The Constitution vested the power to make laws in Congress, which is the most democratically elected branch of government. The executive branch, with a couple of exceptions, does what Congress says. And since Marbury v. Madison, the federal court system has had the role of determining when the executive is doing something it’s not allowed to do.
Republican Congresswoman Nancy Mace of South Carolina seems pretty confused about all of this. She went on CNN to discuss the federal court ruling that the FDA didn’t follow the law when it approved the abortion pill in 2000.
OB-GYNS DISPUTE SAFETY OF ABORTION PILL AMID COURT BATTLE
Watch her comments here:
Republican @NancyMace says she believes the FDA should ignore the Texas judge’s ruling. “This is an FDA approved drug. Whether you agree with its usage or not, that's not your decision. That is the FDA’s decision.” pic.twitter.com/wGJBunurcL
— Kaitlan Collins (@kaitlancollins) April 10, 2023
First, Mace agrees answered that a federal court may not “say that the FDA’s determination about a drug is invalid.”
Her argument against the ruling boiled down to, “This is the FDA’s decision.”
She argued, “This is an FDA-approved drug, I support the usage of FDA-approved drugs…. It’s up to us to decide as legislators…. So I agree with ignoring it at this point.”
She then agrees that “the FDA should ignore this.”
The implication here is that the FDA can do whatever it wants, however it wants, regardless of what Congress says.
One of the central points in the circuit court opinion was that the FDA used an expedited process when the law didn’t allow an expedited process. If the FDA does stuff that Congress hasn’t authorized the FDA to do — such as rush through the approval of a drug that doesn’t treat a disease under a law for drugs that treat diseases — then it is the job of the federal courts to say, “No, you can only do this if Congress says you can.”
The irony is that Mace is actually in Congress. If she wants the FDA to have the power to do rush-approval of abortion drugs, she could propose a law saying that. Heck, she could propose a law saying that the abortion pill is legal, regardless of what the FDA says.
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So it’s extra weird for her to assert that the FDA actually has lawmaking power that is not checkable by democratically elected members of Congress.
Of course, Congress has been ceding its authority to the executive branch for decades, with war powers being the most glaring example, although this also includes taxing powers. If Congresswoman Mace supports abortion pills, she should propose an abortion-pill legalization law instead of telling the executive branch to make its own law and ignore federal courts.