Tuesday, September 26, 2023

The Quest for Legitimacy in Elections

Second of 13 parts 

In part one of this series, we noted some of the challenges posed to honest elections.  

So what to do?  How to stop this cheating?  How to maintain, or regain, legitimacy?  The only surefire way to beat vote fraud—including the digital-age trick just adding numbers to vote totals via tech manipulation —is to count the votes on the way in.   That is, know how many votes formed the input, and then compare that to the officially reported output.   To put that another way, the idea here would make for a second count—which is actually a first count, prior to/at the time of the voting, the second count being the official tallying of the voting.  

The point is simple enough: If the number of votes that go into the system (the aforementioned input) is a mystery, then the votes that emerge from the system (the output, the reported results, from the official vote-counters) will be, by definition, equally mysterious.  Has the throughput changed on its way from input to output?   There’s simply no way to know if the input is unknown. 

So the only answer is to know the input and follow it, as it were, the “pig” as it goes through the “python.”  So who would do this first counting, this pre-counting?  Most likely, for the sake of Republicans, it would have to be the Republican Party, or Republican campaigns, or some other group working closely with the GOP.  The first-counters, of course, would also presumably be the Get Out The Voters (GOTV).  Campaigns and parties are getting good at figuring out who their voters are—all this granular digital tech is paying off.  So the essence of GOTV nowadays is fine-grained relationship management and motivation: Knowing that John Smith is a likely Republican voter, the campaign does its best to get John Smith to vote and knows whether he did or not, and will stay on Smith until the last possible moment to get him to vote. (The issue of the secret ballot leaves a little bit of mystery, and we’ll get to that.) 

We might think of this counting idea as a dual-key system.  The official vote-counters have one key, and that’s the legal key of the state machinery. But the unofficial voter-counters have the other key—and that’s in the possession of the campaigns.  And while the campaigner’s key has no legal force, it does serve as a metric. The goal is to use the unofficial key to check, and keep honest, the official key.   And yet to have effect, the unofficial key needs to be as transparent, or bulletproof, as possible.  That is, if Republicans assert that X-number of GOP votes went into the system, they have to be able to document that that number did, in fact, go into the system.  Otherwise, they have no credibility.  Claims without proof can be dismissed as just more campaign hype.  So the answer, of course, is that Republicans need to know who their voters are, and identify them, and count them.  

So by definition, it can’t be a secret ballot, it has to be a public ballot.  Or at least a transparent ballot, viewable by the campaign and other parties, as the need might arise, e.g. an audit.  

Of course, under current law, the GOP can’t mandate a public ballot.   So the public ballot has to be voluntary.   That is, the voter would have to say, Yes, here am I, and here is my ballot, marked, RepublicanFor anyone to inspect and verify.  

So why would a voter wish to do this?  Not all would, but most would.  Why?  Because most voters, on both sides of the aisle, are perfectly happy to tell anyone how they voted.  Such externalization is function  nature of polarization, as well as social media.  And so Republican campaigns can seize on that and say: 

Mr. Smith, here’s your chance not only vote Republican, but to let everyone know you’re a Republican, and to get credit for being a Republican, and to secure ballot integrity for Republicans.  In fact, by your public act, you have just been enrolled in our GOP Gallery of Heroes.  Here’s the website where you are listed, along with all of our other GOP Heroes. 

To be sure, some voters, perhaps 10 percent, but probably less, will wish to keep their ballot secret, for any number of reasons, from personal reticence to fear of retribution.  These reticent folks should be free to stay shy.  

Moreover, there’s nothing coercive envisioned here, as to why anyone should vote, or not vote, or reveal, or not reveal, his or her ballot choice. Nor is there any sort of financial incentive: The suggestions made in this piece, and in this series, are not, in any way, about buying votes, or about offering any sort of remuneration for voting or not voting.  Instead, this idea is about giving people credit—psychic income, if they wish to take it—for how they voted.  (We will deal more with the mechanics of this in later installments.) 

