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Thread: Study finds 98% of FDA rules unconstitutional

  1. #1

    Study finds 98% of FDA rules unconstitutional

    Study finds 98% of FDA rules unconstitutional


    Ninety-eight percent of the rules issued recently by the U.S. Food and Drug Administration were unconstitutional because the bureaucrats who created them lacked authority, a new study finds.

    The Pacific Legal Foundation, which conducted the research, also found that nearly three-fourths of the rules from the Health and Human Services Department, 71 percent, are unconstitutional, based on who finalized and issued them.

    The majority of unconstitutional rules were from the FDA.

    “Among substantive final rules considered to have a significant regulatory impact by the Office of Management and Budget, 80 from the FDA were unconstitutional – 93% of all substantive and significant HHS rules,” the study found.

    The study looked at 2,952 rules from HHS over a 17-year period from 2001 through 2017.

    Most came from those “low-level officials and career employees who lack constitutional authority.”

    “Such rules are unconstitutional,” the report said. “The Constitution requires that significant government decisions must be made solely by ‘principal officers’ appointed by the president after Senate confirmation. Issuing a regulation with the force of law is one of those actions that only principal officers can perform.”

    Report co-author Thomas Berry, an attorney at Pacific Legal Foundation, argued that in a democracy, “those who make the rules need to be accountable to the people.”

    “That’s why the Framers included the Appointments Clause in the Constitution,” he said. “Only properly appointed officers in the executive branch may issue regulations that are binding on the public. This preserves democratic accountability for significant executive branch actions.”

    One example is the “deeming rule,” which classifies tobacco-free vaping products as tobacco products. “The rule prohibits Steve Green, a California vape shop owner, from telling his customers his story about using vaping to stop smoking and recover from early signs of emphysema,” PLF’s report said.

    “Among the hundreds of illegal FDA rules, 25 rules were classified as significant because they had an impact on the American economy of at least $100 million or had other significant economic impacts,” said Angela Erickson, PLF’s strategic research director and study co-author.

    “Congress and the White House should ensure that this practice ends and agencies comply with the law.”

    Another example is that because of the FDA, “dairy farmers such as Randy Sowers of Frederick County, Maryland, cannot call their skim milk ‘skim milk’ without first adding artificial vitamins,” PLF’s report said.

    “Congress needs to ensure that rulemaking under statutes it enacts is exercised solely by democratically accountable officers – principal officers nominated by the president and confirmed by the U.S. Senate. It can do so by using confirmation hearings, appropriations bills, and regulatory reform legislation. Congress also needs to expressly prohibit delegations of rulemaking authority from Senate-confirmed officials to career bureaucrats.”

    The president also could help, the report said.

    “The president can act on his own. With a stroke of his pen, he can and should order his senior appointees to take personal responsibility for regulations issued during his administration.”

    One of President Trump’s goals in office was to eliminate unnecessary federal rules, and he has exceeded expectations.

    “The current administration made a serious commitment to reduce the regulatory burden, and numerous members of Congress from both parties share this goal. For these reform-minded leaders, ending the unconstitutional practice of delegating authority for issuing final rules should be a top priority,” the report said.

    “The growing thicket of red tape created by countless federal regulations stifles American economic growth, wages, and job creation,” PLF said. “It raises prices, limits consumer choice, and restricts individual liberty. The toll on economic growth alone is significant. From 1980 through 2012, regulations cost Americans $4 trillion in economic growth – $13,000 per person.”

    https://www.wnd.com/2019/05/study-al...S4YviPGGhRp.99
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    "No one is useless in this world who lightens the burdens of another.” ~ Charles Dickens



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  3. #2
    “The Constitution requires that significant government decisions must be made solely by ‘principal officers’ appointed by the president after Senate confirmation. Issuing a regulation with the force of law is one of those actions that only principal officers can perform.”
    Anybody got a link to that part of the Constitution? I can't find it.
    "There is always a tweet. That has become accepted fact in the Trump presidency: For every pronouncement the President makes, there is at least one tweet from his past that directly contradicts his current view." -CNN

    I am Zippy and I approve of this post. But you don't have to.

  4. #3
    Quote Originally Posted by Zippyjuan View Post
    Anybody got a link to that part of the Constitution? I can't find it.
    From the executive summary of the report:

    The Appointments Clause: Making Our Rulers Accountable to the People

    The U.S. Constitution requires executive branch offi- cials who exercise significant authority and discre- tion to be formally appointed in a manner the Appointments Clause specifies in Article II, Section 2. All principal officers must be nominated by the President and confirmed by the Senate before they are appointed. Inferior officers must undergo the same process unless Congress by law authorizes their appointment by the President or a department head. The Framers specified these appointment rules to ensure that all high government officials who exercise significant power over us would be accountable to the people in a meaningful way. The Supreme Court established 43 years ago that rulemaking was one of those significant powers that only democratically accountable officers appointed in this manner could exercise. Rightly so.

    Permanent career staff in regulatory agencies have important jobs, but they are not democratically accountable to the people in this manner. They shouldn’t be issuing regulatory law that governs us. Their rules simply aren’t valid.

    Here is Article II Section 2:



    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

    He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

  5. #4
    Quote Originally Posted by timosman View Post
    From the executive summary of the report:




    Here is Article II Section 2:
    So no link to it in the Constitution. Thanks.
    "There is always a tweet. That has become accepted fact in the Trump presidency: For every pronouncement the President makes, there is at least one tweet from his past that directly contradicts his current view." -CNN

    I am Zippy and I approve of this post. But you don't have to.

  6. #5
    Quote Originally Posted by Zippyjuan View Post
    So no link to it in the Constitution. Thanks.
    Try Wikipedia - https://en.wikipedia.org/wiki/Appointments_Clause

  7. #6
    Quote Originally Posted by timosman View Post
    It does not say lesser government employees cannot make any rules. It only covers how they may attain their jobs- not what they may or may not do as part of those jobs.
    Last edited by Zippyjuan; 05-15-2019 at 02:41 PM.
    "There is always a tweet. That has become accepted fact in the Trump presidency: For every pronouncement the President makes, there is at least one tweet from his past that directly contradicts his current view." -CNN

    I am Zippy and I approve of this post. But you don't have to.

  8. #7
    Quote Originally Posted by Zippyjuan View Post
    It does not say lesser government employees cannot make any rules. It only covers how they may attain their jobs- not what they may or may not do as part of those jobs.
    This was covered by Buckley v. Valeo

    In Buckley v. Valeo, the Supreme Court held that only those appointees "exercising significant authority pursuant to the laws of the United States" are "Officers of the United States," and hence it is only those who exercise such "significant authority" who must be appointed by a mechanism set forth in the Appointments Clause
    Does "issuing a regulation with the force of law" constitute a "significant authority"?
    Would you argue it doesn't?



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