Medical vs. Legal vs. Moral Authority in the US, or Why You Are a Libertarian But Don't Know It
Let's Get Down to the Basics
Believe it or not, this is not a political post. It’s not an attempt to draw people into the Libertarian Party. It’s a reflection of what I see has happened and is happening. At the very least, it will make you think.
In most states in the US, when medical boards act, they act with the authority of the executive branch. When CDC and the FDA act, they, too, act with the authority of the executive branch. HHS has its own judiciary system. In the ideal version of separation of powers, the executive branch has the power to enforce the law, and, by definition, they have to interpret the law. Therefore, CDC and FDA have certain prescribed and limited legal authority to interpret and enforce legislative law (think DEA).
When your doctor speaks to you, what they say is considered to come with a certain amount of medical authority that society confers upon them due to their medical degree and life experience in practice. We assume they know everything they need to know to make recommendations for our care - and that their decisions are not colored by money from other sources.
(Related: Is Your Doctor on the Take? Find Out Here.)
Where does moral authority come in? Is it the same as legal and medical authority? Most of our sleeping society automatically imbues moral authority upon those with a white coat and a stethoscope, as well as those working in Federal Regulatory Agencies (especially the CDC). Regulatory rulemaking was not always the status quo in the United States. The moves to create EPA (1970), the FDA (1906, upgraded by Nixon) and the CDC (1946) were considered steps taken by our society to protect the public from fraud in foodstuffs, toxins from corporations, and disease.
While these were laudable goals, something has gone disastrously bad. In case you haven’t noticed, there are a few things wrong with the actual vs. ideal manifestation of this arrangement - and most of it traces to regulatory rulemaking, or “Administrative Rule”.
What Limits Regulatory Rule-Making Power?
How far the powers of enforcement can go is circumscribed depends on the powers imbued to the agency by Congress. If there is overreach, it’s the job of Congress to reign them in. Failing that, it’s the job of the judiciary to settle disputes on limits of executive power.
Agency personnel are appointed, not elected. Their longevity depends on their reputation - which is how we get the likes of slick, forked-tongued Fauci, who has served under five presidents, none of them capable of detecting the technocratic empire he was building under his direct control. Ironically, NIAID has no regulatory authority, yet during 2020 and part of 2021, everyone asleep imbued an incredible amount of power - and undue, admixed moral authority - in the words of its director, Anthony Fauci. Fauci’s unquestioned authority and specious reasoning on matters of public health is now well understood to be conflated with an agenda to hide important aspect of reality from the US and world public eye.
What Limits Medical Power?
The power of the medical board to act depends heavily and almost entirely on the appointment of board members by US governors’ authority per each state’s medical practice act. In some states, the disciplinary board is distinct from the licensing board. In some states and regions, a health services committee elects board limits - and some even have term limits. Like the regulatory agencies, medical board members’ tenure is determined primarily by their reputation - which is determined by what their peers, or they themselves, tell politicians.
Medical boards have legal authority, but are not widely seen as centers of moral authority. In 2019, about a third of Maryland’s two-dozen medical board members resigned after kick-back deals were discovered, which involved a raid of homes by the FDA and the IRS (AP News).
Who Assigns Morality Authority?
Morality is a socially agreed upon set of behavioral (and behavioral range) norms that allow people to live cooperatively in groups. Morality is therefore plastic, and depends on context. Understanding its social component - what is generally considered moral and immoral - depends in part on the consensus and compliance to consensus. This is not to say that all morality is subjective, nor that all collections of mores and norms are equally valid. The search for equity in all things means all things are considered out of any context - and that will lead to societal chaos, easily exploited by the enemies of the West.
Morality can change, and sometimes that change is codified into law, and sometime it is not. Smoking indoors, as another example, was once not considered to be bad judgement. The public view was sufficiently changed to allow codified smoking bans in most public places in most states. Divorce, for example, was once considered to carry a social stigma. Once laws were in place allowing divorce, no laws had to be written to allow people to accept it as an unfortunate norm because society had adopted the norm organically. The average duration of marriage in the US is now 11 years, and 90% of divorces are settled out of court.
People who want to change the norms of society must change both codified laws and regulations and change the consensus viewpoint of morality. Moral authority cannot be assumed; it comes from the hearts and minds of the masses who recognize that authority in a person, body, agency, or rule when they see it. When morality is absent from a new law, rule, or code, the people (ideally) can take action against elected representatives. The people can also take action against appointed administrative rulers, but most do not appreciate the power of a letter, email or phone call to their representatives calling for fa ruler’s - or a collection of rulers’ - immediate resignation.
Clearly, it would be ideal if society could manage to have regulatory power aligned with medical power, leading to a natural interplay that led to the public’s uniform understanding and appreciation for their fellow citizens serving in their capacity to enhance a “greater good”. This, however, cannot come from the top-down. Most Americans do not yet appreciate the dramatic expansion of powers assumed by those in the position of regulatory rule-making. “Administrative Law” has become the new norm, by which a CDC Director can tell property owners (by decree) they cannot charge rent, or evict people who have not paid their rent. Similarly, FDA has raided the offices of doctors to enforce non-binding “guidances”. What exactly are their limits? Apparently their power is limited to the point where politicians object.