Such public voting is, in fact, in keeping with the trend of our times.  As noted, social media takes away much of the mystery as to how someone voted, and all the other forms of data-mining take away even more.  It’s a safe bet that Facebook or Twitter can know, within a fine degree, how any of its active members voted (and one can apply for absentee ballots on social media).  Furthermore, voting by mail takes away the mystery even more: the mere fact that an envelope comes into a post office or voting station tells someone, at least, how the voter voted.

So again, there’s less and less mystery as to how many people vote.  So for the sake of more effective and transparent campaigns, why not just own it?  Especially if the owning of it helps assure that one’s vote is counted?  If all the Republicans in a precinct got together and announced their vote, and showed their ballot to any curious onlooker, then the world would know that, say, 1,000 Republicans voted in that precinct.  And they would expect that the vote results showed 1,000 Republicans voted. 

But if Republicans announced their votes and their vote total, would Democrats do the same?  Quite possibly not.  But that sets up the contrast: The GOP “shows its work,” while Democrats do not.  So if the GOP is transparent, and the Democrats are not transparent, what does that tell us?  

The idea is that if Republicans are completely transparent about their vote, Democrats might be forced to do the same.  And even if they don’t, it’s still useful for Republicans to have a better handle on their own vote—that’s an evolution in campaigning which, again, we will deal with later in this series.   

If the Republican vote is transparent and the Democratic vote is not, the contrast will be obvious, especially if it can otherwise be demonstrated, or at least suggested, that Democrats are somehow fiddling with, or padding, their total.  But again, if the GOP vote total is murky, then the Democratic total can be murky, and maybe nobody or nothing will be able to penetrate the murk.  That’s been the story of the last few elections, made all the more murky by the new voting modalities. 

So we keep colliding with the basic condundrum of anonymity.  Anonymity guarantees some modicum of unverifiability: If I’m holding something in my hand and I don’t know who it belongs to, how can I know for sure if it’s real?  How can I check its provenance?   If someone manages to slip in (or slip out) a crate of paper ballots, nobody can be sure what’s what, or how the voters (if there were any) intended to vote. 

We can add that, given the focus on convenience and the reliance on apps, it’s quite likely that electronic voting is the wave of the future.  Republicans will likely oppose electronic voting, but Democrats will likely embrace it.  And in many places—most obviously, California—they’ll likely be able to make their preference stick.  As we chew on that statement, we might consider the situation today: If you vote, your vote becomes a bit of electronic data; of course it can be hacked or otherwise mulcted.  That happens all the time to electronic data: Wikipedia keeps an ever-growing list of data breaches, affecting billions of files and people. 

So here’s a closing thesis-statement to consider: The ultimate solution to vote fraud is to make sure that each vote is linked to an identifiable voter.  That way, if there’s a dispute on the count, vote-auditors can check back with the voter to make sure his or her intention has been properly tallied.  

If we do this, we will regain and maintain ballot and electoral legitimacy. 

Next: The Inefficiency of Campaigns 

Saturday, September 23, 2023

Securing Elections and Good Governance, Part One

First of 13 parts

This series is dedicated to a) examining the problem of vote fraud; b) considering a possible solution; and c) further examining how improved election integrity could be a tonic for the overall political process. 

A Crisis of Confidence 

The issue of vote fraud and bad balloting continues to vex the American electorate—at least the right half.  A June 2023 poll by the Associated Press/NORC found that just 44 percent of Americans have “a great deal” or “quite a bit” of confidence in election integrity.  By contrast, 28 percent said they had a “moderate amount” of confidence, while 27 percent said “only a little” or “none at all.”  To be sure, that poll was skewed partisanly: Only 22 percent of Republicans expressed confidence, compared to 71 percent of Democrats.  

Those numbers could change, depending on who wins in 2024, and yet it seems safe to predict that whatever the results next year, big chunks of the country will view them as illegitimate.  And while the perception of illegitimacy might not be the chief concern of the winner, it should be concerning to the country.  And so we should explore ways to restore legitimacy—that’s the point of this 13-part series. 

