Public Participation

                                  What’s There Not to Love About the Supreme Court?

During the early years of the Reagan Administration ketchup might have had to be removed from the school lunch program as a result of reductions in the School Lunch Program. The Department of Agriculture, with the support of OMB, had to find a solution that would wade through the maze of regulations dealing with food nutrition, the school lunch program and food safety and find a way that ketchup could continue to be provided to students notwithstanding reductions in the resources allotted to the school lunch program.

The answer, simply declare ketchup as a vegetable. The uproar of resentment was immense and Jim Tozzi and his colleagues were demeaned for years.

As a result of attending a conference sponsored by Crop Life America it was disclosed that there is a decision by the Supreme Court which places the Department of Agriculture-OMB position in a considerably more favorable light. In particular in Nix v. Hedden, 149 U.S. 304 (1893) the Supreme Court opined that:

under U.S. customs regulations, the tomato should be classified as a vegetable rather than a fruit. The Court’s unanimous opinion held that the Tariff Act of 1883 used the ordinary meaning of the words “fruit” and “vegetable,” instead of the technical botanical meaning.

A witness to the Agriculture-OMB deliberations writes:

Ketchup Is a Vegetable. 

Government decision-making is a human endeavor, which means policy can be decided on criteria very different from abstract logic. In the early 1980s, many people asked how the regulatory review program established by President Reagan could possibly have cleared a final rule from the Department of Agriculture that declared ketchup to be a vegetable for purposes of providing children in the school lunch program a healthy meal. I learned how.

The OMB staff initially flagged the Agriculture rule for review because tomatoes are a fruit, not a vegetable. There were problems with the rule, but that was not it.

Seven people gathered in the Old Executive Office Building for the policy review – a young female special assistant to the OMB regulatory czar and six principals. Each of the principals was named Jim. OMB sent Jim Miller and Jim Tozzi; Agriculture sent its general counsel and his deputy, both named Jim; and the White House sent two Jims. The special assistant’s notes were an extended “Who’s On First?” routine. The discussion went: “Now wait a minute, Jim, when Jim and I had lunch, Jim said that Jim had no problem with this.” “When Jim and you had lunch?” “No, when Jim and I had lunch.” “And Jim had no problem?” “No, I hadn’t heard back from Jim, I had only heard from Jim, and he was fine with it.” After two hours of discussion, the principals made no progress in figuring out the problems with the rule and cleared it for signature.

A few days later, they found out what the problems were the hard way—when they read in the newspapers about the political controversy that erupted over the rule.

Administrative law and working within the administrative state is about as wonky as it gets but nonetheless the decisions made in this space shape society—one regulation at a time.