Stopping Administrative State COVID Crisis Overreach
The foundation of the HHS COVID crisis mismanagement is built upon the authorization that has allowed the HHS arm of the administrative state to suspend a wide range of federal statutes and functionally bypass various aspects of the Bill of Rights of the U.S. Constitution: the “Determination that a Public Health Emergency Exists.” First signed by HHS Secretary Alex Azar on Jan. 31, 2020, it was then renewed by Azar/Trump effective April 26, 2020, and again on July 23 (Azar/Trump), again on Oct. 2, 2020 (Azar/Trump), Jan. 7, 2021 (Azar/Trump), and then we switch Presidential administrations.The Secretary is no longer required to make a formal determination of a public health emergency under section 319 of the Public Health Service Act, 42 U.S.C. 247d before declaring that circumstances justify issuing an EUA. Under section 564 of the FFD&C Act, as amended, the Secretary now may determine that there is a public health emergency or significant potential for a public health emergency that affects, or has significant potential to affect, national security or the health and security of U.S. citizens living abroad and involves a biological, chemical, radiological, or nuclear agent or disease or condition that may be attributable to such agent(s). The Secretary may then declare that the circumstances justify emergency authorization of a product, enabling the FDA to issue an EUA before the emergency occurs.
Dismantling the HHS Administrative State
The leadership hierarchy of the U.S. federal administrative state is structured along the same lines as the military, with a progressive series of general service ranks (GS-1 through GS-15, with 15 being the most senior) which are lead by a separate leadership group called the Senior Executive Service (SES V through I, with SES I being most senior), which oversees civilian government operations. According to the Office of Personnel Management:The Senior Executive Service (SES) lead America’s workforce. As the keystone of the Civil Service Reform Act of 1978, the SES was established to “… ensure that the executive management of the Government of the United States is responsive to the needs, policies, and goals of the Nation and otherwise is of the highest quality.” These leaders possess well-honed executive skills and share a broad perspective on government and a public service commitment that is grounded in the Constitution.
The presiding judge was Ketanji Brown Jackson, who was later rewarded for her decision with a nomination to the Supreme Court, which was affirmed by the U.S. Senate. Jackson’s judgment was later reversed but Trump’s actions were embroiled in a juridical tangle that rendered them moot.
“Positions of a confidential, policy-determining, policy-making, or policy-advocating character not normally subject to change as a result of a Presidential transition shall be listed in Schedule F. In appointing an individual to a position in Schedule F, each agency shall follow the principle of veteran preference as far as administratively feasible.”
The order demanded a thorough governmental review of what is essentially a reclassification of the SES.
“Each head of an executive agency (as defined in section 105 of title 5, United States Code, but excluding the Government Accountability Office) shall conduct, within 90 days of the date of this order, a preliminary review of agency positions covered by subchapter II of chapter 75 of title 5, United States Code, and shall conduct a complete review of such positions within 210 days of the date of this order.”
“The directive from the White House, issued late Wednesday, sounds technical: creating a new ‘Schedule F’ within the ‘excepted service’ of the federal government for employees in policymaking roles, and directing agencies to determine who qualifies. Its implications, however, are profound and alarming. It gives those in power the authority to fire more or less at will as many as tens of thousands of workers currently in the competitive civil service, from managers to lawyers to economists to, yes, scientists. This week’s order is a major salvo in the president’s onslaught against the cadre of dedicated civil servants whom he calls the ‘deep state’ — and who are really the greatest strength of the U.S. government.”Jeffrey Tucker summarizes the subsequent cascade of events:
Ninety days after Oct. 21, 2020, would have been Jan. 19, 2021, the day before the new president was to be inaugurated. The Washington Post commented ominously: “Mr. Trump will try to realize his sad vision in his second term, unless voters are wise enough to stop him.”
Stopping Corporate-Administrative Collusion and Corruption
The third core problem which must be addressed involves the various laws, administrative policies, and surreptitious practices which have empowered the symbiotic (or is is parasitic?) alliance which has formed between the medical-pharmaceutical complex and the HHS administrative state.Once again, it is important to recognize the fundamental political structure which has been created; a fascist inverse totalitarianism. The face of modern fascism is often stereotyped by the corporate press as a group of Tiki-torch waving Proud Boys in uniforms marching in Charlottesville and committing acts of violence in person with bats or via automobile. But this is not modern fascism, it is a group of mostly young men aping superficial features of the German Third Reich while wearing outdated uniforms and chanting repugnant slogans designed to provoke outrage. Fascism is a political system which is otherwise known as corporatism, that being the fusion of corporate and state power. And as previously discussed, currently the real power of the U.S. Government lies in the Fourth Estate, the administrative state.
