Anatomy of the Administrative State: The HHS

The Administrative State

• Many have come to believe that if Dr. Anthony Fauci resigns or is removed from his position as Director of the The National Institute of Allergy and Infectious Diseases (NIAID), then the whole COVIDcrisis problem of chronic, strategic and tactical administrative overreach, dishonesty, mismanagement and ethical breaches within the US Department of Health and Human Services (HHS) would be resolved.
• I disagree. The underlying problem is a perverted bureaucratic system of governance which is completely insulated from functional oversight by elected officials. The "administrative state" is a general term used to describe the entrenched form of government that currently controls almost all levers of federal power in the United States.

Administrative law rests on two fictions

• The nondelegation doctrine: imagines that Congress does not delegate legislative power to agencies
• Executive power: the administrative state exercises only executive power, even if that power sometimes looks legislative or judicial
• These fictions are required by a formalist reading of the Constitution, whose Vesting Clauses permit only Congress to make law and the President only to execute the law

When Congress does give an agency the ability to regulate, Congress must give the agencies an "intelligible principle" on which to base their regulations.

• Hampton v. United States, 276 U.S. 394 (1928)
• This standard is lenient, and has rarely been used to strike down legislation.

Chevron Deference doctrine

• The Chevron deference doctrine is that when a legislative delegation to an administrative agency on a particular issue or question is not explicit but rather implicit, a court may not substitute its own interpretation of the statute for a reasonable interpretation made by the administrative agency

To be accorded Chevron deference, the agency's interpretation of an ambiguous statute must be permissible

• In determining the reasonableness of a particular construction of a statute by the agency, the age of that administrative interpretation as well as the congressional action or inaction in response to that interpretation at issue can be a useful guide.

Bottom Line

• None of the issues involved in current debates over these two core doctrines of administrative law has the power to fully deconstruct the administrative state.

Background

• Very few appreciate that these issues underlie recent decisions concerning who to appoint to the Supreme Court and lower courts.

The arc of the COVIDcrisis

• Collusive planning between a wide range of corporate interests, globalists, and the administrative state
• Attempts to cover up administrative state culpability in creating the crisis
• Gross mismanagement of public health policies, decision making, and communication

Under Biden, HHS COVID policies have continued with little change

• One administration seemingly flows directly into the next with hardly a hiccup

The ruse of an official public health emergency has been necessary both to maintain power as well as US Government contract revenue for those corporations who have been making obscene profits from selling the "Emergency Use Authorized" medical countermeasures that have been allowed to bypass long-established regulatory, bioethical, and legal liability norms.

• This is most clearly evident in the maintenance of a state of medical emergency, which provides HHS bureaucrats with almost unlimited powers to bypass constitutional restrictions despite the clear evidence that there is no longer any medical emergency.

Organizational Paradox

• There is an organizational paradox which enables immense power to be amassed by those who have risen to the top of the civilian scientific corps within HHS

Each federal health institute functions as a semi-autonomous city-state, and the administrators and their respective courtiers act accordingly.

• Their organizational budgets can be either enhanced or cut during following fiscal years, but otherwise they are largely protected from corrective action including termination of employment absent some major moral transgression

Congress in the 16th century

• Each Prince vying for funding and power by currying favor with influential archbishops

In his masterpiece "The Best and the Brightest: Kennedy-Johnson Administrations", David Halberstam cites a quote from New York Times reporter Neil Sheehan to illustrate the role of the administrative state on the series of horrifically poor decisions which resulted in one of the greatest US public policy failures of the 20th century - the VietNam war.

• In retrospect, the parallels between the mismanagement, propaganda, willingness to suspend prior ethical norms, and chronic lies which define that deadly fiasco are remarkably similar to those which characterize the COVIDcrisis response.
• The surreptitious hand of the US intelligence community was often in the background, pushing the boundaries of acceptable behavior.

Since the 2001 "Amerithrax" Anthrax spore "attacks", HHS has increasingly been horizontally integrated with the intelligence community as well as with the Department of Homeland Security to form a health security state with enormous ability to shape and enforce "consensus" through widespread propaganda, censorship, "nudge" technology and intentional manipulation of the "Mass Formation" hypnosis process.

The term "inverted totalitarianism" was first coined in 2003 by the political theorist and writer Dr. Sheldon Wolin

• It has been used to illuminate totalitarian aspects of the American political system, and to highlight his opinion that the modern American federal government has similarities to the historic German Nazi government

In inverted totalitarianism:

• Corporations have corrupted and subverted democracy

Inverted totalitarianism

• The administrative state has turned the USA into a “managed democracy” led by a bureaucracy which cannot be held accountable by the elected representatives of the people

Inverted totalitarianism

• Political systems which have devolved into inverted totalitarianism do not have an authoritarian leader, but instead are run by a non-transparent group of bureaucrats

Fascism is the fusion of the interests of corporations and the state

• It is rooted in the tension between the interest of the republic and its citizens (which Jefferson felt should be primary), and the financial interests of business and corporations (Hamilton's ideal)
• The pendulum of power has swung far too far in favor of corporations at the expense of the general population.

