Yes, they are. A new report provided by Pacific Legal Foundation shows FDA has been cheating the public by allowing agency employees to write law when ONLY an “officer of the United States” has the ability to write law.
The Pacific Legal Foundation report (Click Here to download the document on the PLF webpage) starts off with this explanation of what FDA has done…
American democracy is built on the separation of powers. No branch of government has absolute power, and each serves as a check on the others. For example, although Supreme Court Justices may invalidate the laws passed by Congress and signed by the President, they can take office only after securing a presidential nomination and Senate confirmation. Only Justices who have gone through this vetting process by the other branches are eligible to issue opinions binding on all Americans.
But suppose that a Supreme Court Justice authorized his law clerks to issue opinions in their own names? What if this went on for 17 years, and no one noticed? The Constitution would not have been ratified if the Framers proposed that employees of the federal judiciary—neither appointed by the President nor confirmed by the Senate—could issue opinions that are legally binding on the public. Such a practice would render the carefully designed system of interbranch checks and balances pointless.
By the same token, the Constitution would not have been ratified if career employees in the executive branch—employees neither appointed by the President nor confirmed by the Senate—could issue final and irreversible regulations that would be legally binding on the public. Yet unlike our law clerk hypothetical, this violation of checks and balances is actually happening: Career employees in some agencies are purporting to issue binding regulations under their own name and authority.
The ONLY individual at FDA that has authority to write rules/laws is the Commissioner of FDA as that individual is appointed by the President. But…
…was NOT written by the FDA Commissioner. Instead, the rule/law was written by FDA employee “Jeffrey Shuren, Associate Commissioner for Policy and Planning“. (The rule/law author is listed at the bottom of each listing in the Federal Register.)
The above is a significantly important law, intended to protect the public and animals from Mad Cow Disease. Why the FDA handed over this authority to an “Associate Commissioner” is difficult to understand.
There are many more laws relating to food and animal feed published in the Federal Register that are authored by an FDA employee (instead of the ONLY person with authority to write law, the Commissioner of FDA).
This law – written by an FDA employee, not the Commissioner of FDA – establishes the accreditation requirements of third-party certification bodies to conduct food safety audits of foreign food entities.
Wouldn’t import food safety be a significantly important issue that required direct oversight by the Commissioner of FDA?
The rule/law below is FDA interpretation of the federal laws Food Safety Modernization Act. One significant change included within this FDA rule – written by an FDA employee – the agency suddenly changed the legal term ‘animal feed’ to “animal food” adding to pet owner confusion of pet products.
Another concerning issue of this rule/law, the FDA openly admitted the law was written with the best interests of the rendering industry in mind: “We made several revisions to this final rule, in response to comments that we received regarding the proposed rule, to affirm that the use of current sanitary food transportation best practices as described in these comments, e.g., the “Rendering Industry Code of Practice”.”
Why would it matter who wrote law?
The most significant reason is – it’s the law. The very basic principles of government in the United States requires that ONLY an elected official or appointed officer of the United States is allowed the privilege to write law. A federal agency that openly ignores this basic U.S. government principle is a rogue federal agency, operating as they will instead of abiding by (and enforcing) law as they are charged. It’s an insult to every law abiding citizen.
Another reason is every single law authored by an FDA employee instead of the Commissioner of FDA can be challenged and considered illegal in a court of law. The Pacific Legal Foundation – the organization that discovered this incredible issue – is challenging some of these issues now in courts. The laws authored illegally by FDA currently being challenged are some that hinder small business rights. But, the bigger concern (at least to me) is what if – as example – the Mad Cow Disease prevention laws are challenged because they too were not written by an an appointed officer of the United States. What if a rendering facility ignored those laws simply based on the illegal foundation they were written on? What if…all of the laws authored by an FDA employee instead of the federally required Commissioner of FDA are deemed illegal – unenforceable?
The ‘fix’ to this situation is not an inexpensive one. Each rule/law would need to be re-authored to correctly assign the proper authority (the Commissioner of FDA). And the number of illegally authored laws is massive by FDA. Per the research from Pacific Legal Foundation…
…98% of the laws/rules authored by FDA from 2001 to 2017 were done so illegally.
And this concerning investigation from Pacific Legal Foundation brings up one more concern to pet owners…AAFCO. The members of AAFCO – who are NOT appointed officers of the United States – write “Model Bills” which become law in each U.S. state. The FDA – through its Memorandum of Understanding agreement – allows AAFCO to legally define each pet food ingredient. Could every single pet food regulation be challenged or even ignored because they are not authored by the proper authority?
The Pacific Legal Foundation has received investigative assistance from Senator Ron Johnson (R-WI). Let’s hope Senator Johnson – who is the chair of the Senate Homeland Security and Governmental Affairs Committee – will help force the FDA to properly do their job and correct this massive problem.
Sincere thank you to the Pacific Legal Foundation for their investigation. Pet owners can read more about their legal investigation by Clicking Here.
Wishing you and your pet(s) the best,
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