Federal drug regulations operate under the authority of Article, Section 8, Clause 3 of the U.S. Constitution, better known as the Commerce Clause, which reads:
The Congress shall have power ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes ...Laws regulating the possession of banned substances have also been found narrowly constitutional, on the basis that state-by-state legalization would constitute de facto nullification of federal laws regulating interstate commerce. This view was most recently upheld 6-3 in Gonzales v. Raich (2004). As Justice John Paul Stevens wrote for the majority:
Congress could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial.In short: There is no real difference, in practical terms, between regulating marijuana and marijuana products and regulating tobacco and tobacco products. Unless the Supreme Court were to radically change direction on this issue, which is unlikely, a federal ban on cigarettes would probably pass constitutional muster. To say that he federal government has the power to ban marijuana, but not cigarettes, is inconsistent; if it has the power to ban one, it has the power to ban both.
2. Cigarettes pose a grave public health hazard.
As Terry Martin, About.com's Quit Smoking Guide, explains:
- Cigarettes pose a wide range of health risks, including blindness, stroke, heart attacks, osteoporosis, and more forms of cancer and lung disease than you can shake a stick at.
- Cigarettes contain 599 additives, and function as "a delivery system for toxic chemicals and carcinogens."
- Nicotine is highly addictive.
While the government has the power to enact public smoking bans, there is no legitimate basis for laws restricting private smoking. We may as well pass laws prohibiting people from eating too much, or sleeping too little, or skipping medication, or taking on high-stress jobs.
Laws regulating personal conduct can be justified on three grounds:
- The Harm Principle, which states that laws are justified if they prevent individuals from causing harm to others. For strict civil libertarians, this is the only legitimate basis of law. Examples of Harm Principle laws include the vast bulk of the criminal code--laws dealing with murder, robbery, assault, fraud, and so forth.
- Morality Law, which prevent individuals from engaging in conduct that is offensive to the sensibilities of those in power, regardless of whether or not it harms others. Most Morality Law statutes have something to do with sex. Examples of Morality Laws include most obscenity laws, sodomy laws, and laws banning same-sex marriage.
- Paternalism, which prevents individuals from engaging in conduct that is harmful to themselves. While Morality Law tends to be a conservative idea, the logic of Paternalism is generally more common among liberals. Examples of Paternalism laws include, well, laws regulating private drug use. The logic of Paternalism ("Stop or you'll go blind!") is also frequently used in conjunction with Morality Law to regulate sexual activities.
2. Tobacco is essential to the economy of many rural communities.
As documented in a 2000 USDA report, restrictions on tobacco-related products do have a substantial impact on local economies. The report did not examine the potential effects of a full-scale ban, but even existing regulation poses an economic threat:
Public health policies intended to reduce the incidence of smoking-related disease adversely affect thousands of tobacco farmers, manufacturers, and other businesses that produce, distribute, and sell tobacco products ... Many tobacco farmers lack good alternatives to tobacco, and they have tobacco-specific equipment, buildings, and experience.
Where It Stands
Regardless of the arguments pro and con, a federal ban on cigarettes is a practical impossibility. Consider:
- Approximately 45 million Americans smoke.
- When voter turnout in 2004 (the highest since 1968) was only 125 million, any smoking ban would have such an overwhelmingly massive effect on U.S. politics that the party or politician responsible for the ban would soon lose all political power.
- The government simply does not have adequate law enforcement personnel to change the behavior of 45 million people by force.
- The tobacco lobby is one of the most powerful political forces in America.
- When California proposed a new 2006 tax referendum on tobacco extraction, tobacco companies were able to painlessly drop almost $70 million in advertisements to defeat it. To put this in perspective: Remember in 2004, when everybody talked about what a dynamo Howard Dean was because of his unparalleled fund-raising ability? Well, he raised $51 million.