The FDA’s lawyer has staked out a clear line in the sand when it comes to government officials deceiving Americans: bureaucrats can lie to you with impunity, and even if their lies result in terrible harm including death they cannot be held responsible.
It’s a less absurd legal theory than you might imagine. Government officials harm innocent people all the time without consequences and as long as they can plausibly argue that they did so while doing their jobs, no amount of malice or negligence renders them responsible for their deeds.
Think of civil forfeiture cases. A government official discovers a ton of money in your luggage. They can assert with absolutely no evidence that it is the proceeds of a crime and simply take it from you. If you succeed in proving beyond a reasonable doubt that it was not, you may get it returned to you years later, or you may not. But the burden of proof is on you, and nobody pays a price if they were wrong.
Government officials, in other words, can legally steal your stuff.
The case against the FDA in which the lawyer made the case for absolute sovereign immunity for government officials’ speech involves three doctors suing the FDA for its denigration of Ivermectin as a viable treatment for COVID and the FDA’s tweet that the doctors say interfered with their ability to care for patients and eventually led to the termination of employment.
The FDA has no authority to direct doctors to use or not use an approved pharmaceutical in their practice, once the drug has been deemed safe. That authority belongs to the medical practitioner. In today’s hearing the FDA lawyer acknowledged that doctors are and were always free by law to prescribe the drug and that they never intended their disparagement of the drug as a treatment to be taken seriously or as a command.
That’s clearly not how most people took it, including the medical establishment. Doctors who prescribed the drug could be drummed out of the profession as quacks and purveyors of misinformation.
A lot of people are pointing to the FDA’s admissions as proof that Ivermectin is a safe and effective treatment for COVID, but that isn’t actually the case. Instead, it is an admission that the FDA has no say in the matter at all, as the drug has not come before the FDA as a treatment for COVID and they have no reason to have an opinion. Nor did they have the authority to give one.
1) FDA Attorney Ashley Cheung Honold Now Says Doctors Did Have the Right to Prescribe Ivermectin Off-Label for COVID-19
“Here FDA was not regulating the off-label use of drugs…The FDA explicitly recognizes that doctors do have the authority to prescribe Ivermectin to treat… pic.twitter.com/o7EFT05vDC
— Chief Nerd (@TheChiefNerd) August 8, 2023
To me what is interesting about the case is not any revelations about Ivermectin, because there really were none to speak of. An FDA lawyer is hardly the person to hand out information about the effectiveness of any particular medication.
No, what strikes me is the claim that government officials can say anything they want and harm anybody in any way and not be held responsible at all legally.
It took quite a while for the judges to pin the FDA down on the scope of their claim to sovereign immunity, which apparently appears to be plenary. No matter what a government official says, no matter how irresponsible, negligent, or even malicious it is, the FDA asserts that said government official is immune as a government agent.
3) FDA Attorney Ashley Cheung Honold Says the FDA Does Have the Power to Issue Medical Advice
JUDGE: “Does it matter whether they are scientific views or not…or whether they are just views?”
HONOLD: “There’s nothing in the multiple sources of authority that I cited that… pic.twitter.com/WSUDDPyUUp
— Chief Nerd (@TheChiefNerd) August 8, 2023
There is so much wrong with this theory of sovereign immunity, although not one bit of it is inconsistent with how government operates. Note that the FDA has zero authority to give medical advice in the first place, yet that didn’t stop them from doing so. It also has no authority to tell doctors how best to use approved pharmaceuticals, yet it did so. The advice they gave was arguably wrong–there is conflicting evidence out there about whether the drug is effective, although no evidence that it is particularly unsafe. Especially compared to drugs that are promoted for use in COVID patients.
Yet the FDA did these things, cost people their jobs, and smeared the reputation of a lifesaving drug that is on the UN’s list of most important drugs ever invented, and for which the inventor won a Nobel Prize. In all likelihood, lives have been lost due to this smear campaign.
To which the FDA responds: “So what? We can do what we want without consequence.”
I have no idea how this case will be decided, and I fear that the government’s legal case is not nearly as weak as its moral case. That is up to the judges.
But at the very least it tells you how the government views its relationship with its citizens: they do what they want, you sit back and like it.
