A Fix For The Regulatory State

In doing research for my manuscript of “The Law of the Bureaucrat: How an Incompetent Virologist Nearly Destroyed America,” I have been digging through the history of the various federal “health” bureaucracies. They all seem to have found their genesis in America’s rapid expansion after the Civil War. That era had loosely governed territories, poor communications, and lots of hucksters willing to take advantage of an uninformed populace. Add to that the poorly developed state of medical science and patent medicines found fertile soil west of the Mississippi.

At the same time, workers on the Transcontinental Railroad were imported from China, bringing with them their favorite intoxicant, opium. They’d go to the shantytown on their day off, smoke up a pipe, and then sleep it off. Chinese laborers don’t look like white Americans, and racism reared its ugly head. The government got called in to stamp out the “yellow peril” and its culture of “opium fiends” who somehow roamed around town raping white women while simultaneously sleeping it off. As is common in mass public psychoses, facts did not matter.

In 1875, California outlawed “non-medicinal” opium. This facially neutral statute addressed a non-issue because non-medicinal use was very similar to alcohol and other intoxicants that weren’t major problems. But it had a powerful and lasting subtext: The Chinese weren’t welcome and we’d outlaw their drugs while leaving ours alone and, in that way, the major public fear about the “coolie” was addressed.

The government could now be harnessed to handle “problems.” This tactic had now been proven. All that mattered was whether you had a big enough megaphone.

Similar tactics were used to raise opposition to alcohol, patent medicines, and other apparent ills. In the early twentieth century, these reached a head with the passage of Prohibition and the creation of the Pure Food and Drug Act of 1906. The public soon realized the idiocy of prohibition and it was repealed in 1933. But food and drug regulation followed a different path. The story goes something like this.

It was widely recognized that various meats and medicines were less than sanitary and pure. So private entities began taking measures to change their processes. Heinz changed the way it made ketchup, ensuring the safety of its product in 1902. Other companies were certainly following suit. But the muckraking press (sound familiar?) was more interested in yellow journalism. “If it bleeds it leads” and we’ll print it on yellow paper so you can’t miss it.

Upton Sinclair’s book The Jungle put the evil corporations and unsanitary meatpacking front and center. William Randolph Hearst and others competed for the most lurid headlines stoking fears of patent medicines as “snake oil.” And the Heinz improvements were lost in the noise.

Never one to let a crisis go to waste, Congress eventually passed the Pure Food and Drug Act of 1906. In theory, it was a very moderate piece of legislation. It basically required accurate labeling of medicines and outlawed “adulterated” or “putrid” meats. Poisons in food and medicine were banned, with a very specific list in the law. Unfortunately, a couple of lines in the Act opened Pandora’s Box.

First, it said that “the Secretary of the Treasury, the Secretary of Agriculture, and the Secretary of Commerce and Labor shall make uniform rules and regulations for carrying out the provisions of this Act…” Then it went on to say that foods could not contain, “any added poisonous or other added deleterious ingredient.” Welcome to the Devil’s Playground.

Who determines if something is “poisonous” or “deleterious?” The bureaucrat, of course—and Harvey Washington Wiley, the chief chemist of the Department of Agriculture, did the deed. He actually did some science to determine that formaldehyde was toxic and banned it. But he did it without the involvement of Congress. He felt that the Act gave him free rein to ban whatever he wanted. The horse was out of the barn.

The Act’s language was very permissive and is found in almost every federal statute today. Congress can’t be bothered to actually look at a problem and get together on language to tightly define a task the bureaucrat is supposed to do. In short, CongressCritters wish to look like they’re “doing something” about a problem but delegate the actual “doing” to an “expert” whom they can’t be bothered to supervise. The result is regulations by the ton, all with the force of law, thanks to the Supreme Court’s Auer and Chevron decisions, both of which granted vast deference to government agencies to interpret federal statutes.

Two examples will suffice to show how evil this has become. The first is the Obama EPA’s “Waters of the US” rule. Under it, “navigable waters,” the waters that Congress gave the EPA the power to regulate, include a farmer’s pond and a ditch to direct stormwater to runoff from fields. This is obviously an over-reach, but still lawful under Auer and Chevron.

The next is the EPA’s “endangerment finding” regarding carbon dioxide. With it, the EPA can regulate CO2 out of existence, turning the planet into a desert where there isn’t enough CO2 for plants to survive. It doesn’t matter that the very idea that CO2 is a greenhouse gas has serious scientific questions. Bureaucrats said it, so they get to do what they want to destroy the energy that supplies every bite we eat.

In 1996, Congress did put some brakes on bureaucrats with the Congressional Review Act. Basically, it allows Congress to reject any sizeable regulation within certain time limits. Practicality says that very few regulations get overturned. Too many oxes would get gored. And Congress claims it has more important things to do while it works half days and takes months off.

It’s time to make it clear that Congress writes the rules, not the bureaucrats. When Wiley added formaldehyde to the forbidden list, he preserved the right of bureaucrats to be the smartest person in the room. Congress wasn’t able to properly supervise, so the bureaucrat had to do the job. And left to himself, the bureaucrat will always expand his reach. But that doesn’t have to be so.

Congress has decided that it doesn’t need to take the time to read multi-thousand-page bills before passing them, so its members cannot claim lack of time as an excuse not to take up multi-thousand-page proposed regulations for ratification. To that end, a very simple statute should be put in place as soon as possible. Every new regulation by any executive agency should be ratified by a (super-?) majority of both houses of Congress and signed by the President before becoming effective.

Don’t complain that Congress doesn’t have enough time. All that means is that they have their fingers in too many pots. By the way, rescinding regulations should not require approval. That would mean that they are not needed and is functionally the same as congressional non-approval in the first place.

The Constitution was designed to limit government. Over time it has become a behemoth that swallows up everything. Every step to take a bit back is a good one.

Ted Noel MD is a retired Anesthesiologist/Intensivist who podcasts and posts on social media as DoctorTed and @vidzette. His DoctorTed podcasts are available on many podcast channels.


Image: Cartoon celebrating Harvey Washington Wiley who led the way to the regulatory state. Public domain.

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