….their motivation is patently self-interested. Both are large producers of generic drugs, though they have less expertise and capacity to make complex biologics like mRNA vaccines. They want to force Western pharmaceutical companies to hand over IP free of charge so they can produce and export vaccines and therapies for profit.

[…]

AstraZeneca and Novavax have leaned heavily on manufacturers in India to produce billions of doses reserved for lower-income countries. But India has restricted vaccine exports to supply its own population. IP simply isn’t restraining vaccine production.

Busting patents also won’t speed up production, since it would take months for these countries to set up new facilities. Competition will increase for scarce ingredients, and less efficient manufacturers with little expertise would make it harder for licensed partners to produce vaccines.

[…]

Moderna has been working on mRNA vaccines for a decade. Covid represents its first success. Ditto for Novavax, which has been at it for three decades. Small biotech companies in the U.S. have been studying how to create vaccines using nasal sprays, pills and patches.

Thanks to Mr. Biden, all this could become the property of foreign governments.

 

Analysis of Supreme Court’s Ruling on Google’s Copying of Oracle’s Computer Code

“A battle of Big Tech giants came to an end this week when the Supreme Court decided Google v. Oracle, the biggest copyright case in decades. The decision in favor of Google, which copied over 11,000 lines of Oracle’s computer code when building its Android operating system, will set the standard for copyright protection of code in the Digital Age. Our panel of intellectual property (IP) experts discuss and critique the Court’s decision and Justice Thomas’s dissent, as well as the decision’s likely impact on IP law, innovation, and the software industry.”

A panel consisting of Adam Mossoff, Professor of Law at Antonin Scalia Law School, George Mason University; Zvi Rosen, Assistant Professor at the Southern Illinois University School of Law, and Steven Tepp, President & CEO of Sentinel Worldwide, moderated by Curt Levey (moderator) of the President of the Committee for Justice analyzes the meaning of this ruling.