Un-Elected ‘Deep State’ Bureaucrats Enact Most Laws in Health & Human Services

‘Among the hundreds of illegal FDA rules, 25 rules were classified as significant because they had an impact on the American economy…’

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(Joshua Paladino, Liberty Headlines) The Pacific Legal Foundation studied nearly 3,000 rules passed by the Department of Health and Human Services during a 17-year period and learned that 71 percent of them did not meet constitutional requirements.

Un-elected career bureaucrats in the administrative state—commonly referred to as the “Deep State”—passed more than seven out of 10 rules, which carry the “force of law,” according to the Foundation.

“In a democracy, those who make the rules need to be accountable to the people,” said report co-author Thomas Berry, an attorney at Pacific Legal Foundation.

“That’s why the Framers included the Appointments Clause in the Constitution. Only properly-appointed officers in the executive branch may issue regulations that are binding on the public. This preserves democratic accountability for significant executive branch actions.”


If the American people do not know who passes rules, then they do not know whom to remove from office for making bad laws and whom to keep in office for making good laws.

The Constitution requires that “principal officers” make laws. Principal officers are officials who the president of the United States appoints and the Senate confirms.

The Food and Drug Administration hardly ever follows the Constitution when passing rules.

Nearly 1,900 rules cleared FDA procedures without the approval of an appointed official.

A mere 2 percent of rules were approved by principal officers.

Many of the rules do not affect average Americans—they harass business owners, farmers, and others involved in supplying America’s agricultural and pharmaceutical needs.

However, some rules have a broad impact, such as the “Deeming Rule.”

The Deeming Rule groups “tobacco-free vaping products as tobacco products.”

Yet no elected official—let alone Congress, the president, or the Supreme Court—decided that tobacco-free products could be considered tobacco products.

The Pacific Legal Foundation filed lawsuits to overturn the Deeming Rule, arguing that it is unconstitutional and harms Americans who want to stop smoking with the help of vaping products.

“Among the hundreds of illegal FDA rules, 25 rules were classified as significant because they had an impact on the American economy of at least $100 million or had other significant economic impacts,” said Angela Erickson, PLF’s strategic research director and co-author of the report. “Congress and the White House should ensure that this practice ends and agencies comply with the law.”