- The Washington Times - Thursday, March 23, 2000

Who elected agencies, courts anyway?

U.S. lawmakers fell one vote short this week of handing over control of tobacco marketing to federal regulators. No, not the lawmakers in Congress, who have pointedly denied the U.S. Food and Drug Administration (FDA) any such authority, but the lawmakers on the Supreme Court.

Four of them, led by Justice Stephen Breyer, were quite willing to junk decades of congressional and agency "precedent" to write a new law deputizing agency officials as tobacco-ads police. That their loss was so narrow is a measure of the meaninglessness of constitutional protections in the face of a power-happy administration and a complaisant, even supplicant, court.

The case began in 1996 with President Clinton's announcement in 1996 that FDA would begin regulating tobacco under its authority to ensure the safety of drugs and medical devices. It did so after abruptly discovering that cigarettes were both a drug nicotine and a device to deliver the nicotine to smokers. Therefore, the agency could, among other things, tell consumers where they were allowed to find cigarette machines, forbid anyone who even looked less than 27 years old from buying tobacco products without identification your papers, please strip product brand names off stock cars, billboards and gym bags, order the summary execution of Joe Camel and otherwise gag an ostensibly legal industry.

In short order, the administration ran into trouble in the courts. The 4th U.S. Circuit Court of Appeals looked in vain for a statutory basis for the agency's action. Instead it found evidence of drive-by regulating. The agency's actions, the court said, were "transparent" and "obvious sophistry." The issue, it said, is not whether the country needed more or better regulations to control tobacco use by adults or especially children. No, the 4th Circuit said, this case is about who has the power to make this type of major policy decision. And pending congressional authorization, it held, FDA does not.

That was the issue squarely facing the justices this week. Writing for the majority, Sandra Day O'Connor was at pains to detail just how much evidence there is that the real lawmakers never made FDA this country's smoking czar. In 1929, for example, Congress considered and rejected a bill to amend the Food and Drugs Act of June 30, 1906, by extending its provisions to tobacco and tobacco products. Likewise in April 1963, Rep. Morris Udall introduced a bill to amend the Federal Food, Drug, and Cosmetic Act so as to make it applicable to smoking products. Congress rejected it and four similar measures in both House and Senate over the next two years.

Meanwhile, in language accompanying legislation stripping the Consumer Product Safety Commission of the authority to regulate tobacco (which the agency received from, ahem, a court not Congress), Congress once again made clear who was to handle oversight of tobacco: The bill, said a Senate report, should "unmistakably reaffirm the clear mandate of the Congress that the basic regulation of tobacco and tobacco products is governed by the legislation dealing with the subject … and that any further regulation in this sensitive and complex area must be reserved for specific Congressional action."

In one law after another, lawmakers spelled out exactly what kind of restraints they wanted on tobacco marketing. Moreover, FDA itself routinely argued (up until about 1995 anyway) that tobacco was Congress', not FDA's, beat. When the 4th Circuit ruled against the administration in 1998, President Clinton himself complained bitterly that if lawmakers had only given him the authority to regulate tobacco by statute, the courts wouldn't have had to get involved in the controversy in the first place. But that's rather the point, isn't it?

Apparently the four justices never got the message because they went looking for that authority on a loophole-hunting expedition through U.S. law. What they settled on was statutory authority for FDA to regulate broadly drugs and devices for which companies have made some kind of health claim. The problem is that the tobacco companies claim no benefits from tobacco use. So the dissenters decided that if the companies had privately known of the pharmacological effects of smoking, that was as good as advertising them publicly. Hence, FDA could regulate them. The majority refused to go along with this reasoning, even though Justice O'Connor agreed that smoking is a serious public health risk. (One wonders if she sees no distinction between the very public dangers of infectious or communicable diseases versus the individual risks of smoking.)

But, again, this case demonstrates the power of an executive branch that deliberately sidesteps Congress to effect policy through regulators or courts against politically unsavory foes like gun makers, coal-fired generating plants, Bill Gates, states that don't want national monuments in their back yards and, yes, tobacco.

"The rise of administrative bodies," Justice Robert Jackson wrote in 1952, "probably has been the most significant legal trend of the last century and perhaps today more values are affected by their decisions than those of all the courts … They have also begun to have important consequences on personal rights. They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories."

The day may come when courts won't stop them. Tobacco companies, it's worth noting, won't be the only ones to suffer for it.

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