"L'État, c'est moi"

Question: What do you call one man who claims the power to make, interpret, and enforce the law? Answer: President Bush.

President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, "whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty "to take care that the laws be faithfully executed." Bush, however, has repeatedly declared that he does not need to "execute" a law he believes is unconstitutional.

It's not just FISA anymore. Why aren't more people worried about this, and more importantly, why isn't anyone doing anything about it?

Suing Merck

A whole lot of people are suing Merck over Vioxx, and Sebastian Malleby thinks that's just crazy. Bush should use this episode of litigation-gone-wild, Malleby says, to push for tort reform and rescue his domestic agenda.

Now, I don't know if these lawsuits have merit or not. I tend to think they're not frivolous because they're actually getting to trial. And while the science here might be difficult and ambiguous, let's not forget that Merck got itself in trouble for systematically suppressing research that raised questions about Vioxx's safety. Perhaps this is more a case of "it's not the crime, it's the cover-up", but in any event Merck certainly isn't an innocent victim here.

But maybe Malleby is right to suggest that it might not be the best thing for Merck to be looking at thousands of lawsuits costing billions of dollars. But Malleby certainly misses the point entirely by describing this as a tort-reform issue. It's not — it's a regulatory one.

If the FDA had taken its job seriously and actually regulated the pharmaceutical industry, then we might not be looking at these lawsuits right now. If the FDA prioritized safety rather than drug industry profits, we might not need lawsuits to pick up the slack as bad drugs come to market. I'd be willing to consider trading some meaningful reforms of the drug approval process for some new restrictions on lawsuits in this area, but that would require action by Congress against a powerful and "helpful" interest group; I'm not holding my breath. As for cynics like Malleby, these lawsuits are best seen as a political opportunity to bash the Democrats, rather than as an indicator that something has gone wrong with the process. Hence his refusal to recognize and engage the core problem.