The recent Supreme Court decision that the Food and Drug Administration (FDA) has no statutory authority to regulate cigarettes has returned the question of whether and how to regulate tobacco to Congress. If you think this is but another chapter in the ongoing war over tobacco, think again. The Court’s decision sets the stage for a debate with far‐reaching implications: Who, ultimately, should be primarily charged with making law, the legislature or the bureaucracy? Even those bored with the tobacco war should pay very close attention to what happens next.
The anti‐tobacco lobby wants the FDA to have the power to regulate cigarette marketing and manufacturing because it fears that Congress will not. They’re probably right. Congress has repeatedly rejected legislation to codify the regulations proposed by the FDA and the anti‐tobacco lobby. Moreover, there is no appetite on the Hill for regulating nicotine out of cigarettes — the professed goal of the anti‐tobacco advocates and many at the FDA.
So instead, the anti‐tobacco forces are campaigning energetically to get Congress to voluntarily delegate its lawmaking authority to the FDA. Congress might go along, because congressmen hate alienating well‐organized political factions. Do that too often, and you find yourself out of a job. By punting the issue to the FDA, congressmen can simultaneously please the anti‐tobacco crowd and give speeches against nanny‐state regulation. After all, their fingerprints won’t be on whatever comes out of the FDA.
This is a time‐tested political stratagem that, frankly, works like a charm. How many times, for instance, have you heard Republican congressmen ranting in front of business audiences about the regulatory excesses of the EPA while on other occasions boasting of their votes for the Clean Air Act, Clean Water Act or whatever to green audiences? Through the artful dodge of delegation, politicians have perfected the art of having it both ways, never taking ultimate responsibility for anything controversial.
Is that good for democracy? Hardly. The buck shouldn’t stop with unelected civil servants. One of the fundamental premises of democracy is that those who make the law should be directly answerable to the people. As liberal law scholar John Hart Ely of Stanford has noted, “There can be little point in worrying about the distribution of the franchise and other personal political rights unless the important policy choices are being made by elected officials.”
Giving the FDA power to make, enforce, and adjudicate tobacco law is a recipe for regulatory zealotry. This, in fact, is the main reason that the anti‐tobacco lobby favors giving the FDA the authority to regulate in the first place. As John Adams wrote in 1776, “A single assembly, possessed of all the powers of government, would make arbitrary laws for their own interest, and adjudge all controversies in their own favor.”
It’s also an ill‐considered step toward a cultural civil war. One reason we have broadly based representative assemblies is to await something approaching a consensus before government intervenes in our lives. No such broad public consensus is necessary for bureaucracies to act. Legislative hurdles that serve to temper the power of slim political majorities are circumvented by agency rule making.
While smokers are in the political gun sights today, other groups will most assuredly find themselves there tomorrow. Might a Republican president, for instance, get around Congress’s refusal to ban partial birth abortions by asserting that the FDA can unilaterally outlaw the practice? The example is not so farfetched. In the 1980s, the so‐called gag rule (prohibiting federally funded birth control clinics from discussing abortion with their clients) was imposed administratively by the Reagan administration over the objections of Congress. Examples of bureaucratic agencies issuing laws that couldn’t pass legislative muster are legion; the only question is whose ox is being gored.
In the final analysis, delegated lawmaking subverts our constitutional design. Congress’s power to make law was delegated to it by the people, and nowhere in the Constitution is Congress given the power to delegate it’s lawmaking authority elsewhere. Congress cannot legitimately hand that authority off to the FDA, the American Bar Association, the United Nations or the Chicago Cubs outfield.
While the Supreme Court has unfortunately been known to look the other way, it has rationalized those exceptions as necessary bows to the complexity of certain regulatory tasks. But there’s nothing scientifically complex about the question of whether to prohibit nicotine in cigarettes.
Ultimately, it’s a question for the people, through their elected representatives, to decide.