For the past seventy-five years Congress has transferred to the federal regulatory agencies the power to govern (to legislate, to prosecute, and to adjudicate). The Constitution vests the power to make law in Congress, the power to execute the laws in the Executive, and the power to adjudicate alleged violations of the law in the Judiciary. By this massive transfer of governing power from the elected to some 220 unelected agencies of the federal government, the United States has replaced its constitutional republic with a bureaucratic oligarchy.
The Founding Fathers revered the French Enlightenment philosopher Montesquieu. In particular, they adopted the view expressed in his Spirit of the Laws (1748) that whenever government combines legislative, executive, and judicial powers in single hands, that produces tyranny in service of the selfish ambitions of men. In his Thoughts on Government (1776), John Adams explained that “a single assembly possessed of all the powers of government would make arbitrary laws for their own interest, execute all laws arbitrarily for their own interest, and adjudge all controversies in their own favor.” James Madison concurred: “The accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
It should come as no surprise to us, then, that the rule of law is so readily ignored by the unelected heads of the federal agencies when it interferes with their political objectives. When Congress enacts new law to alter the chosen course of an agency, often the agency blithely ignores the statute and proceeds with its own regulatory agenda. That lawlessness frequently encounters little resistance. Even when challenged, the action is ordinarily upheld unless the federal court makes a rare finding that the statute is unambiguous in every material particular and that the agency interpretation is patently unreasonable. In most instances, the federal court finds the statute ambiguous in some material respect and then defers to the agency’s interpretation of it so long as there is some conceivable way to hold the rule in question intelligible.
In short, the rule of the regulators is almighty, unavoidable, and largely determinative regardless what the Congress does, the President thinks, or the courts rule. Indeed, in those rare instances when federal courts do hold an agency action unlawful (either as a violation of the Constitution, the agency’s enabling statute, or a violation of the Administrative Procedure Act because it is arbitrary and capricious), the agency ordinarily either ignores the decision entirely, makes an anemic gesture at compliance, or circumvents the decision by issuing new regulations that bring about the very same regulatory end.
Years ago the United States Court of Appeals for the D.C. Circuit held the cable “must carry” rules unconstitutional. The Federal Communications Commission simply rewrote the rules to require cable systems to negotiate a yearly payment to broadcasters if they failed to carry broadcast signals on their first tier of programming. The economics went in the other direction. The broadcasters wanted access to the first tier and the cable companies were desirous of eliminating that access for all except highly popular broadcasters. Under the “must carry” rules FCC demanded carriage on the argument that free over the air television was a public interest necessity (as if there were not a plethora of comparable content on the cable systems) and that local programming was of public interest importance. The D.C. Circuit held the confiscatory action of the FCC unconstitutional under the First Amendment. Undaunted, FCC just rewrote the rule to effect the same result but on different grounds. That latter rule, with us to this day, was upheld as constitutional by the D.C. Circuit.
In response to an overwhelming public demand that the Food and Drug Administration cease its efforts to restrict the availability of dietary supplements in the market and end its censorship of scientific information concerning them, Congress passed the Dietary Supplement Health and Education Act. As Former FDA Chief Counsel and Harvard Law professor Peter Barton Hutt explained, FDA Commissioner David Kessler refused to implement the law. “Kessler was so infuriated by the enactment of DSHEA . . . that he ordered FDA not to enforce the new law . . . . Kessler was convinced if the law was not enforced and the worst elements of the dietary supplement industry were allowed to run wild, Congress would repeal the law.”
One part of the DSHEA prohibited FDA from classifying as labeling peer reviewed scientific literature. The intent was to permit that literature to enter the commercial marketplace so that consumers could be edified concerning disease risk reduction and treatment effects of nutrients in foods and supplements. FDA loathed that provision. A captive of the pharmaceutical industry, FDA feverishly regulates to prevent nutrient-disease information from reaching the public so the public regards FDA approved drugs as the only means to treat disease. Although the plain and intended purpose of the section was to liberate scientific literature so it could reach consumers, the FDA decided to circumvent the law. The FDA explained to regulatees that even if scientific literature containing nutrient-disease information were to satisfy the requirements of the statute for exemption from labeling, the FDA would still prosecute any company that distributed it and also sold a nutrient mentioned in the literature. It would do so on a different legal theory. The FDA decided that distribution of the science to consumers was “evidence of an intent to sell a drug.” In other words, even if the statutory exemption applied, FDA would block the information from reaching the public on the theory that the nutrient-disease content revealed an intent on the part of the manufacturer to sell the nutrient as a drug, thus making the nutrient an illegal unapproved new drug by operation of law.
