A Breach of the Public Trust

Article excerpt

Few things in life are more uncertain than government regulation. Long-held understandings and settled expectations can literally change overnight in the fickle halls of officialdom. Consistent interpretations of federal law, relied on for years by the public, can abruptly change when federal agencies have a sudden change of heart about the scope or purpose of their authority, due to nothing more than the shifting policies of a new administration. Without the slightest change in the law, some federal agencies have taken it on themselves to redefine their regulatory role and push an agenda that is not only diametrically opposed to previous agency policy, but stands in direct violation of the law they are entrusted to enforce. This transparent attempt by grasping federal agencies to expand their power is becoming commonplace.

For example, the Food and Drug Administration (FDA) is authorized to regulate certain consumer products under the Food, Drug and Cosmetic Act. This authority does not extend to tobacco products, however. At least, that is what the FDA has said since 1914. For more than 80 years the FDA held to this interpretation because, among other reasons, Congress chose to regulate tobacco products directly through another law. Additionally, Congress has repeatedly refused to grant the FDA authority over tobacco products and the Food, Drug and Cosmetic Act itself does not specif ically bestow on the FDA the power to regulate tobacco products. But in 1996, when it became popular to bash "Big Tobacco," the agency did a complete about-face. Without any change in its congressional mandate, the FDA now claims it has authority to regulate tobacco products. Even those who find smoking repugnant should fear a federal agency that presumptuously wrests power from Congress because of a subjective belief it can do a better job.*

Similarly, the Clean Water Act authorizes the Army Corps of Engineers to issue permits "for the discharge of dredged and fill material into navigable waters." In 1986 the Corps adopted regulations exempting from the permit requirement incidental soil movement (such as overflow from a bucket) occurring during normal dredging operations. The Corps stated in public documents that it did not have authority to regulate dredging, but only the discharge of dredged material. According to the Corps, this exemption for incidental soil movement was, therefore, required by the Act. But, in a sweetheart deal with environmental groups, the Corps reversed itself in 1993, claiming for the first time that the Act actually required the Corps to regulate the incidental movement of soil in U. …


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