Arizona Agonistes

We can illustrate the concern by looking at what’s happened in Arizona. The GOP candidate for governor in 2022, Kari Lake, lost the election, according to the state’s secretary of state, Katie Hobbs, by 17,117 votes, out of more than 2.5 million ballots cast.  In January 2023, the Democratic nominee—the same Katie Hobbs—was sworn in as the state’s 24th governor. 

For her part, Lake has not conceded.  She is active on Twitter, as is her “war room"; both churn out accusations of voting irregularities.  Lake says that the 2022 balloting was “botched,” that it was “incompetency 101,” that it was run like a “banana republic."  And she has filed lawsuits, and more lawsuitsJournalistic allies, too, have weighed in.  For instance, The Federalist cites numerous breaches in the “chain of custody” of ballots, as they were moved from voters to tabulators.  In a close election, any such breach could invalidate the results ethically, if not legally.  

These claims, serious as they might be, will not change the outcome of the Arizona election.  Still, they are worth examining with an eye to future elections.  Interestingly, Lake, a strong supporter of Donald Trump, has been on the bad-balloting trail for a long time.  Back in October 2022, in the midst of her own gubernatorial campaign, she was challenged by CNN to cite evidence of vote fraud in the 2020 presidential election.  Lake came right back: “Well, there’s plenty of evidence.  We had 740,000 ballots with no chain of custody.  Those ballots shouldn't have been counted.”  Needless to say, at the time, The Washington Post was horrified at Lake’s assertion.  Yet in the midst of denouncing Lake for making “false claims,” and “seeding doubt,” the Post included this admission about vote-counting in Arizona’s largest county, Maricopa: “officials acknowledge that a fifth of the forms documenting the transfer of drop-box ballots had incomplete information, including missing signatures.” We can note that Maricopa County accounts for nearly two-thirds of the Grand Canyon State’s population.  

In October 2022, Trump’s political operation released a 14-page memo summarizing his overall case on vote fraud in 2020; the document included two pages on Arizona; here’s one item: “A study of early ballot envelope signatures identified 229,430 mismatched signatures in Maricopa County”—that is, dubious ballots totaling nearly 20 times Trump’s state margin of defeat.

So when Lake says, about her own election, “53% of the polling locations didn’t work on election day,” that squares at least somewhat with election-day news reports about vote-problems in Maricopa, as well as elsewhere.   Indeed, as recently as September 19, Lake was still making investigation-worthy arguments in court filings.  

It was, after all, a close election: Hobbs’ lead over Lake amounted to just six-tenths of one percent.  Interestingly, seven cases from Arizona in 2022 feature in the Heritage Foundations’s vote-fraud database; maintained by widely published election expert Hans von Spakovksky

So now come some more allegations, including about Arizona, in the form of September 18 tweets from Rasmussen: 

Arizona: Preliminary AZ Senate Forensic Ballot Audit Findings - over 200,000 “non-conforming” 2020 ballots

Georgia: Court claim total of “non-conforming" 2020 ballots still locked up - “nearly 150,000.”

Arizona: 2020 Biden “win” margin - 10,457 “votes”

Georgia: 2020 Biden “win” margin - 11,779 ‘votes’

Rasmussen concludes: “Get-Out-The-Vote efforts, early voting, ballot chasing, political rallies and traditional political advertising are all useless if there is an alternative source of fabricated ‘votes.’”  That’s certainly a stark way of putting the matter.  And there was more from Rasmussen: “Only 1 official ballot paper type was approved in Maricopa County AZ for all 2020 election counted ballots, yet 10 types were discovered by voter-volunteers amounting to over 200,000 ‘non-conforming’ ballots that were all counted in a race Joe Biden ‘won’ by far far less.”

Do these add up  to substantive allegations?  About the only thing we know for sure is that the U.S. Department of Justice, supposedly the watchdog of national election integrity, will not be interested.  

