I’m not sure what you’re asking, but you’re still suffering from some misconceptions. The FDA’s regulatory actions can not be interfered with by the President, because Congress set it up that way. There are similar laws protecting some other executive regulatory agencies from executive interference. But the vast majority of the executive bureaucracy is under the President’s control, also because Congress set it up that way.
The President’s subordinates in the executive bureaucracy have to follow his lawful orders, but the extent of their powers is determined by Congress. The President can order FEMA to take command over the response to a natural disaster, because Congress has legislated that FEMA can do that at the President’s discretion. The President can not tell HHS to implement his universal health care plan, because that is not among the powers granted to that department via legislation. (There’s also the fact that Congress has not allocated any money for the effort.)
Ok. So there is a portion of the executive branch that the law protects from the president’s interference, and the FDA is part of that portion. Then we’re on the same page? My ENTIRE point was that the president’s influence on even executive branch departments was limited in many cases by what laws were in place to regulate what he can do with the various departments, and what the laws allow those departments to do, and so therefore couldn’t be personally blamed for many (if not most) of the actions and decisions of those departments. For some reason I thought you were arguing that the president had unilateral power over the entirety of the executive branch, and therefore was personally responsible for the FDA’s decisions and actions. I was apparently mistaken. Having read your posts, I realize that the State Department is NOT one of the departments heavily regulated, and so it was a poor example for me to use.
*I want to emphasize that I was not being sarcastic in this exchange, and am truly interested in where I have gone wrong. I do appreciate being enlightened. Thank you.
It’s part of the famous ‘checks and balances’ routine. What I think you’re missing is the concept of split responsibility.
Congress can establish federal departments and agencies, often at the request of the President but sometimes not. Look at GWB’s initial opposition to the formation of the Department of Homeland Security as an example. So Congress sets up departments and defines their responsibilities and powers.
However, how that power is used and how that responsibility is defined is largely up to the President in his role as the executive. So Congress can create the FDA but the President can tell it what it’s priorities are for his policy agenda. Congress can disagree with this and congressional leadership can attempt to interfere or influence. That’s why we have the courts to resolve such conflicts.
Another example: Spending priorities and such for the federal budget are proposed by the President in his annual budget. Well and good. But Congress has the final say in passing the budget and has the right to alter it during the process. If he disagrees with the changes in a specific department’s budget the President may refuse to sign it or even veto it. It’s a part of the tug of war that is official Washington.
As for getting involved in the day-to-day policy decisions and such of the FDA? You’re right that it’s not done but largely because the President sets policy and doesn’t want to get into the weeds. I suppose he could do so if he wished but he should be (in my opinion at least) paying attention to larger issues. An example of a President NOT doing this is Lincoln’s involvement in military procurement during the Civil War. It was known at the time that Lincoln enjoyed inventions and new weaponry. He liked to try out for himself new firearms that were proposed for purchase and he liked to be involved in those decisions with the War Department. No one said he couldn’t, after all.
The President is not a dictator. He can’t rule by fiat or whim. In truth, ALL federal departments are ‘protected’ from his interference by congressional action.
In short, within the bounds of the law the President has BROAD authority to do what he pleases. But Congress and the Courts set those bounds.
Of course, that doesn’t prevent presidents from doing that traditional ‘whatever they can get away with’ routine. I’ve seen some good arguments that Jefferson’s purchase of half a continent via the Louisiana Purchase was outside his legal authority at the time but it didn’t stop him from doing it. And once done it was for damn sure Congress wasn’t going to make him give it back!
To be fair, the action in question has nothing to do with minors, and is an outright ban. Most libertarians support the deregulation and/or legalization of recreational drugs, a position I definitely sympathize with. So if you’re of that bent, it’s reasonable to find the action scary.
The President can’t tell the FDA what to do? Really?
I can’t believe it’s so soon that we are forgetting GWB and his Plan B regulations. Not only did Bush and his administration influence the FDA, but they influenced them to the point that actual science was disregarded. And those are not my words, those are from the judge that ruled on the case opening up access for the drug to 17-year olds.
The very case you cite notes that the administration’s pressuring of the FDA far exceeded their statutory authority. That’s a large part of why the decision was overturned.
X’s serving at the will of the president does not mean that the president is responsible for all X’s decisions made under that service. Just because I can fire someone whenever I want doesn’t mean I am going to be able to dictate their every move to them. For many of their decisions will be such that I did not agree, but it would be impractical to fire them over it.
Not really. The President cannot order the FDA to ban anything directly. There is law that protects the FDA from arbitrary administrative actions. In order for the FDA to create new regulations (like banning clove cigarettes) they have to follow a set procedure, and the President really has little direct say.
However, the President does have appointment powers, the ability to set budgets, and can control the general direction that the various executive departments take. For example, the EPA did its best to avoid regulating carbon dioxide under the Bush (W) administration. The EPA was finally sued in court because they were breaking the law that setup the EPA. It is quite possible that the president could interfere with the FDA in a similar manner.
Similarly, Bush appointees put political pressure in almost every agency. Even civil service hires were examined for their political support. Scientists in various agencies were ordered to manipulate reports to make their science match the political philosophy of the administration. Most famously was the administration efforts to remove from any report mention of global warming. Nasa was ordered to remove any reference to the Big Bang or to the universe being older than 10,000 years from their website.
Fortunately, the previous administration is more of the exception than the rule. Although Obama might have appointed people more prone to favor regulation, I doubt he sent a memo to the FDA to say how he stood on this ban.
The truth is that the FDA’s power is more directly affected by Congress. When the FDA was setup, there was an exemption put in that prohibited the FDA from regulating coal tar in products. A few years back, Congress took away the FDA’s power to regulate nutritional supplements. Congress recently gave the FDA powers to regulate tobacco which is probably why this ban has just taken place. Congress tweaks the regulatory powers of agencies quite often – usually in response to some industry lobbying effort. Most of the time, these tweaks are placed in important bills to prevent the President from vetoing them, or other members of Congress from voting against them.
The FDA had been lobbying since the Clinton administration to get the power to regulate tobacco, and the tobacco industry really had stopped objecting to this. The big issue is how can the FDA regulate a product that if used as directed will kill you. Under FDA rules, that products should be outright banned. It took a while to work out a way the FDA could regulate tobacco without having to ban it outright.
Ya’ll know that the President does not make laws, right?
The Obama Administration does not create law in this country.
A law is only a law if passed by both houses of congress. Congress makes the laws. The President approves and enforces. The Supreme Court defines and clarifies.
Using the President’s name in an effort to describe or define the law is misleading.
There may be actions or advice of the president that led to the law, but it’s not the President’s law. The person to contact if you disagree with any law is your congressman or senator. If you don’t like their stance and can’t change their mind, vote for someone else.
There are different kinds of law. Congress writes statutes. But the President issues Executive Orders, pursuant to those statutes, which carry the force of law. And the President oversees regulatory agencies whose directives carry the force of law.
The distinction is not as clear-cut as you make it to be.
