Up in smoke

Close, but no cigar. Or, more precisely: Close, but you can still keep your cigars. And cigarettes. And chewing tobacco. And constitutional separation of powers. In a 5-4 ruling on March 21, the Supreme Court decided the Clinton Administration had overstepped its bounds by attempting to regulate tobacco products as a drug. Writing for the majority, Justice Sandra Day O'Connor delivered a verbal slap to Mr. Clinton's Food and Drug Administration, which tried to claim powers that Congress had never granted: "No matter how important, conspicuous, and controversial the issue," Justice O'Connor wrote, "and regardless of how likely the public is to hold the Executive Branch politically accountable, an administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Congress. Courts must take care not to extend a statute's scope beyond the point where Congress indicated it would stop." For social conservatives, who are often ambivalent about tobacco-related regulation, the ruling elicited relatively little interest. But legal experts noted that it was a crucial victory for strict constructionism, the judicial philosophy that says the constitution must be interpreted according to the Founders' intent, not according to the political whims of the moment. The whims of the moment are overwhelmingly anti-tobacco-and for good reason. After years of stonewalling, tobacco company executives have finally admitted the obvious: that nicotine is addictive. Only 2.5 percent of smokers manage to break that addiction each year, and they're largely replaced by the thousands of teenagers who sample cigarettes and get hooked. "By no means do we question the seriousness of the problem that the FDA has sought to address," Justice O'Connor conceded. "The agency has amply demonstrated that tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States." Congress has tried for decades to cut down on smoking. Cigarette packages have borne warning labels since 1965, and TV ads for cigarettes were banned in 1971. But the Clinton administration wanted much more. It fought with Congress for wide-ranging sanctions against tobacco companies, including higher "sin taxes" on cigarettes, bolder warning labels, further advertising curbs, and mandated targets for reductions in youth smoking. When Congress balked at such tactics, the Clinton bureaucracy made an end run. In 1996, the Food and Drug Administration reversed its own 60-year policy and decided unilaterally that it did indeed have jurisdiction over tobacco products. It immediately issued new guidelines federalizing the minimum smoking age, requiring stores to demand photo IDs from tobacco purchasers under age 27, and all but doing away with cigarette vending machines. And that was just the beginning: FDA commissioner David Kessler made it plain that he wanted to ban smoking altogether. The court's decision invalidates all of that. Justice O'Connor and her colleagues agreed that the FDA had usurped the authority of Congress and violated the separation of powers guaranteed by the Constitution. Tobacco may well deserve more regulation, the court decided, but that was up to Congress, not the executive branch. With several multibillion-dollar class-action suits still pending against the industry, even tobacco opponents took the loss in stride. Indeed, almost no one seemed to believe that the administration's power grab would withstand judicial scrutiny. "I guess I was surprised it was so close," said John Coale, a Washington class-action attorney who has represented anti-smoking groups. "I was never optimistic that they would let the FDA regulate. You had a whole history of Congress never touching this.... It would have been a leap for the court to go there." Still, the court nearly did go there. The line between the executive and legislative branches was upheld by only a single vote. Other important recent decisions have likewise been won or lost by the narrowest possible margin:

So pronounced is the court's 5-4 split that the two sides frequently take shots at each other in their opinions. Indeed, dissenting opinions by the court's liberal faction-Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens-are often described as "scathing," "bitter," or "blistering." That emotion may stem from the very precariousness of the court's balance of power. Lacking just one vote, the liberals are so close to victory they can taste it. If either Justice O'Connor or Chief Justice William Rehnquist-the oldest members of the conservative faction-were to resign during a Democratic administration, the high court would have an unassailable majority of judicial activists, eager to reshape American society from behind the bench. For conservatives who wonder if they have a real, meaningful choice in November, no issue looms larger than Supreme Court appointments. Although he won't agree to a pro-life litmus test for his judges, George W. Bush has vowed to appoint only strict constructionists who will interpret the Constitution "as written." That would preclude not only judges who favor Roe vs. Wade, but those who favor judicial activism of all kinds. Al Gore, on the other hand, has called the Constitution a "living and breathing document, that ... was intended by our Founders to be interpreted in the light of the constantly evolving experience of the American people." In other words, the Constitution should mean whatever a judge in the 21st century wants it to mean-unfettered by the sensibilities of those white-wigged Founders back in the 18th. A Gore majority on the Supreme Court would doubtless have ruled against the tobacco industry. No great loss, in a narrow sense. But ultimately, it would have been the constitutional separation of powers that went up in smoke.