So It Was Writ
I was horrified to learn that a federal judge has recently ruled that the powers of the Food and Drug Administration (FDA) to protect me from myself have been clipped because of a law that was passed ten years ago. Ten years! There are children alive now who weren’t even born then! How could the exercise of coercive power be limited by such an old law?
The outrage was from the same magazine that has bitterly complained that judicial nominee Janice Rogers Brown “takes the view that judges should show no deference to legislatures.” Now we learn that the legislature and the judiciary should defer to unelected and virtually unaccountable appointees of the executive branch, who exercise a heady and indubitably necessary mixture of legislative (rule-making, i.e., law making), judicial (interpretative and adjudicative), and executive (enforcement) powers. After all,
We in this country have created, staffed, and funded expert scientific and regulatory agencies like the FDA for a reason: So that they can use their professional judgment to determine how to protect the public from risks.
This case, in which the power of “professional judgement” has been limited by a law of such ancient provenance reminds me of nothing more than the outrage that a great political philosopher, Albert Gore, showed when it was pointed out that he had violated an “1882 law” that prohibited soliciting donations for political campaigns on federal property. No one had gone to jail for it (maybe because it was so clear and explicit?), so there was “no controlling authority.”
Next thing you know, they’ll be talking about that hundreds-of-years-old scrap of paper some people “the Constitution”!
Excellent post.
The article by Mooney is great, not because of the idiotic point he is trying to make, but because it is so revealing of the workings of the left-wing mind. First, even though the law was passed by a Democratically-controlled congress and signed into law by a Democratic President, it turns out that it’s really the Republicans who are to blame because of a general deregulation mania that was apparently sweeping the nation at the time. The other wonderful tidbit is how Mooney is absolutely horrified that the judge in question actually interpreted the law as Congress probably intended, rather than wisely deciding to ignore the plain language of the law and ruling in favor of the FDA. Sheesh!!!
Well, come on Tom, this is a law that dates from a whole other millennium. Next you’re going to insist on invoking the Magna Carta and the Bill of Rights and Marbury v. Madison and… um… hang on…
In all seriousness it’s surprising that this author is so angry about a judge applying a statute. Even the most ardent statists usually say that the law in question is bad and should be amended. Just plain ignoring the law of the land isn’t something most people advocate openly.
– Adam
Interesting quote below from GK Chesterton on the limits to democracy, in relation to tradition and established (common) law.
Chesterton understood that a tradition endures for a reason:
“Tradition may be defined as an extension of the franchise. Tradition means giving votes to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death. Democracy tells us not to neglect a good man’s opinion, even if he is our groom; tradition asks us not to neglect a good man’s opinion, even if he is our father.”
[Note: Obviously the idea can be taken too far. Chinese traditions would dominate in a world democracy of both the living and the dead.] – Greg Rehmke
John Sabotta has some interesting things to say about the law at No Treason this week. Excerpt:
“Because those are the only two choices on the table, here: either government law is in fact the arbiter of right and wrong, or it is not. If it is, then the government of the United States can rightfully pack up every person it wants to into cattle cars and stuff them into the ovens — as long as the paperwork is correct. If government law isn’t the arbiter of right and wrong, then the arguments about what “the law” purports to authorize are meaningless for determining what ought to be done.”
I think I’m missing something…. I don’t see where the author of the piece is criticizing the judge at all. Note the following quotes:
“And the legal decision gets even worse (in the sense of being entirely faithful to a terrible law).”
“Utah District Judge Tena Campbell was simply applying the wrongheaded standards encoded in the DSHEA.”
“But under the peculiar and misguided law that the agency must follow in dealing with dietary supplements . . . .”
“[C]ourts are forced (by law) to second-guess whether its actions can be reconciled with congressional intent.”
“Congress, catering to the supplements industry, bears responsibility for creating this mess. Now it should step in and come up with a fix.”
So, sure, the author calls the ruling “disturbing,” but just because, in his view, it’s a faithful application of bad law. Nowhere do I find him suggesting that the judge should have ruled the other way. All he seems to be saying is that the ruling shows how awful the 1994 statute was. And, rather than saying the judge should have gone the other way, the author explicitly puts the burden on Congress to “fix” the situation.
In particular, I don’t find this inconsistent with any outrage over Janice Brown’s views on deference to legislatures. That’s an entirely different issue: Brown’s views relate to whether courts should hesitate before striking down Congressional enactments as unconstitutional. This case is about whether courts should follow the law as written. In this case, the author (who possibly thinks, or at least writes for a magazine whose editors think?, courts should defer to legislatures on constitutionality) also thinks courts should apply the law as written, but reserves the right to criticize the law as being absurd and inconsistent with a proper view of public health.
Nor do I find any hint in the article of outrage that the law restricting the FDA’s powers is 10 years old. Am I misreading you there, Tom?
A concluding note: I think it’s appropriate to criticize the author for his policy views. The 1994 law, insofar as it limits the FDA’s authority, was good. Public health doesn’t require a nanny state, and to the extent it does, it shows more than anything else the defects of the goal of public health. But I think it’s a mistake to read this author as suggesting the judge should have acted any differently, or as suggesting the judge should have ruled in favor of “public health” by ignoring a Congressional enactment.