To break up these “public-private partnerships” which compromise the ability of HHS to perform essential oversight duties and truly protect the health of American citizens from the rapacious practices and disgusting ethics of the medical-pharmaceutical complex (in which they behave as predators, and we have become the prey), we must sever the financial and organizational ties that bind the medical-pharmaceutical industrial complex to the HHS administrative state, and which have been incrementally developed and deployed over many decades.
- The Bayh-Dole act must be modified, administratively or legislatively, so that it no longer apply to federal employees. HHS scientists and administrators must not be receiving royalties from intellectual property licensed to the medical-pharmaceutical complex, as this creates multiple layers of both explicit and occult financial conflicts of interest.
- The congressional charters for the “Foundation for the National Institutes of Health” and the “CDC Foundation” must be revoked. These public-private partnership organizations have created unaccountable slush funds which are exploited by the HHS administrative state and SES to circumvent the will of Congress (by enabling activities neither funded nor authorized by Congress) and embody the fusion of interests between the medical-pharmaceutical complex and the HHS administrative state.
- The regulator-industry revolving door. The revolving door between HHS employees and medical-pharmaceutical complex must somehow be jammed shut. Mere awareness of the probability of lucrative employment by Pharma upon retirement or departure from HHS oversight roles already biases almost every action of FDA and CDC senior and junior staff. I do not know how to accomplish this from a legal standpoint, I just know that the task must be accomplished if the public interest is to be better served.
- Industry Fees. The idea of forcing the medical-pharmaceutical complex to pay for the cost of regulation was naive, and this practice must also be halted. If the taxpaying citizens of the United States want safe and effective vaccines and drugs, then they need to pay for the cost to insure that Pharma is forced to play by the rules. And when it does not, the resulting actions and fines must be so powerful that they cannot just be written off as a cost of doing business.
- Vaccine liability indemnification is another legislative strategy which has clearly failed to meet its intended purpose. The vaccine industry has become an unaccountable monster which is consuming both adults and children. The National Childhood Vaccine Injury Act (NCVIA) of 1986 (42 U.S.C. §§ 300aa-1 to 300aa-34) was signed into law by United States President Ronald Reagan as part of a larger health bill on Nov. 14, 1986, and has created an incentive structure with the familiar problem of coupling private profit to public risk, and has resulted in widespread corruption of both FDA/CBER and CDC.
- Speedy approvals. Yet another “innovation” developed by Congress with wide latitude for implementation by the administrative state, the Prescription Drug User Fee Act (PDUFA) was a law passed by the U.S. Congress in 1992 which allowed the Food and Drug Administration (FDA) to collect fees from drug manufacturers to fund the new drug approval process. The inefficiency of the FDA regulatory process has lead (largely via administrative fiat) to a series of “expedited approval” pathways, which in turn have been amplified and exploited by Pharma to advance its own objectives, often at the expense of the public. Another case of unintended blowback in which the best laid plans have been twisted by the Administrative State to the point of no longer serving the original intent of Congress. This is another situation which deserves legal scrutiny in light of the revisitation of the nondelegation doctrine.
- External Advisors. External advisors are often used to provide cover for bureaucrats, and particularly for SES staff, so that a carefully handpicked external committee can be relied upon to produce the intended result while allowing the administrator to avoid responsibility and maintain plausible deniability for decisions which may be unpopular with the citizenry but lucrative or otherwise beneficial for the medical-industrial complex. Once again, while the original intent may have been noble, in practice this has become just another tool which the administrative state has bent to do its bidding as well as that of its corporate partners.
- Transparency, conflicts of interest, and data. If we have learned anything from the COVID crisis, it is that the HHS administrative state is quite willing to withhold data from both outside scientists and the general public. Clearly this must stop, and once again recent district court decisions kindle hope that forcing the SES and administrative state to become more open and transparent is an achievable objective.
- Too big to fail. Many of the subdivisions of HHS have become too large and unwieldy, and a rigorous assessment of mission, priorities, productivity, and value provided must be performed followed by breaking up the large power centers (NIAID being one example), refocusing the overall enterprise on health and wellness, and eliminating non-essential functions.
Conclusions
Many voices have been raised which advocate some combination of pitchforks and torches for what the COVID crisis has clearly revealed to be a politicized and corrupted HHS and its associated subsidiary agencies and institutes. It may be that it will be necessary to create a parallel organization, mature it to the point that it can assume the essential functions of the current HHS, and then demolish the (at that point) obsolete HHS structure.But in the interim, the reforms proposed above could certainly advance the ball downfield towards an HHS which would provide greater value to U.S. taxpayers and citizens, and which could be more effectively controlled by Congress and the Executive rather than operating largely autonomously to serve the interests of the administrative state itself.
Friends Read Free