Vaping, the USVA lawsuit, and the separation of powers

Rami Rustom
Jan 16 · 5 min read

Dear fellow Americans,

I believe the USVA lawsuit is important. (See links below). And it’s not just important to vaping. It’s important to so many things that Americans care about. It’s about the rule of law. Without the rule of law, we have the rule of men. When men circumvent the law, that’s not good for anybody. And when the rule of men is promoted by congressional law, that’s unconstitutional. And if nobody challenges that, then our country will keep getting worse. We’ll keep moving away from the rule of law towards the rule of men. It’s in all of our best interests to reverse this harmful trend. I stand with Najvar Law Firm and the USVA in their pursuit of holding our government accountable. We should all stand with them.

But don’t take my word for it. Judge it for yourself. Here’s my understanding of the situation and the USVA lawsuit.

The heart of the lawsuit is regarding the non-delegation principle (also called non-delegation doctrine).

First I’ll explain what the non-delegation principle is, the purpose if it, how it works, and then I’ll explain how it applies to the vaping situation.

The non-delegation principle is a legal concept that attempts to maintain the *separation of powers*. Our constitution setup three branches of government that were designed to check each other. The founders of our country didn’t want any one branch of government to gain too much power for fear that that branch would turn tyrannical. They wanted to maintain the rule of law. They wanted to avoid the rule of men. So the idea of limiting the powers of each branch of government served that goal. The legislative branch (congress) is responsible for making the laws. The judicial branch (courts) is responsible for interpreting the laws. And the executive branch (president and executive agencies like the FDA) is responsible for executing the laws.

Shortly after the creation of our country, congress created a law that delegated some work to some executive branch agencies. A lawsuit was brought against the law and the Supreme Court found that congress can get the assistance of the executive branch to “fill in the gaps” of the laws. We now call these rules and regulations.

But, if that is done incorrectly, what could happen is that congress delegates to the executive branch the power to make laws, rather than regulations. And that goes against the constitution. The executive branch is not supposed to make our laws. The founders wanted to keep the power to make laws with the legislative branch. Part of the reasoning for that is this. We should want elected officials to make laws, so that if we don’t like the laws they are making, we can vote them out. And the heads of executive agencies are not elected officials.

So back to the non-delegation principle. The non-delegation principle is a limitation put on congress defining what type of power that congress can delegate to the executive branch. It’s something that the Supreme Court created as a clarifying explanation that attempts to serve the goal of the separation of powers.

Sometimes congress (unconstitutionally) makes a law that gives the executive branch the power to make laws. So sometimes people will bring a case to a court asking for a judge to declare the congressional law unconstitutional. If that case wins, then the section of the congressional law that delegated the particular law-making power to the executive branch will be struck down. This results in the executive branch no longer having the power (to make the particular laws) that congress had given it. And it also results in striking down the “laws” that the executive agency created based on the congressional law that gave the agency power to do so.

So back to the non-delegation principle. How does it work? A law is supposed to provide the logic by which the executive branch agency is to create regulations. That logic should include things like statements of purpose and conditional tests. Then the executive branch agency is supposed to consider the purpose, generate some hypothetical regulations, then apply the conditional tests in order to judge whether or not the hypothetical regulations in fact work towards the purpose. Then, if people disagreed with the agency’s decisions in applying the congressional law, they can sue and the court has the potential to strike down the agency’s regulations by finding that the regulations contradict the congressional law’s logic.

In the case of a law that (unconstitutionally) delegates legislative power to an executive branch agency, the courts CANNOT disagree with the agency’s determinations because there is no language provided in the congressional law that gave the legislative power to the agency. Instead, the only thing that the courts can do to strike down the agency’s “law” is to find that the congressional law unconstitutionally delegated legislative power to an agency, thus striking down the congressional law and, by default, striking down the “laws” that the agency created unconstitutionally.

In the case of the USVA lawsuit, The Tobacco Control Act of 2009 (TCA) unconstitutionally delegated law-making power to an executive branch agency. The TCA gave the FDA the power to choose which tobacco products will be regulated under the TCA, without congress giving the agency any logic by which they should make that choice. No statements of purpose or conditional tests. No way for the courts to disagree that the agency’s choice contradicted the logic of the TCA (because there was no logic provided by the congressional law). So the FDA instituted the Deeming Rule. They deemed that vaping products (among others) will be regulated under the TCA. And the only way for the courts to argue against the Deeming Rule is to argue that the congressional law unconstitutionally delegated law-making power to the FDA.

If instead the TCA did provide logic by which the FDA should make a choice regarding adding particular tobacco products to be regulated under the TCA, then the courts would not be able to argue against the unconstitutionality of the congressional law and instead the courts could try to argue against the FDA’s choice by showing that it contradicted the logic provided by the congressional law.

So the TCA promotes the rule of men. If we succeed in this USVA lawsuit, the court’s opinion will be used in future lawsuits like it (non-delegation challenges). Every win we get strengthens our chances of getting the next win. So we should all stand together against this law. We should all stand together against tyranny. Our country is at stake. Our rights are at stake.

If you agree with me, then please join the USVA and help them in their pursuit of holding our government accountable. Remember, our government is supposed to serve us, not be our overlords. They are supposed to protect our rights, not circumvent them.

Rami Rustom, Proud American

Links:

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