Does the GOP have a robust plan for ballot security in 2024?  We’ll have to see.  But it is interesting that Trump himself seems to be more forceful in identifying the problem than in pointing to a solution.  In August 2023, he told Tucker Carlson, “We got many more votes in today than we did in '16, but the election was rigged.  It was a rigged election.  And with COVID, they used COVID to cheat and a lot of different things.”  The following month, speaking to Megyn Kelly, Trump added, “They used Covid to cheat, they cheat anyway. . . . throw they votes out . . . I believe they send in fake ballots.”  Trump has made such allegations, in fact, many time in the past three years. 

We can observe that while cheating and fraud are real, there are the myriad issues of identification, ballot security, proper counting—all of which fall into the gray zone of ambiguity, depending on the good faith (or bad faith) of the actors.  For instance, New York State’s determination to facilitate voting by mail has been hit with pushback from Republicans, who call it an “unconstitutional law to make voting less secure for political gain.” 

In addition, there’s the emerging trend of automatic voter registration (ARV) as just enacted by the Democratic governor of Pennsylvania.  Is this a good idea?  Former Democratic president and Barack Obama is convinced it is.  But conservative activist Steve Moore describes, critically, how ARV works out in practice: 

Pennsylvania joins almost two dozen states — almost all of them Blue — that have automatic registration.  People are automatically added to the rolls whenever they have contact with certain state agencies, including unemployment offices and welfare agencies. Sign up for food stamps and the government gives you a ballot. 

In other words, voting and politicization become inextricably tied up in social welfare.  And so it seems that the Cloward-Piven Strategy is edging closer to reality.  Is this what Republicans want?  Is this what the country should want?   And Trump weighed in, too:  

Pressure Points

To help get us our arms around the overall topic of ballots and ballot integrity, we might consider some numbers illustrating the sheer immensity of American elections:  According to the Election Assistance Commission, a federal agency, “During the 2016 elections, local election officials operated 116,990 polling places, including 8,616 early voting locations, across the country. These polling sites were operated by 917,694 poll workers.”  So that’s a lot of nodes, or pressure points, right there, any one of which could potentially fail, either by commission or omission. 

We can add, now, the tens of millions of mailed ballots—such that every home, every dropbox and mailbox, is a new node—so the number of points of potential vulnerability swells into the hundreds of millions.  Even if we assume the best of faith, it’s hard to see how to keep track of all that.  In November 2022, Trump wrote on his Truth Social website, in all caps, “YOU CAN NEVER HAVE FAIR & FREE ELECTIONS WITH MAIL-IN BALLOTS — NEVER, NEVER, NEVER.   WON’T AND CAN’T HAPPEN!!!” 

Yet mail-in ballots are here to say.   Forty-six percent of voters voted by mail in 2020.  And while “only” 33 percent did so in 2022, another 25 percent voted early, which means that barely more than two-fifths voted in the “traditional” way, showing up at the polls on Tuesday.  Most 2022 mail voters returned their ballot by U.S. mail, but about one-third returned it to a vote center or ballot dropbox.  So it’s a new world, with all the questions and mysteries inherent to a new world.  

Moreover, down the road is an even newer world, electronic voting.   Republicans might hate the idea that Silicon Valley will be more involved, but that doesn’t mean that Democrats won’t do it, starting in, say, California.  So we could see a split-screen future: blue states stay with mail-in ballots, and perhaps move to e-voting, while red states stick with paper.  We can all have opinions on this prospect, but maybe it’s best to keep a federalist perspective: This might have been what Supreme Court Justice Louis Brandeis had in mind when he wrote, back in 1932, of the states as “laboratories of democracy.”  

Of course, many will argue that the solidity and tangibility of a paper ballot is reassuring. And yet ballots of any kind still need to be counted—159,633,396 were cast in the 2020 presidential election—and that’ll take some electronics.  And with that automation in the tallying, so enters the dragon of electro-uncertainty.  


