The Dangerous Rise Of A Fourth Branch Of Government: The Administrative State
The administrators are the ones -- at the FDA, in this case -- who tried to ban artisanal cheese-making on wooden boards, a practice that has failed to kill people for centuries. Don't want to eat cheese that doesn't have the crap cooked out of it? Don't eat it. No cheese maker is holding you at gun point and trying to force you to down a cracker with Mimolette on it.

Jonathan Turley writes about the cheese decision, from which the FDA recently backed off:

The whey hit the fan after the New York State Department of Agriculture asked the FDA for clarification as to whether wooden surfaces were acceptable for the aging of cheese. Metz then responded with the following:

"The use of wooden shelves, rough or otherwise, for cheese ripening does not conform to cGMP requirements, which require that "all plant equipment and utensils shall be so designed and of such material and workmanship as to be adequately cleanable, and shall be properly maintained." 21 CFR 110.40(a). Wooden shelves or boards cannot be adequately cleaned and sanitized. The porous structure of wood enables it to absorb and retain bacteria, therefore bacteria generally colonize not only the surface but also the inside layers of wood. The shelves or boards used for aging make direct contact with finished products; hence they could be a potential source of pathogenic microorganisms in the finished products."

That one line effectively ended centuries of cheese making without any vote of Congress or a hearing or a scientific study. One administrator appears to have rendered a decision that would decapitate an industry. I recently wrote about the rise of a "fourth branch" within our system and the dangers that it poses for a tripartite system. There has been a gravitational shift in our system toward this fourth branch which now has a surprisingly degree of executive, legislative, and judicial powers. This issue is also raised in the recess appointment context and the diminishing control of Congress over agency actions. I have previously testified and written about President Barack Obama's use of recess appointments, which I viewed as flagrantly unconstitutional. Recently, the D.C. Circuit agreed with that view and found that the Obama Administration had violated the recess appointment powers.

Turley continues in a column on the untoward rise of the administrative branch of government:

The rise of the fourth branch has been at the expense of Congress's lawmaking authority. In fact, the vast majority of "laws" governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

This rulemaking comes with little accountability. It's often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical. Of course, agencies owe their creation and underlying legal authority to Congress, and Congress holds the purse strings. But Capitol Hill's relatively small staff is incapable of exerting oversight on more than a small percentage of agency actions. And the threat of cutting funds is a blunt instrument to control a massive administrative state -- like running a locomotive with an on/off switch.

The autonomy was magnified when the Supreme Court ruled in 1984 that agencies are entitled to heavy deference in their interpretations of laws. The court went even further this past week, ruling that agencies should get the same heavy deference in determining their own jurisdictions -- a power that was previously believed to rest with Congress. In his dissent in Arlington v. FCC, Chief Justice John Roberts warned: "It would be a bit much to describe the result as 'the very definition of tyranny,' but the danger posed by the growing power of the administrative state cannot be dismissed."

The judiciary, too, has seen its authority diminished by the rise of the fourth branch. Under Article III of the Constitution, citizens facing charges and fines are entitled to due process in our court system. As the number of federal regulations increased, however, Congress decided to relieve the judiciary of most regulatory cases and create administrative courts tied to individual agencies. The result is that a citizen is 10 times more likely to be tried by an agency than by an actual court. In a given year, federal judges conduct roughly 95,000 adjudicatory proceedings, including trials, while federal agencies complete more than 939,000.

These agency proceedings are often mockeries of due process, with one-sided presumptions and procedural rules favoring the agency. And agencies increasingly seem to chafe at being denied their judicial authority. Just ask John E. Brennan. Brennan, a 50-year-old technology consultant, was charged with disorderly conduct and indecent exposure when he stripped at Portland International Airport last year in protest of invasive security measures by the Transportation Security Administration. He was cleared by a trial judge, who ruled that his stripping was a form of free speech. The TSA was undeterred. After the ruling, it pulled Brennan into its own agency courts under administrative charges.

Turley is exactly right in his ending to his piece:

In the new regulatory age, presidents and Congress can still change the government's priorities, but the agencies effectively run the show based on their interpretations and discretion. The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding.

We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government.

Radley Balko (from 2007) on how private enterprise does the administrating so much better anyway.

I'm glad someone who has the public ear (well, at least part of the public) is finally saying this. I've long contended that when rules and regulations have the force of law, they are laws, no matter what you call them. (And I've had many people scoff at me for saying so.)

