In a surprising memo released last month by Secretary of Health and Human Services Alex Azar, federal agencies under the umbrella of his department are now prohibited from passing additional regulations on food, medicines, medical devices, and vaccines without Azar’s approval. As stated in the memo, “Any prior delegation of rulemaking authority, including the authority to sign or issue a rule or a proposed rule, is rescinded.”
Azar’s orders curtail the regulation-issuing authority of 8 agencies and 11 operating divisions. Among these agencies is the Food and Drug Administration, whose regulatory influence encompasses an estimated 20 percent of all consumer products as of 2008.
Azar’s self-granting of decision-making authority has generated a considerable backlash. Among Azar’s most outspoken critics is former FDA Commissioner Scott Gottlieb, who, during a Face the Nation interview, stated the rulemaking change “makes no sense” and is a “distraction to FDA at a time when they should be focused on the COVID response.” Providing similar disapproval, Dr. Peter Lurie, President of the Center for Science in the Public Interest, called Azar’s decision a “power grab” that will lead to “inefficiency within government operations that is wholly unnecessary and likely to gum things up.”
Whether or not Azar’s consolidation of power is ill-timed, self-serving, or will “gum things up,” it’s upsettingly predictable.
Those holding high-ranking positions within government bureaucracies, including Secretary Azar, obtain more authority, prestige, resources, and capability to push their agendas by consolidating power. Crises, whether real or imagined, provide political figures opportunities to expand their discretionary authority under the guise of offering solutions to a concerned public.
Public health crises have provided avenues for the government to expand its role in regulating the healthcare sector throughout U.S. history. In the telling and alarming Independent Institute book Hazardous to Our Health: FDA Regulation of Healthcare Products, editor and contributor Robert Higgs documents numerous instances where the perceived threat of substandard healthcare products led to the creation and expansion of the modern FDA. From 1962 to the present day, the FDA gained the authority to oversee markets in drug effectiveness, medical products, drug advertising, tobacco products, e-cigarettes, among other goods.
Far from improving product safety and resolving public health scares, numerous studies have concluded the FDA commonly overregulates to the detriment of patients and healthcare providers. The most recent centralization of state authority within the healthcare sector is unlikely to fare any better.
Preventing the expansion of government power requires reluctance to grant it authority in the first place. Unfortunately, troubling and uncertain times make championing the case for limiting the state’s role a special challenge. The history of consolidated government power to counter public health crises shows a consistent pattern of providing cures worse than the disease.