I watched a Right Angle YouTube video last night and while I’m usually in agreement with most of what these gentlemen say, I was terribly disappointed with their position on a proposed federal regulation regarding drug advertising.
Let’s start from the beginning. The episode opens with Scott Ott discussing two items he had recently read about actions the Trump administration was taking. Since links to the articles were not included in the description, I’m going to reply simply to what was said on the video and I’m going to focus on the regulation to require drug advertisements to include, in legible type, the monthly cost of the medication. While I agree that transparency in advertising is a very good thing, there’s just one small problem.: The entire proposed regulation is illegal.
First of all, it is illegal for the executive branch to create laws. Literally, the first legal words in the Constitution are “All legislative Powers herein granted shall be vested in a Congress of the United States“. Only Congress can make laws; not the President and not the courts. “But wait”, you may be saying, “this isn’t a law, it’s a regulation.” Then what is a law? Webster’s 1828 Dictionary defines a law as “A rule, particularly an established or permanent rule, prescribed by the supreme power of a state to its subjects, for regulating their actions, particularly their social actions.” Call it a rule, a regulation, or a scruffy looking nerf herder, when governments create a rule for regulating the actions of the people it is a law, and only Congress can create laws. And since this is not a law, it is illegal.
What if Congress passes a law? The problem is, the Tenth Amendment to the Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since there is no power delegated to the federal government to regulate the medical industry or the advertising industry, such a law would be illegal. You may ask, “What about the Commerce Clause? Can’t Congress regulate interstate commerce?” Yes, Congress has the power to regulate commerce between the states, so Congress could establish standardized rules for the sale of advertising across state lines, but not its content as long as what is stated is accurate. The First Amendment to the Constitution states “Congress shall make no law… abridging the freedom of speech, or of the press“. So any law that dictates the content of any message is a clear violation of the Constitution and therefore illegal. If Congress could pass laws dictating speech in advertising, they could require bakers to include messages on their cakes, pro-life centers to advertise for abortion, and radio and TV stations to broadcast certain messages. No, if the federal government tries to implement the regulation discussed in this episode, it would be illegal.
And, yes, I mean illegal, not just unconstitutional. You see Article VI, Clause 2 of the Constitution states that it is the supreme law of the land. So if something is unconstitutional, it is a violation of the supreme law of the land and therefore illegal. Now those of you who opened your pocket Constitution or followed the link (bravo, by the way!) will notice that the laws of the United States are supreme as well. Well, the Constitution actually says “the Laws of the United States which shall be made in Pursuance thereof”. A quick look at Webster’s 1828 dictionary shows that “pursuance” means “consequence” and comes from the word “pursue“, which means to follow. That means only laws that are a consequence or follow the Constitution are the supreme law of the land. If any law the Congress passed and the President signed were the supreme law of the land, the Constitution would mean nothing. Congress could pass a law banning free speech, freedom of the press, or your right against unreasonable searches, and they would effectively supersede the Constitution since they would be the “supreme law of the land”. Alexander Hamilton, in Federalist #78 wrote “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.” Thomas Jefferson, while writing about the Alien and Sedition Acts said “and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force”. So if Congress passes a law that does not follow the Constitution in both form and substance, it is illegal, null and void.
So while I agree with Bill Whittle, Scott Ott, and Steve Green that transparency in advertising is a good thing, I am not prepared to further denigrate the Constitution to get the ends I prefer. “The ends justify the means” is a mantra of the progressives and it has been used to great effect to destroy the rule of law and, by extension, our republic. If we chastise them for such behavior, we should chastise those we agree with when they do the same thing. You cannot rein in an out of control federal government by encouraging them to assume more powers that they are not entitle to wield. To be blunt, gentlemen, I expected better from you.