It's clear that this works very much to the advantage of the Washington elite and the incumbents. Having created an untouchable bureaucracy, they now have a convenient place to fob off thing that they want to do but know will be unpopular. This way, the elected officials maintain their plausible deniability and even get to protest against unpopular actions, all while continuing to support those same agencies with additional grants of money and authority.

And, the opportunities for corruption are absolutely massive. Truth is, you can, if you are so motivated, get away with all kinds of things in the employ of an agency. Want to demand bribes or kickbacks? You can do that. Want to sic the govenrment on that neighbor you don't like? You can do that. Want to toady up to powerful people and get favors? You can do that. Want to get your jollies by bossing people around? You can do that too. Want to force your personal or political opinions on the world? That window is open too. Truth is, as long as you keep a low profile, you can pretty much do what you want and your chances of ever being prosecuted are very low -- pretty much the worst thing that can happen, if you do something that really embarrasses your superiors, is that you get moved to another position.

Cousin Dave at June 12, 2014 6:50 AM

( legalinsurrection.com/2010/07/almost-killed-the-meal//#more )
Warning signs at California restaurants

If you undercook the meat, you are exposed to bacteria. If you overcook it, there are carcinogens in the crust. The only safe way is to cook food is to boil it, for at least an hour.

Most vegetables contain natural pesticides to fight off insects and diseases at levels 10,000 times by weight of any synthetic pesticide residues.

If broccoli were not grandfathered as a vegetable, it could not be approved by the FDA for human consumption. It contains natural carcinogens which greatly exceed any pesticide residues allowed in agriculture. Children are correct to avoid broccoli /sarc.

Plants Make Their Own Pesticides

Will Congress kill farmers' markets? That food has not been tested.

We live at a time when every exaggeration and sarcasm about the government will come true.

Does the playground at your school contain lead? Is it safe to eat a mere teaspoon of the dirt in front of your house? What is the maximum dose of dirt? Do we know? Keep your children indoors until the dangers have been assessed and removed.

( easyopinions.blogspot.com/2009/01/stop-death-from-quilts-and-food.html )
Stop the Death from Quilts and Food

Watch out when you eat. If possible, don't.

Andrew_M_Garland at June 12, 2014 12:32 PM

Amy Alkon

http://www.advicegoddess.com/archives/2014/06/12/the_dangerous_r_1.html#comment-4752696">comment from Andrew_M_Garland

If my steak doesn't moo softly as Gregg slides it onto the plate, it's not rare enough.

My diet is largely steak, heavily buttered and wilted green beans, bacon, eggs, and coffee.

Amy Alkon at June 12, 2014 1:47 PM

I'm with you Amy. A steak is cooked enough if it has been passed in front of a lit candle.

Off topic: I keep checking the box that says "Remember personal info?" when I comment. But the site never does. What am I doing wrong?

Jay at June 12, 2014 2:28 PM

Amy Alkon

http://www.advicegoddess.com/archives/2014/06/12/the_dangerous_r_1.html#comment-4752910">comment from Jay

Sorry, Jay, I have no idea. Something about cookies, perhaps? It didn't used to work for me; now it does. I've been so busy I never even got around to mentioning some awards I'm up for. Have to do that soon. Gregg and I are up for one together, for the radio, which is just so exciting. I told him if we win -- which is a long shot, since we're up against an NPR powerhouse and longtime radio pros -- we will go up there (to get the award) and kiss. (He will probably nix this if it comes to that, but I think that would be fun.)

Amy Alkon at June 12, 2014 3:12 PM

Government regulation breeds bureaucracy. The more things the government regulates, the more agencies it needs and the bigger (and more powerful) those agencies grow; and agencies don't have term limits.

Conan the Grammarian at June 12, 2014 5:01 PM

Part of the problem is that the government has gotten so large and extra-constitutional that is causing a lot of this. Some examples:

• The EPA: where is the environment in the enumerated powers?
• The Dept of Ed: Schools were supposed to be local or at worst a state function.
• Social Security and Medicare: Again your retirement should be on you and not the government.
• The national parks: About 60% of the land in the western states were annexed by the fed but they have never had anything done except letting some ranchers graze cattle.

And that is just the tip of the iceberg.

The federal government needs to be pared back down to size and kick the 10th Amendment in pretty often.

Jim P. at June 12, 2014 5:59 PM

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