As we chew on the reality of this electro-uncertainty, we might consider the situation today: If you vote, and your vote becomes a byte of electronic data, as it must, of course it can be hacked or otherwise mulcted.  That’s what happens all the time to electronic data: It gets hacked.  Wikipedia keeps an ever-growing list of data breaches, affecting billions of files and people.  Of course, the government is not immune: One notorious victim was the Office of Personnel Management; as one official put it in 2015, “We believe that the Central Personnel Data File was the targeted database, and that the hackers are now in possession of all personnel data for every federal employee, every federal retiree, and up to one million former federal employees.”  There’ve been many hacks since, as well as related snafus.  For instance, just last year, the Securities and Exchange Commission announced that it had lost many public comments on proposed new rules—and so it would re-open the comment window. (Better luck this time, commenters!)  Additionally, the categories of “hack” and “snafu” don’t include situations where a disgruntled or treacherous worker simply steals the beans, as was the case with now-Russian citizen Edward Snowden.  

So hacking is as plain as the pixel on your screen—and just as fast moving: If you rely on an electronic activity, somebody, somewhere, can mess with it.  And quite possibly, do so without leaving any trace.   Perhaps most urgently, if voting is anonymous, then there’s no way to do a true forensic audit, because the vote has been disconnected from the voter

One might wonder: Could blockchain make things better?  After all, blockchain touts itself as guaranteeing both privacy and security.  But here’s a newsflash that shouldn’t count as news: Blockchain and the related crypto can’t guarantee either.  They, too, can be hacked.  And of course, as the case of Sam Bankman-Fried at FTX shows us, outright fraud, on a mega scale, is also possible.  It seems that for every smart person trying to figure out how to keep data secure, there’s another smart person trying to figure out how to make it insecure.

So that’s what we’re up against as we strive to keep our elections honest. 

Next: The Quest for Legitimacy in Elections

Tuesday, September 05, 2023

“The FDA is Not a Physician.” Life, Liberty, and the Pursuit of Economic Development

The Sound of Freedom

The bad news is that an ongoing court case in Texas offers a window into the workings of a not-so-benevolent health bureaucracy, more interested in having its way than in helping patients.  The good news is that this meddling is backfiring, and so the same window could light the way to genuine health reform and more personal freedom. 

The case in question concerns the U.S. Food and Drug Administration’s efforts to squelch the treatment of disease.  That’s right, the FDA has been playing national nanny, intruding between patients and their doctors.  Indeed, the agency has been proud of its efforts, basking in praise from the medical establishment and the mainstream media.  Yet this troika-combine—bureaucratic, technocratic, and journalistic elites, sharing a superiority complex—has hit roadblocks: first, popular resistance, and second, a slapdown from a high court. 

You see, the doctors that the FDA had been targeting fought back in court, mobilizing public support along the way.  And on September 1, having reviewed the case, a three-judge panel from the Court of Appeals for Fifth Circuit—which covers Texas, Louisiana, and Mississippi— declared, “The FDA is not a phsyician.”  That’s the sound of freedom, potentially, far beyond this specific case. 

The judges were responding to the FDA’s campaign of harassment against three physicians, Robert L. Apter, Mary Talley Bowden, and Paul E. Marik, all of them MDs.  The three doctors had prescribed—and, even worse in the eyes of Big Health, publicly advocated for—ivermectin as a treatment for Covid-19.  You know ivermectin: the drug the MSM routinely dismisses as a “horse dewormer,” never minding that there’s a human version of the drug (long ago described as a “wonder drug,” in fact), which has an astonishing variety of uses.  And yet in the elite view, ivermectin is the signature Covid treatment for right-wing, Trumpy people, and so it can’t be good.  According to this politicized and polarized thinking, the main goal seems to be, not maximizing public health, but rather, never giving them a win.   Yes, there’s the medical struggle against Covid, and there’s the class struggle against wrong think by the proles—and which do the elites think is more important?  

