Government and Science: The Unitary Executive versus Freedom of Scientific Inquiry

Government and Science:The Unitary Executive versus Freedom of Scientific Inquiry Lawrence O. Gostin (bio) President Barack Obama pledged in his inaugural address to "restore science to its rightful place" and promised that federal policy would be informed by "the most complete, accurate, and honest scientific information."1 The president joined a chorus of condemnation against the Bush administration's "war on science," ranging from former surgeon generals, senior agency scientists, and the Union of Concerned Scientists to the General Accountability Office and Congress. Showing respect for science is not only crucial to affirming democratic ideals of openness and freedom of inquiry. It is also essential to the long-term well-being of society, which benefits from scientific research and innovation. During the Bush administration, once-strong, independent agencies such as the Centers for Disease Control and Prevention, the Food and Drug Administration, the Environmental Protection Agency, and the National Institutes of Health came under political influence perhaps more than at any other time in history, threatening the effectiveness and credibility of the executive branch. Consider three examples: In 2006, the GAO revealed that the Bush administration had spent over $1.6 billion in a two-year span on public relations, including payments to columnists, media firms, and networks to editorialize in favor of the administration's policies.2 The Department of Health and Human Services, the Office of National Drug Control Policy, and the FDA distributed prepackaged news clips to promote Medicare reform and antidrug messages and to warn consumers not to buy prescription drugs from Canada. Other reports placed the government in a favorable light on issues ranging from childhood obesity and drunk driving to preservation of the environment. The GAO found that federal agencies violated a congressional ban on "covert propaganda."3 Also in 2006, a DHHS appropriations act required that scientific information "shall be transmitted [to Congress] uncensored and without delay."4 But in his "signing statement," President Bush affirmed his power to "to withhold information that could impair the workings of the executive branch." The American Bar Association called this—and the other 750-plus presidential signing statements declaring an intent not to enforce legislation (including a torture ban, protection of whistle-blowers, and the independence of an Institute of Education Sciences)—"contrary to the rule of law and our constitutional system."5 In 2004 and 2005, the Union of Concerned Scientists (UCS) reported that the Bush administration systematically distorted scientific fact in the service of policy goals on the environment, health, and biomedical research.6 Illustrations included the FDA delaying approval of emergency contraceptives against the advice of staff scientists and two independent advisory panels, the DHHS obscuring scientific evaluation of abstinence-only education and pressuring scientists to promote abstinence, the CDC altering its Web site to raise doubts about the effectiveness of condoms in preventing HIV transmission, and the EPA undermining climate change science by suppressing reports and publicly misrepresenting scientific consensus. Health officials even concealed scientific evidence that social and racial disparities affect health care. In some instances, one might give a nod to the government's benign intentions (antidrug messages on television, for example), but does beneficence justify deceit? In other instances, the government's suppression or disregard of science seemed coldly calculated to buttress its political ideology or favor special interests. Above all, transparency and honesty are essential in setting and enforcing health policy. The public expects the state to listen carefully, be objective, and promote the common good. Constitutional Freedoms of Scientists President Bush justified political control over science on a theory of a "unitary executive," according to which the president holds a tight grip on federal policy. Unitary executive theory flies in the face of the Constitution's separation of powers. But more importantly, it stands in stark contrast to First Amendment principles of freedom of thought and expression. Defense of civil liberties in a free state is essential to the scientific enterprise. The Constitution most assuredly safeguards private scientists' research and dissemination of results. The Supreme Court affords a wide berth to scientific endeavor, effectively exempting it from controls on obscenity, limiting the classification of scientific findings on national security grounds, and condemning "prior restraints" on the...

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