Public Health Law Map - Beta 5 - Medical and Public Health Law Site

A. Establishing Agencies
For its first century, the United States was governed with a very small federal
government. The balance of governmental functions were carried out locally and at the
state level. This began to shift as the United States gained its overseas empire and as
President Theodore Roosevelt started his trust-busting. The government continued to
grow, albeit slowly, during the Depression. The major change came with World War
II, when the federal government took on extraordinary powers to coordinate the
nation’s fighting of the war. These powers were exercised by executive branch
agencies, created by Congress and overseen by the president. The federal government
never really demobilized after World War II, creating the large and powerful central
government that has characterized modern U.S. politics. Outside of the military, almost
all the growth in government has been the growth of administrative agencies.
Agencies must be established by the legislature, either Congress or the state legislature.
(This section mostly discusses federal agencies, but state law closely follows the
federal law.) Congress starts agencies and expands them to deal with public relations
problems. For example, the original agency regulating food and drugs was formed in
response to Upton Sinclair’s novel, The Jungle. This was meant to be an exposé of the
horrible working conditions in the Chicago food processing industries. Unfortunately
for the author, the general public was a lot more horrified by what the book told them
about the contents of their food than by the suffering of the workers. Congress was
pressured to deal with the problem and formed the predecessor to the FDA. In the
1930s there was a scandal involving a pediatric elixir that was prepared with ethylene
glycol—a pleasant tasting but deadly solvent. The result was the modern food and drug
regulation acts. In the 1970s there was great concern with the growing medical devices
industry and congressional hearing about the dangers of some of the medical devices.
Soon after, the FDA was given the right to regulate medical devices. (This works both
ways—concentrated lobbying by the “health” foods industry caused Congress to take
away the FDA’s right to regulate food supplements, leaving the public with few
protections in this area.)
1. The Delegation Problem
The Constitution demands that the branches of government be separate so each can
provide checks and balances on the other two’s powers. The main power of Congress
is passing laws: “To make all laws which shall be necessary and proper.” [U.S.C.S.
Const. art. 1, § 8, para. 18.] An agency can only exercise the power that Congress
gives it. The early Supreme Court decisions saw this as a problem to the extent that
the agency transferred the power of Congress to make laws to the executive branch.
The court required that the enabling legislation—the law establishing the agency—be
sufficiently specific to limit the agency’s discretion. Since early agencies were small
and exercised few powers, the courts were content to find that they did not usurp the
law-making function.
As federal agencies grew in power, the courts again became concerned with the
delegation issue. One of their concerns was that agencies could make rules with
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