The Food and Drug Administration (FDA) is an executive branch agency, the beneficiary of vast legislative powers delegated to it by Congress. It is also the repository of powers not delegated by Congress that FDA has usurped beyond the limits of its enabling statute throughout its 68 year history. The Commissioner of FDA sits at the pleasure of the President. The FDA is one of the largest and most powerful federal bureaucracies. It regulates over $1 trillion dollars of goods. The products under its jurisdiction account for 25 cents of every dollar spent by American consumers. FDA has approximately ten thousand employees and 26 district offices across the United States. The United States Attorneys and federal marshals are at its disposal and can obtain search and seizure warrants to be exercised without any advance notice against any company that sells a food, dietary supplement, drug, or medical device in the United States.
To understand how FDA has acquired so much power in a government designedly of limited powers, we have to appreciate the agency’s place in history. Indeed, we have to start with the origins of American constitutional government, 151 years before the FDA came into existence, to appreciate the perversion of the Framers’ plan effected by the modern FDA. We must follow America’s late 18th Century rejection of the arbitrary will of King George III, its embrace of a written Constitution where the law and a system of separation of powers and checks and balances were supposed to prevent the accumulation of tyrannical power in any one set of hands. We must then observe the rise of independent regulatory commissions in the Twentieth Century and how those commissions united legislative, executive, and judicial powers into single hands in violation of our founding principles. We must then come to see how FDA in particular exemplifies the arbitrary rule of people in power over the rule of law.