One of the most basic things to start with when talking about power is to ask where it comes from. When we are talking about federal officials, most basically, their power comes from the Constitution itself. This is the fallacy of officials in the federal government bemoaning that they are limited by the Constitution: ‘why should we be restrained by the Constitution?’
But what they don’t get, or want you to forget, is that without that Constitution they have no power. So, they want all the power the Constitution grants, but none of the limitations on that power included in the Constitution (as amended).
And to a lesser extent certain offices are created by Congress, through legislation, and the laws contain limitations, too, that the office-holder cannot ignore. And that brings us to Jonathan Turley’s bombshell that we don’t think got quite enough coverage:
CNN's Elizabeth Cohen once gushed that when "Dr. Fauci talks, he's just like a regular guy." It turns out she might have been more accurate than she thought -- because Fauci legally may have been just a "regular guy" giving out billions without authority. https://t.co/eY3y9yYDuh
— Jonathan Turley (@JonathanTurley) July 10, 2023
The short version is that Fauci claimed to be the director of the National Institute of Allergy and Infectious Diseases. And at one point, he definitely held that job. But at another point, it may be that his term expired and … he kept doing the job anyway, like Milton in Office Space. Turley has the details:
The problem is the 21st Century Cures Act, passed in 2016. Section 2033 of that act is titled ‘Increasing Accountability at the National Institutes of Health,’ and it seeks to achieve greater accountability by requiring the HHS secretary to personally appoint those directors. For reasons the Biden administration has yet to explain, it appears to have ignored the law, according to the House committee. Under the five-year terms granted in 2016, these directors had to be reappointed by [Health and Human Services (HHS) Secretary Xavier] Becerra by December 2021. It is not clear if this task was delegated to the NIH director, but the law appears to be clear: There is no delegation; it must be Becerra who renewed such appointments.
Thus, starting on December 12, 2021, Fauci and 13 other National Institutes of Health (NIH) institute and center directors seemed to unlawfully hold their offices for some period. As Turley notes these people not only made significant policy decisions, but also gave out $25 billion in grants—all without having any more authority to do so than your average server at your local Chick-fil-a.
He goes on:
It got even stranger on June 19 when HHS sent Congress documents titled ‘Ratification of Prior Selection and Prospective Appointment: Appointment Affidavit.’ While signed by Becerra, the documents were dated on June 8 and June 15. They were specifically ‘prospective appointments’ but seemed to suggest some form of retroactive ratification. That, too, is not allowed under federal law. In the case of Fauci and another director, according to the House committee, there is not even a retroactive affidavit to that effect.
Turley hedges with an ‘if these allegations are true’ but things are definitely suspicious as heck.
Swell. Sad. Nothing will happen to him.
— Suzanne - Official SOAR (@Lapleopards) July 11, 2023
We are uncertain of that, but if there is any party that can truthfully claim it was harmed by any of these decisions—such as Fauci giving a grant to Corporation A when Corporation B wanted it, or Fauci issuing a policy that harms any person to any degree—we might see this topic become the subject of litigation and more than a year’s worth of agency decisions might be destroyed at the stroke of a judicial pen.
Wow. What an indictment of the system if this happened without authorization.
— Robert J. Thomas (@RobertJThomas1) July 10, 2023
Keep it up. Dr. Fauci already has a security detail. You’ll get him killed yet. That will make you happy, won’t it?
— James Strnal (@JamesStrnal) July 11, 2023
The opposition to basic journalism in our time is startling. If you cannot report about bad and possibly illegal behavior by public officials—indeed reporting the possibility of someone impersonating a public official—why even have a First Amendment? Seriously, we have examined the criminal statute prohibiting impersonating a public official, 18 U.S.C. § 912, and it looks like there is a real chance these 14 officials violated that statue. Will Fauci go begging for a pardon—if only for 'cya' purposes?
The Biden administration clearly doesn't believe laws apply to them, and so far they're correct. Regardless of legality there's good reason to believe this also will be ignored by the press and DOJ.
— George (@ManAboutMorse) July 10, 2023
But the courts probably can’t ignore it.
Turley gets more and more pathetic all the time. Fauci has served every President since his original appointment by Ronald Reagan. This would never hold water in court and Turley knows this.
— Jeff O (@jolefson50) July 10, 2023
Actually, this kind of argument has 'held water' in other situations.
Appreciate you pointing this out.
— Catching up with the news (@4GigiGriffith) July 10, 2023
Bottom line is that politicians find work arounds and have lawyers to clean up their messes
That’s not how it worked with the student loans.
A stellar look for these Trump apologists. Keep on attacking a man who dedicated his life to medicine. https://t.co/LU7bcfWmzK
— Dr. YoungSaltBialy (@HughWhiting) July 11, 2023
So did Dr. Mengele.
@JonathanTurley is a national treasure. https://t.co/KyOvYgWdh0
— Free Honk Honk NonMundane (@n0nmundan3) July 11, 2023
Dang straight. This might end up being a sleeper issue in the coming years.
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