These agencies have limited police authority, but where that limit exists is unclear. FDA has dampened enthusiasm for off-label treatments of COVID-19 by issuing “guidances” that explain that early treatments that have been shown to be effective at reducing mortality in COVID-19 have not been approved for off-label use by the FDA. They fail, however, to inform the public, however, of the FDA rule that in the absence of a standard of care, a doctor can use off-label drugs and therapies if he or she believes it might be of benefit to the patient.
Conflicts of Interest
It may interest many to learn that personnel at NIH and CDC can personally profit from the tools of public health they develop - and that they then create administrative rules that then come with the power of enforcement of their agency - for the entire country. The fact that the general public does not immediately or easily know of the nature & depth of the financial entanglements among administrative rulers and large corporations is part of the problem.
Related: See CDC Compromised by Bias and Conflicts of Interest (AAPS Online)
Why You Might Actually Be a Libertarian
People on both sides of the political aisle have decried administrative rule-making when agency policies run afoul of their own political ideology. Take, for example, the difference between the Trump administration’s EPA and the Biden’s EPA. I fall into a category of “recovering Democrat”; regardless, I celebrate the recent revocation on “all tolerances” of Chlorpyrifos - a pesticide associated with autism - by a final rule the US EPA in August 2021.
Administrative rule has become massively more powerful - and most recently, a way for political parties to wield equally massive, nearly unchecked power. The empowerment of administrative rule has led to the politicization of science itself - from climate change to COVID-19 issues - in a manner that is entirely disruptive of the normal American way of life.
In moments of hyperbole, the warnings against administrative rule as a backdoor to totalitarianism seem trite. But this possibility is not impossible. So, what safeguards exist on administrative rule making? When regulatory capture is nearly complete, and regulatory agencies with corporate interests demand particular interpretation of science, the public suffers. In some cases, corporate interests use front organizations that conduct tobacco-science like “studies” - such as those studies that have alleged to exonerate glyphosate as a health concern.
An anarchist would say no government is preferable to any government. Libertarians prefer “hands-off” policies, with little intrusion by government. The problem of regulatory capture is an important one that does not seem to register completely in the public psyche as linked to Administrative Law. The revolving door between regulatory agencies and corporations is very well documented, but in case the point is not clear: corporations actively influence nominations, policy interpretation, and new rule-making in a manner that excludes oversight by the legislative branch. They use their influence to their massive advantage, in some cases short-circuiting the very reason for regulatory agencies in the first place.
When the government is run by corporations, the regulatory agencies can become the marketing department of pharmaceutical corporations. Corporations should not run governments, nor vice versa. Either way, the combined power becomes fascist, and is afforded too much centralized private power to allow air for civil liberties to breathe.
The pass-the-buck political liability for vaccine mandates is a good example. First, the White House, via the HHS, informed the public that there would be no need for a federal mandate. This message is a tautology: vaccine law is a state’s right decision. With the COVID-19 vaccine program in shambles, the Federal government wanted boosters - against the science - badly. Why? Expiring vaccines not taken up by nearly or over half of the US population would have to be answered for. Some were re-programmed for “developing countries”.
Knowing they could not turn to the State Governors for uniform policy on vaccine mandates without exemptions (check your local laws), the Biden administration then found what they believed to be a loophole: OSHA. If, they reasoned, an unvaccinated person coming to work could be made to appear to be a workplace safety threat, OSHA could issue a policy requiring protection from harm. Thus the policy, enforce vaccination or weekly testing, or be fined for violations”. So far, nothing has appeared in the Federal Register enacting a final administrative rule. Never mind that OSHA administratively turfed the reporting of vaccine injury and death due to workplace vaccination (click for source):
“So as to not discourage vaccination” is not in keeping with other rules on the books, such as 45 CFR 46, and federal and state laws that require that every patient be given the opportunity to provide (or decline to provide) informed consent.
(Click to access 45 CFR 46 HHS)
Each administrative rule that reflects only part of scientific reality has led to claims of safety before science, claims of efficacy before science, mandates before science, individuals being fired before science, and is placing the American public in harm’s way.
As I promised, this article is not a political missive; it’s an objective analysis of what has happened, and what is happening. From what we have seen, neither the Democratic nor the Republican parties are capable of untangling the regulatory Gordian knot. The media cannot possibly report objectively on these process perversions lest they lose advertisers - and thus watchdog organizations, independent research scientists and the public themselves become the de facto regulators of the regulatory agencies - and of appointed administrative rulers.
I predict that the extremely tall dual order of reigning in the regulatory agencies and reversing regulatory capture will be the prime directive of any centrist initiative designed to place the US on a track toward a thriving future. To fail to do so is to ensure the emergence of a police state via the administrative back door. It will take effort and will to do what is right from both sides of the political aisle - sometimes against personal interest.
This is the environment in which heroes are made. The people who step up should be humble and cast their ego and aspirations for power aside. They should feel unwilling to be in the spotlight. They should approach the media onslaught with a stoicism befitting a MacArthur. They must do that difficult business of finding ways of holding bad actors responsible. Most importantly, they must not back down.
If they act appropriately, they can better align the American ideals of liberty - the moral compass of our nation - with the regulatory agency’s model of service to protect the public from harm.
A comprehensive list of what must change is coming this week. Be sure to subscribe for email notifications.
In the meantime, here are some related videos on the topic of Administrative Rule.