over at the conspiracy, juan non-volokh makes mention of the cato/acs FDA regulation debate that has leaked into the blogosphere. i figured, what the hey, i’d weigh in. i’m passingly familiar with both sides — my former employer is one of the major groups supporting FDA jurisdiction over tobacco, and several years ago i attended a pool party at robert levy’s house.

referring to the supreme court decision finding that congress had not intended to give the FDA oversight over tobacco products, levy writes,

Instead of inquiring whether Congress intended to give the FDA jurisdiction over tobacco, the court might have tackled this more vital issue: May Congress constitutionally assign its legislative role to an executive agency?

i would find it rather odd for the supremes to tackle this question and answer it in the negative, as it seems mr. levy would like them to do — mainly because it would unravel most existing government regulation, and because i think it’s physically impossible for congress to tackle all the regulatory issues on its own. one could argue that the agencies could come under congressional pervue rather than the executive’s, and i don’t really have a problem with that. but the regulatory agencies have a role to play in our government, regardless of which branch houses them.