Democracy’s at Stake in the Fight over Tobacco Regulation

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The recent Supreme Court decision that the Food and DrugAdministration(FDA) has no statutory authority to regulate cigarettes has returned thequestion of whether and how to regulate tobacco to Congress. If you thinkthis is but another chapter in the ongoing war over tobacco, think again.The Court's decision sets the stage for a debate with far-reachingimplications: Who, ultimately, should be primarily charged with making law,the legislature or the bureaucracy? Even those bored with the tobacco warshould pay very close attention to what happens next.

The anti-tobacco lobby wants the FDA to have the power to regulatecigarette marketing and manufacturing because it fears that Congress willnot. They're probably right. Congress has repeatedly rejected legislationto codify the regulations proposed by the FDA and the anti-tobacco lobby.Moreover, there is no appetite on the Hill for regulating nicotine out ofcigarettes -- the professed goal of the anti-tobacco advocates and many atthe FDA.

So instead, the anti-tobacco forces are campaigning energetically togetCongress to voluntarily delegate its lawmaking authority to the FDA.Congress might go along, because congressmen hate alienating well-organizedpolitical factions. Do that too often, and you find yourself out of a job.By punting the issue to the FDA, congressmen can simultaneously please theanti-tobacco crowd and give speeches against nanny-state regulation. Afterall, their fingerprints won't be on whatever comes out of the FDA.

This is a time-tested political stratagem that, frankly, works likeacharm. How many times, for instance, have you heard Republican congressmenranting in front of business audiences about the regulatory excesses of theEPA 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 ofdelegation, politicians have perfected the art of having it both ways, nevertaking ultimate responsibility for anything controversial.

Is that good for democracy? Hardly. The buck shouldn't stop with unelectedcivil servants. One of the fundamental premises of democracy is that thosewho make the law should be directly answerable to the people. As liberallaw scholar John Hart Ely of Stanford has noted, "There can be little pointin worrying about the distribution of the franchise and other personalpolitical rights unless the important policy choices are being made byelected officials."

Giving the FDA power to make, enforce, and adjudicate tobacco law is arecipe for regulatory zealotry. This, in fact, is the main reason that theanti-tobacco lobby favors giving the FDA the authority to regulate in thefirst place. As John Adams wrote in 1776, "A single assembly, possessed ofall the powers of government, would make arbitrary laws for their owninterest, and adjudge all controversies in their own favor."

It's also an ill-considered step toward a cultural civil war. One reason wehave broadly based representative assemblies is to await somethingapproaching a consensus before government intervenes in our lives. No suchbroad public consensus is necessary for bureaucracies to act. Legislativehurdles that serve to temper the power of slim political majorities arecircumvented by agency rule making.

While smokers are in the political gun sights today, other groups will mostassuredly find themselves there tomorrow. Might a Republican president, forinstance, get around Congress's refusal to ban partial birth abortions byasserting that the FDA can unilaterally outlaw the practice? The example isnot so farfetched. In the 1980s, the so-called gag rule (prohibitingfederally funded birth control clinics from discussing abortion with theirclients) was imposed administratively by the Reagan administration over theobjections of Congress. Examples of bureaucratic agencies issuing laws thatcouldn't pass legislative muster are legion; the only question is whose oxis being gored.

In the final analysis, delegated lawmaking subverts our constitutionaldesign. Congress's power to make law was delegated to it by the people, andnowhere in the Constitution is Congress given the power to delegate it'slawmaking authority elsewhere. Congress cannot legitimately hand thatauthority off to the FDA, the American Bar Association, the United Nationsor 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 ofcertain regulatory tasks. But there's nothing scientifically complex aboutthe question of whether to prohibit nicotine in cigarettes.

Ultimately, it's a question for the people, through their electedrepresentatives, to decide.