The Rule of Dogma 

We might pause to observe that organizations and interests tend to develop dogmas.  That is, some belief system that defines the institution, and imbues its adherents with a sense of mission and passion.  When such dogmas emerge in a bureaucracy, zealously believing bureaucrats can be quite insistent on getting their way. That is, the desire to win the point gets the better of any rational cost-benefit analysis.  Depending on the issue, we can like or dislike the dogma, but no matter where we stand, we should at least recognize that dogma imposed on others is the opposite of freedom.  And so it is that Dogmatic Big Health has come to oppose most Covid treatments.

Broadly speaking, liberals, Democrats, and blue states have supported masks and vaccines to combat Covid.  Indeed, four years after we first heard of the virus, masks and vaccines are still the favored “blue” approach.  By contrast, conservatives, Republicans, and red states, opposing masks and vaccines, have supported Covid treatment as might be needed. 

So we can see the conflict: In the mind of Blue, if you follow its prescription (vaccines and masks), you won’t get Covid.  And yet if you reject vaccines and masks, blue thinking does, there’s something wrong with you, and so if you get the disease, well, maybe you deserve it.  Or at least, your getting Covid will encourage the others to mask up and get vaxxed. 

At the same time, since Red mistrusts Blue, it increasingly rejects its masks and vaccines; instead, Red wants options for Covid treatment.  Without much help from Blue, Red has been searching around for the best, as well as least expensive, treatments.  Enter Drs. Apter, Talley Bowden, and Marik, who are just three of thousands of physicians, and other healthcare providers, who have been scanning, experimenting, and prescribing.   

Interestingly, one of the few Covid treatments that Blue’s bureaucratic enforcer, the FDA, approves of is Remdesivir, sold as Veklury, made by Gilead, a pillar of Big Pharma and thus trusted by Blue. Veklury’s sticker price, for the prescribed five-day treatment, is $2,340.  That’s a lot of money, although, of course, typically insurance companies, or U.S. government agencies, end up footing the bill, which is often negotiated downward.  

Yet in point of fact, Blue doesn’t mind paying big money for approved Covid treatments. The feds, after all, spent at least $3 billion on ventilators, which seem to do more harm that good, and yet nevertheless were a part of the approved orthodoxy.  Why this free spendingness?   Because Blue seems more interested in maintaining its orthodoxy: Use only the methods and treatments that we recommend.  So that meant ventilators for a while (until it became too obvious that ventilators were actually hurting patients) and now, Remdesivir/Veklury.  In this ortho-maintenance effort, the FDA is joined by liked-minded federal agencies, including the Centers for Disease Control and Prevention (CDC) the National Institutes of Health (NIH), and the major federal paymaster, the Centers for Medicare and Medicaid Services (CMS).   

These four agencies, as well as myriad public, quasi-public, and private allies, share a common view: They are correct in their recommendations, because, after all, they are the experts.  So that means treatments coming from on high are right and treatments favored by those down below are wrong, wrong, wrong, not just medically, but morally.  These lower types of treatment, to be shunned, include not only ivermectin but also hydroxychloroquine, vitamin C, and zinc—a fuller list can be found on the website C19 Early.  Interestingly, these hoped-for treatments tend to be generic drugs, or even dirt-cheap commodities; that’s one more reason why Red is so interested in them: because if it’s exploring unorthodox ideas, Red will get no financial help from Blue.  Indeed, Blue will even attack Red. 

Dogmatic Action 

Blue has been trying to crush Red, seeking to squelch the thought that Red could know what it’s doing Covid-wise.  One tool for squelching has been censorship on social media, and yet in addition, the FDA has taken to social media to deliver its own message.  Back on August 21, 2021, the FDA tweeted. “You are not a horse. You are not a cow.  Seriously, y’all.  Stop it.”  And then the FDA linked to an extended statement, headlined, “Why You Should Not Use Ivermectin to Treat or Prevent COVID-19.”  The agency also Instagrammed  the same message. 

