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When the Washington Post published a story, “Pork industry soon will have more power over meat inspections,” FSIS proffered the “Oath of Office” in an attempt to place its employees, “civil servants with the noblest of missions,” on the moral high ground. Persons appointed within the civil or uniformed services take the “Oath of Office” [5 USC 3331]. FSIS would have you believe that it is an oath “to protect the American food supply.” Not true. It is an oath to “support and defend” and “bear true faith and allegiance to” the Constitution. FSIS does not “bear true faith and allegiance to” the Constitution!
Article I, Section 8 grants Congress the power “To regulate Commerce … among the several States …”. The power of Congress to regulate is without limit. The Federal Meat Inspection Act (FMIA) is a manifestation of that power.
Article II, Section 3 tasks the Executive to “take Care that the Laws be faithfully executed.” The FMIA tasks the Secretary of Agriculture with execution. He/she delegates to the Under Secretary, who delegates to the FSIS Administrator.
The 5th Amendment prohibits the deprivation of “liberty, or property, without due process of law” to protect persons from unreasonable rules and unfair proceedings made possible by the unlimited power of Congress. Enforcement actions are deprivations of liberty and/or property. Due process requires the Administrator to afford notice and a hearing before an impartial tribunal when taking an enforcement action.
- Notice must enable the recipient to determine what is proposed and what he must do to prevent the deprivation. [Goldberg v. Kelly, 397 U.S. 254, 271 (1970)]
- A hearing is required before an individual is deprived of a property or liberty interest. [Mathews v. Eldridge, 424 U.S. 319, 333 (1976)]
- The tribunal cannot have a direct, personal, substantial, pecuniary interest in a case. [Tumey v. Ohio, 273 U.S. 510 (1927)]
If the Administrator refuses or withdraws approval of marks, labels, and containers, or refuses to provide or withdraws inspection service, he/she elevates the action to the Secretary for proceedings under the Uniform Rules of Practice [7 CFR subtitle A, part 1, subpart H], which afford due process of law and “bear true faith and allegiance to” the Constitution.
If the Administrator takes a regulatory control action, withholding action, or suspension, he/she delegates authority [9 CFR 300.4(a)] to the FSIS, Office of Field Operations, Assistant Administrator, who delegates to a District Manager (DM), who tasks FSIS supervisors and inspectors (IPP) at the establishment level. Under the FSIS Rules of Practice [9 CFR 500], IPP afford notice, but DM reserve the right to implement a withholding action or impose a suspension without notice. The Administrator affords the option to appeal; but affords no hearing before an impartial tribunal. The Administrator may hold a suspension in abeyance in lieu of a request that the Secretary withdraw inspection service and allow the establishment to operate under conditions agreed to by the Administrator and the establishment.
FSIS Directive 13,000.3 instructs the DM and IPP, to respond to appeals within suggested timeframes, but response times may be extended at DM and IPP discretion. The directive instructs the DM and IPP, to communicate the appeal decision to the establishment but require no explanation when denying an appeal. The immediate supervisor of the FSIS employee taking, or upholding, the enforcement action decides the appeal outcome. Appeals denied by the Administrator can be appealed in Federal District Court [5 USC 701 et seq]. The filing fee is $400.
The concept of imminent danger does not apply. Neither the public health, nor food safety, are in peril. The mere necessity for quick action does not constitute a public emergency. The circumstances supporting FSIS enforcement actions occur within official establishments under direct IPP oversight. The FSIS Rules of Practice do not “bear true faith and allegiance to” the Constitution!
- When government officials with direct, personal, and/or substantial interests can deny valid appeals of unsupportable enforcement actions without reason; justice is denied.
- When citizens must pay $400 for access to an impartial tribunal; justice is denied.
- When suspension can force bankruptcy and loss of the right to a hearing [Munsell v. USDA, 509 F. 3d 572 (2007)]; justice is denied.
- When submission to government conditions is the cost of a suspension in abeyance; justice is denied.
FSIS weaponization of the law coerces those least able to defend their Constitutional rights and fight unconstitutional regulatory practices into submission to unelected FSIS bureaucrats. What can be done? Congress could prohibit suspension or withdrawal of inspection without a self-evident public health threat. The Secretary could place the FSIS appeal process under the USDA, National Appeals Division. The Administrator could reform the FSIS rules of practice and incorporate quality and procedural controls.
The Fifth Amendment protects Americans from being deprived of life, liberty, or property, without due process of law. I took the “Oath of Office” six times: four enlistments, joining FSIS, and commission as a US Army officer. When I retired from the Army, I retained my commission; meaning I maintain the oath. Needless to say, the oath resonates with me, viscerally. I write this to “support and defend” the Constitution. No statute, regulation, or USDA policy compels the FSIS Administrator to implement rules of practice that “bear true faith and allegiance to” the Constitution. That offends me. I hope it offends you too.
— Michael Fisher
Retired career FSIS employee
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