YES, THERE ARE UNELECTED BUREAUCRATS, AND THEY CAN DO A LOT OF DAMAGE.

When the Wuhan coronavirus first started circulating widely, prudent people bought out all the hand sanitizer in stores, and the supply chains were caught up short as none of their just-in-time models anticipated such a surge.  Local distilleries, which had the capability to convert ethanol into sanitizer, filled the breach.  What thanks did they get?  First, the food and drug types gave them grief for selling sanitizer without denaturing the alcohol, and then they got a bill for back taxes or something. Departing health and human services secretary Alex Azar waived the fee, which was something slipped into one of the coronavirus relief bills as some sort of log-rolling.  There are limits to state power, after all.  "Just devolve, already.  'Credentialed Elites plus Presidential Power plus Tax and Spend ... eventually collapses of its own weight.  Perhaps with the voting coalitions taking new forms along the way.'"

That collapse cannot come too soon.  The power struggle between the health secretary and Congress that led to the rule being rescinded is instructive.

Late [on December 31], however, the Department of Health and Human Services (HHS) reversed the policy. In a statement posted to Twitter, HHS Chief of Staff Brian Harrison said, "Small businesses who stepped up to fight COVID-19 should be applauded by their government, not taxed for doing so. I'm pleased to announce we have directed FDA to cease enforcement of these arbitrary, surprise user fees. Happy New Year, distilleries, and cheers to you for helping keep us safe!"

In a longer statement, HHS leadership distanced itself from the initial policy: "This action was not cleared by HHS leadership, who only learned of it through media reports late yesterday. HHS leadership convened an emergency meeting late last night to discuss the matter and requested an immediate legal review. The HHS Office of the General Counsel (OGC) has reviewed the matter and determined that the manner in which the fees were announced and issued has the force and effect of a legislative rule. Only the HHS Secretary has the authority to issue legislative rules, and he would never have authorized such an action during a time in which the Department is maximizing its regulatory flexibility to empower Americans to confront and defeat COVID-19."

The statement continued: "Because HHS OGC has determined the notice is really a legislative rule and that no one at FDA has been delegated authority to issue such a rule, the notice is void. HHS leadership, based on this legal opinion, has ordered the Federal Register Notice to be withdrawn from the Federal Register, meaning these surprise user fees will not need to be paid."

I wonder if that means some of the "Secretary shall issue" legislation that creates the administrative state also designates a deputy undersecretary who also has the power to issue regulations, and if that deputy is in a position to refuse to implement a sunset order from a departmental secretary.