Yet FDA was not content with just exhortation.  It actively wanted to kibosh the careers of visible opponents. The intensity of that campaign is seen in the case of the three docs, Apter, Talley Bowden, and Marik.  Reporting on the legal proceedings, Courthouse News summarized the agency’s effort on September 1, “The FDA’s campaign caused [the three doctors] problems: A major Houston hospital system forced Talley Bowden to resign her privileges; Apter was referred to physician regulatory boards of Arizona and Washington state for discipline; Marik was forced to resign from his post at Eastern Virginia Medical School, where he was a medical professor and chief of pulmonary and critical care.”  

Okay, so that’s some heavy kiboshing.  The FDA has, in fact, operated that way for a long time.  However, in our time, the forces of opposition—the forces of freedom—are more organized, more articulate, and, thanks to the internet, more able to do its own research and to share ideas.  Also, crucially, resistors have been more able to draw upon legal resources.  So the three doctors found legal counsel from Boyden Gray PLLC, the law firm founded by the late C. Boyden Gray, a well-known figure in conservative legal circles, whom I eulogized here.  Gray served as counsel to George H.W. Bush during his eight years as vice president, 1981 to 1989, and his four years as president, 1989-1993.  From that vantage point, Gray participated in all the great legal-policy events of those dozen years, including the epochal Senate confirmation fight of Supreme Court Justice Clarence Thomas.  Another positive Gray legacy, germane to any issue concerning the FDA, is the C. Boyden Gray Center for the Study of the Administrative State, a unit of the Antonin Scalia Law School at George Mason University.  Thanks to Gray and many others, the public’s understanding of the so-called “fourth branch” of government—the alphabet soup of regulatory agencies—has improved in recent years, and much of that new understanding is critical and reform-minded.  How did these agencies, including the FDA, get to be so powerful, and what can be done to make them operate within constitutional metes and bounds?  All important questions, in need of further debate and deeper understanding.   

In other words, the Gray firm was the perfect choice to represent Drs. Apter, Talley Bowden, and Marik in their fight against the FDA.  The plaintiffs had originally filed suit against the agency in June 2022, objecting to its campaign of harassment against them, but in December of last year, a U.S. District Court judge dismissed accepting FDA’s claim that it was immune from such suits.  But then, in February 2023, with help from the group America’s Frontline Doctors, Gray took on the case, seeking to reinstate the lawsuit.  And so on September 1 came the ruling from the three-judge appeals court panel, the honor roll consisting of Don R. Willett, Edith B. Clement, and Jennifer W. Elrod.  In deciding that the doctors’ suit could continue, the judicial trio opined, “FDA is not a physician. It has authority to inform, announce, and apprise—but not to endorse, denounce, or advise. The Doctors have plausibly alleged that FDA’s Posts fell on the wrong side of the line between telling about and telling to.”  

In the words of mask- and vax critic Dr. Jay Bhattacharya, “A big loss for the @US_FDA, which overstepped its authority and competence during the pandemic.” In fact, there’s more at stake here than just a single legal case, important as that case is.  Bhattacharya went further, tweeting, “Public health officials, in their ridiculous and anti-scientific messaging & policies about the covid vaccine, all but guaranteed that a substantial portion of the public would lose trust in public health officials and in vaccines more generally.”  That’s the real import; people no longer trust Big Health to make decisions for them.  To put it another way, the fundamentals of official medical expertise and public trust are out of alignment, and that means, in a democracy, that there will have to be a realignment.  That is, a new political settlement based on this changed understanding of governmental legitimacy. 

We can see this larger and more profound potential in those words of the appeals court, FDA is not a physician. There’s a heckuva thought there, the idea that the FDA does not know more about treating you than does your doctor—or maybe you yourself.  It might seem obvious that doctors and patients know more about localized facts than some distant bureaucracy.  Indeed, in this era of personalized medicine, aided by big data and all the other advanced techniques, it’s all the more obvious that FDA is an inferior source of knowledge, especially about an individual’s unique medical situation.  And yet the law—including the sneaky accretion of law that is the essence of the administrative state—says otherwise.  According to the current regime, the FDA knows better, for all 335 million of us, and it must be obeyed.  

