M. Reed Hopper is a principal attorney with the Pacific Legal Foundation and chairman of the foundation’s Patriot Action League.
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 specifically 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.*
* Editor’s note: In March the Supreme Court ruled 5 to 4 that the FDA had no authority from Congress to regulate tobacco.
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.S. waters. One federal court chastised the Corps for this absurd new rule stating that it would allow the Corps to regulate virtually any water-related activity from digging a drainage ditch to riding a bicycle through a puddle-sized “wetland.”
Likewise, since 1934 the Taylor Grazing Act has authorized livestock grazing on the public range. For 60 years, in accordance with the Act, the Bureau of Land Management (BLM) consistently granted grazing permits only to applicants engaged in the livestock business and encouraged ranchers to invest in range improvements (such as fences and wells) that they would then own in partnership with the government. However, in 1995 the BLM decided to change the rules. Again, without any intervening change in the law, the Bureau decided to no longer grant grazing preferences to those in the livestock business, while range improvements built by private ranchers would be held henceforth only in the name of the United States. However one feels about public-grazing laws, every American should be outraged by government action that disrupts long-standing interpretations of federal law and reverses settled rights and expectations. If this could happen to one of us, it could happen to any of us.
These incidents are symptomatic of an increasing, and dangerous, government trend to change the law—by “reinterpreting” statutory mandates—to satisfy the political agenda of those in power. It is a remarkable breach of the public trust. Not only do public officials who engage in such sophistry usurp the role of Congress to make the laws, but they become a law unto themselves. By their arbitrariness, these officials threaten our concept of ordered liberty. How can we know that the protections we enjoy under the law today will be there tomorrow? Citizens are left to conclude that the “rule of law” has no meaning and that rules and regulations are based on personal whim. It is time that public officials stand firm in their office as fair and objective enforcers of the law and stop bending in the winds of political expediency. And it is time that we start holding public officials accountable for such blatant abuses of power, for if we don’t, we can expect to see a continuing erosion of our rights under the law.