- The Washington Times - Thursday, January 20, 2000

Before the U.S. Supreme Court this term is a particularly important case: Food and Drug Administration vs. Brown & Williamson Tobacco et al. The issue: whether the FDA has authority to regulate tobacco. The number of "friend of the court" briefs filed on behalf of tobacco foes can be measured in pounds, rather than pages, as various public groups righteously proclaim the evils of tobacco.

But the case is important not because of the controversy surrounding tobacco. Rather, it is important because it is about the legitimacy of government action. And the outcome may reveal whether democratic principles are alive and well in this republic, or, like so many other noble ideas, they will be sacrificed or redefined in the service of a lesser ethic: an empty assurance that our paternalistic government only has our best interests at heart.

The case does not ask whether the FDA ought to regulate tobacco. The case asks whether the FDA has the power to regulate it. And how the court answers that question will have implications reaching far beyond tobacco, because it applies to every government agency that develops a hankering for more regulatory power in other words, all of them.

Like every federal agency, the FDA's authority comes from Congress. And Congress never gave the FDA authority to regulate tobacco. In fact, the FDA operates under statutes enacted in 1906 and 1938, and, in all these years, the FDA knew it did not have authority to regulate tobacco; until, that is, 1996. That is when the FDA decided on its own that it ought to regulate tobacco because, in case you were not aware, smoking is bad for you. Yes, it's true. Nonetheless, people continue to smoke because it's perfectly legal and they choose to. But the administration's health czars are determined to save America from tobacco companies even if they have to trample on freedom, democracy and the rule of law to do it. And that is precisely what the FDA case is about.

The art of the end run that is, establishing government policy without actually succeeding in getting a law passed through Congress is achieving new heights in this administration, and examples abound, not just with respect to tobacco. Indeed, one U.S. Forest Service bureaucrat, Gloria Flora, stated in June that her agency would pursue its unauthorized new policy of, among other things, promoting "spiritual renewal" even if a new Congress and administration decides to repudiate such policies. Translation: We don't care what the law requires or what the American people demand through their elected representatives; we have our own agenda. As for those who disagree, as Ms. Flora put it: "They're dinosaurs. They'll die." What a charming sentiment, coming from a public servant. Thankfully, Ms. Flora recently resigned amid a small storm of public outrage.

And so it goes with all the executive agencies: the EPA, the Army Corps of Engineers, the Bureau of Land Management, etc. This administration has utterly failed to advance its policy goals through laws enacted by Congress for the very sound reason that, amazingly to them, not everyone is in favor of them. And so they simply foist their pet policies the Kyoto treaty, American Heritage Rivers, wilderness designations, and so forth on the American public through sheer regulatory muscle.

Thus, because the administration does not like smoking (other than indulging in the occasional cigar, which I understand goes all the way to the top of the current administration), it has no problem bypassing the constitutional requirement of actually getting Congress to hammer out a law in which all Americans get some say. Rather, administration officials just forge ahead as though the constitutional lawmaking requirements are merely bothersome technicalities. As zealous bureaucrats gleefully hasten to do the administration's bidding, the administration's admirers turn misty-eyed, their brows shining with rectitude. After all, they know what is best for the country even if everyone else disagrees.

If this administration is determined to have its way, let it achieve its goals through democratic processes, not raw exercises of power. As unattractive, unhealthy and unpopular as smoking is, one cannot help but feel that we are all even smokers and tobacco companies democratically entitled to have national tobacco policy arrived at by a perfectly nasty, unsatisfactory, compromise-ridden, spineless, legislative process in Congress. As ugly and inefficient as it is, it is infinitely more palatable than despotism. One hopes that, with this case, the Supreme Court will go some small way toward sparing us from tyranny, whether or not it is garbed in good intentions.

Anne M. Hayes is an attorney with the Pacific Legal Foundation. As a friend of the court, PLF supported the decision striking down FDA’s regulation in FDA vs. Brown & Williamson.

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