Inverted totalitarianism is often driven by the personal financial interests of individual bureaucrats

• Bureaucrats are easily influenced and coopted by corporate interests due to both the lure of powerful jobs after federal employment ("revolving door") and the capture of legislative bodies by the lobbyists serving concealed corporate interests

In an investigative article published in the British Medical Journal, Maryanne Demasi documents the processes which drive development of public-private partnerships between administrative state apparatchiks and the corporations which they are paid to regulate and oversee

• Five mechanisms driving the cooptation process were identified in virtually all of the six leading medical product regulatory agencies (Australia, Canada, Europe, Japan, the UK, and the US):

Industry money saturates the globe's leading regulators

• The majority of regulators' budget is derived from industry fees
• Of the six, Australia gets the highest proportion of budget from fees (96%), and approves more than 9 out of 10 drug company applications
• Australia denies there is a conflict of interest

An analysis of three decades of PDUFA in the US has shown how a reliance on industry fees is contributing to a decline in evidentiary standards, ultimately harming patients

• In Australia, experts have called for a complete overhaul of the TGA's structure and function, arguing that the agency has become too close to industry

Like the FDA, the TGA is an independent body, but being largely funded by fees from the companies whose products it is charged to evaluate is a fundamental conflict of interest and a prime example of institutional corruption.

• Donald Light of Rowan University in New Jersey, US, who has spent decades studying drug regulation

External Advisors:

• Concern over COIs extends to the advisory panels intended to provide regulators with independent expert advice
• Several expert advisers for covid-19 vaccine advisory committees in the UK and US had financial ties with vaccine manufacturers-ties the regulators judged as acceptable
• Those with financial interests solely in the sponsoring firm were more likely to vote in favor of the sponsor's product

Joel Lexchin, a drug policy researcher at York University in Toronto, says, "People should know about any financial COIs that those giving advice have so that they can evaluate whether those COIs have influenced the advice they are hearing. People need to be able to trust what they hear from public health officials and a lack of transparency erodes trust."

Regulatory Structure

• Of the six major regulators, only Canada's drug regulators did not routinely seek advice from an independent committee and its evaluation team was the only one completely free of financial COIs.

Transparency, conflicts of interest, and data

• Most regulatory agencies do not undertake their own assessment of individual patient data, but rather rely on summaries prepared by the drug sponsor.
• The TGA, for example, says it conducts its covid-19 vaccine assessments based on information provided by the vaccine’s sponsor.

Recently, a group of more than 80 professors and researchers sued the FDA for access to all the data which the agency used to grant licensure for Pfizer's covid-19 vaccine.

• Among global regulators, only two-the FDA and PMDA-routinely obtain patient level datasets. And neither proactively publish these data.

Speedy approvals

• Following the AIDS crisis, PDUFA "user fees" were introduced in the US to fund additional staff to help speed the approval of new treatments.

In 2020, 68% of drug approvals in the US were through expedited pathways

• 50% in Europe, and 36% in the UK
• Courtney Davis, a medical and political sociologist at the Kings College London, says that a general taxation or a drug company levy would be better options to fund regulators.

The FDA

• Nine out of 10 past commissioners went on to secure roles with pharmaceutical companies

There are direct financial ties that bind corporations, philanthropic capitalist non-governmental organizations (such as the Bill and Melinda Gates Foundation), and the administrative state

• In the case of both the Centers for Disease Control and Prevention (CDC) and the National Institutes of Health (NIH), there are also direct financial connections between the three.

The NIH has established the "Foundation for the National Institutes of Health", currently headed by CEO Dr. Julie Gerberding

• Dr.Gerberding’s career provides a case history illustrating the ties between the administrative state and corporate America

Summary:

• The Bayh-Dole Act or Patent and Trademark Law Amendments Act (Pub. L. 96-517, December 12, 1980) is United States legislation permitting ownership by contractors of inventions arising from federal government-funded research.
• Sponsored by Birch Bayh of Indiana and Bob Dole of Kansas, the Act was adopted in 1980, is codified at 94 Stat. 3015, and in 35 U.S.C. § 200-212, and is implemented by 37 C.F.R. 401-404.

Bayh-Dole was originally intended to create incentives for federally funded academia, non-profit organizations, and federal contractors to protect inventions and other intellectual property

• However, it has now also been applied to federal employees
• resulting in massive personal payments to specific employees as well as the agencies, branches and divisions for which they work.

This creates perverse incentives for federal employees to favor specific companies and specific technologies that they have contributed relative to competing companies and technologies.

• This policy is particularly insidious in the case of federal employees who have a role in determining the direction of research funding allocation such as Anthony Fauci.

 

https://brownstone.org/articles/anatomy-of-the-administrative-state-the-hhs/