Yet of course, many disagree, and those disagreers are now organized, to wit, the Apter-Talley Bowden-Marik lawsuit, which has been closely covered by many journalists, including Emily Miller, who has written about this case with passion, as well as professionalism.  “This case has broad implications for protecting the practice of medicine from unlawful interference by the FDA,” said Jared Kelson, a lawyer with Gray, speaking after the judges’ ruling.  “It’s about ensuring that federal agencies act only within their statutory authority. The FDA crossed a bright line here.”  

A New Order for the Age

We’ll have to see how this particular legal case unfolds, but this much we know already: A big chunk of the public mistrusts the FDA/CDC/NIH establishment.  For instance, a poll from last year found that just 44 percent of Americans trust what the CDC has been saying about Covid.  To be sure, polls can be all over the place, depending on how the questions are worded and the reliability of the pollster.  Wisely, the country is not governed by polls, but rather, by the Constitution.  And the Constitution allows for plenty of freedom and diversity, both for individuals and states.  Fully exercising that freedom, Americans across the 50nstates have widely diverse opinions on, for instance, former NIH official Dr. Anthony Fauci; some admire him, others revile him.  That’s freedom for you.

The Constitution should, indeed, be a bulwark against the one-size-fits-all bulldozer of the federal government’s administrative state.  At the same time, the Constitution should provide protection for heterodox opinion, including on medical matters.  Here we can learn from Supreme Court Justice Oliver Wendell Holmes, Jr. who wrote famously in 1929, “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”  That’s the sometimes uncomfortable essence of free speech: If it’s really free, it includes the speech we hate

So now, why shouldn’t the same principle apply to medicine?  Why shouldn’t doctors be free to prescribe what they think best for their patients?  Why shouldn’t patients themselves be free to choose what they see to be the best path?  And if someone else thinks that path is abhorrent, well, here’s where that Holmes quote comes in.  Just as with free speech, free medicine might well include things we hate

To be sure, the larger society has rights, too.  And there are tried-and-true methods for protecting public health and the community, based on common law, as well as, of course, the Constitution.  But as to the individual and his or her doctor, there are privileges and immunities that should always be protected.  And if, in fact, they haven’t been protected in recent years and decades, then they need to be restored.  

That’s what could be happening in Texas now.  And if the fate of the court case is uncertain, the Texas state government could step in, enacting a law to protect the liberty of doctors and patients.  There’s no reason why Texas should bow down to the diktat of the FDA or any other dubiously constitutional element of the administrative state.  

And of course, states other than Texas could stand up for themselves.  Plenty of other states could seize the moment to instantiate the principle: FDA is not a physician. The result would be profound, albeit not completely new.  As Thomas Jefferson said, We don’t need new ideas, we simply must rediscover the American mind.  

In such a rediscovery, we would see the proper reassertion of federalism, the self-determination of the states within the federal union.  Some states, perhaps many, would choose to keep the FDA in charge of their medical and entrepreneurial destinies, exactly as today.  To borrow a phrase, If you like your FDA you can keep it.  Same with CDC, and its rules.  This country is, after all, diverse, and so the rights of blue states, as well as red states, should be protected.  If Blue prefers the status quo, so be it.  However, Blue shouldn’t be able to impose on Red, and vice versa. 

As for the forces of medical freedom—which is also personal health freedom, and entrepreneurial freedom—they don’t need to win everywhere. They just need to win somewhere.   Perhaps in Texas, perhaps in some other state, or states.  And if so, then the next grand experiment in federalism—the states as laboratories of democracy--will commence.   

Such experimentation could and should extend far beyond Covid.  Patients and doctors working to combat every malady know about the wet blanket—more often, the dead hand—of the FDA.  And so they all, too, would benefit from a new era of freedom.