After meeting with drug lobbyists for the makers of Sudafed and Primatene Mist, Drug Enforcement Administration Administrator Michele M. Leonhart changed her original position favoring elimination of all ephedrine and pseudoephedrine containing cough and cold remedies from the market and decided to eliminate all except Sudafed and Primatene Mist. She embarked on a campaign to revoke the licenses of independent distributors of competing brands that continues to this day. Over sixty companies have had their DEA licenses revoked since the start of this campaign. The Controlled Substances Act called on her to set a national quota for importation of ephedrine to mirror legitimate demand. Relying on a biased expert who lacked a Ph.D. in any subject, including statistics, she adopted statistical reports drafted by that person which supported the statistically and intellectually indefensible position that any sale of ephedrine or pseudoephedrine containing cough and cold remedies beyond approximately $14 a week from any convenience store in the U.S. was illegitimate (meaning, it necessarily would be diverted to use in the making of methamphetamines). She also set the ephedrine national quotas based on this same kind of illogical reasoning so that they would enable the makers of Sudafed and Primatene Mist to remain in business but would choke the supply of ephedrine to their competitors. Although her actions were contrary to any good faith interpretation of the statute, she proceeds in this way because it furthers her own interest.
These are but a few examples of the abuses that commonly take place in the all powerful regulatory agencies. The abuses are almost never checked by the actions of the President, the federal courts, or the Congress. They go on year after year and the failure to force legal compliance leads to an arrogance of power within the agencies that is equivalent to that once inspired absolute monarchs to deprive people of their rights. It brings to my mind that marvelous poem entitled “Authority” by the Victorian author and poet Samuel Butler (1835-1902):
And makes mere sots of magistrates;
The fumes of it invade the brain,
And make men giddy, proud, and vain;
By this the fool commands the wise,
The noble with the base complies,
The sot assumes the rule of wit,
And cowards make the brave submit.
The rule of law essential for the preservation of freedom and justice has no sure footing in the federal regulatory agencies. It exists only if it supports the objectives of the agency heads. The bureaucratic state has introduced an authoritarianism antithetical to the Founders’ republic. The common method of regulation, prior restraint, violates the liberties of all regulatees on the supposition that a course of action may invite choices that disserve regulatory objectives (despite the fact that the course may also invite choices that do not). The overall effect is to limit opportunity, increase cost, and disserve competition. The common method of agency adjudication is before administrative law judges within the agencies who view their power as limited by the enabling statutes, regulations, and policy determinations of the agency. Consequently, if a party challenges a regulation as unlawful either because it conflicts with a statute or with the Constitution, the administrative law judges ordinarily either deny the challenge on the merits or refuse to entertain it.
Moreover, administrative “courts” ordinarily permit the government to introduce any evidence desired, regardless of its relevance, prejudicial effect, or probative value. Contrariwise, they often restrict the admissibility of evidence from regulatees. Administrative “courts” often prohibit discovery against the government agency yet permit virtually unlimited discovery of the regulatee by the agency. In short, administrative law greatly favors the administrative state. Appeals from administrative proceedings to the federal courts ordinarily may not include content excluded before the agency. Consequently, the agency’s restrictions on admissible evidence lock the regulatee into an evidentiary universe that favors the agency.
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We will never restore the Founders’ republic and the rule of law in America until we humble the administrative state, reducing it to the role of a mere ministerial functionary to enforce the laws of Congress and the rightful execution of the laws by the President. In the first instance, we must end the delegation of governing power from Congress to the agencies. In the second, we must cause all regulations not approved by Congress in the way in which the Constitution designates for the making of law to be rendered void. In the third, we must limit the agencies to enforcing the law, denying them rulemaking authority. In the fourth, we must eliminate the administrative courts, ensuring that all are tried before an independent judiciary. Without the foregoing reductions in the administrative state, we will not be able to resurrect our Constitution of liberty, civil liberties will increasingly vanish, and we will not be able to liberate the market to achieve new heights of industry and improvement.
© 2011 Jonathan W. Emord - All Rights Reserved