How is it constitutional for the federal government to impose a minimum smoking age when it can’t (at least not directly) impose a minimum drinking age? When Congress wanted to make the drinking age uniform at 21 they had block highway funds from states unless they raised their own drinking ages; is that how this nationwide minimum smoking age is going to work, or is it actually going to be a federal offense to sell tobacco to anyone under 21 now? Who’s going to enforce this; the states or the federal government?
It’s not guaranteed that the new federal age bill will pass constitutional muster with the courts. I’d rather not speculate on that question here.
I will note that there is a constitutional distinction between alcohol regulation and tobacco regulation. The Twenty-first amendment that repealed Prohibition contains the words (section 2) “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” While may not be obvious to the general public from the wording, this section has been interpreted by the courts to mean that states have extremely broad powers to regulate alcohol production, distribution, sale, and possession that the federal government can’t interfere with directly. (Courts have found that indirect pressure like withholding highway funds as an incentive to change state laws do not violate section 2). There is no analogous section in the Constitution that protects states’ regulation of tobacco products.
However, one area where congress expressly has the power of regulation is interstate commerce.
In 2009, congress passed a federal law which gave the food and drug administration the power to regulate the tobacco industry. Called the Family Smoking Prevention and Tobacco Control Act, it references the existence of tobacco in interstate commerce among other bases for regulation. I’m guessing, although I don’t know for sure, that this law provides the authority for the current administration to raise the smoking age.
That’s exactly how it’s going to work. They currently give out grant for substance abuse treatment, only if a state has a minimum smoking age of 18. The new law just changes it to 21.
I don’t think this is correct. The Federal government has passed a law that directly regulates the sale of tobacco products. There’s no backing into it with funding.
I’m hardly an expert on this law, and haven’t done much other than googling, but it looks like you are correct that the Federal government has traditionally used the power of the purse to influence state level regulation.
But it also looks like the federal government went ahead and just passed an overarching regulatory scheme for tobacco in 2009. I’m guessing that, since it is later in time than a law which initially refers to fiscal year 1994, it has superseded the implication in the law you cite that states can decide, on their own, what the smoking age is.
If Congress can ban the cultivation of a plant because that plant might be sold in interstate commerce (Gonzales v. Raich), why couldn’t it regulate the age of participants in an actual commercial transaction for some chopped up plants rolled up in a piece of paper?
It’s always been my understanding that Congress regulates ALL KINDS of things under Commerce Clause, and often on very contrived or far-fetched logic. For example, there was once some case about California (or maybe it was just Los Angeles) passing some kind of safety regulations regarding televisions. It was struck down on the grounds that it affected interstate commerce, since TV’s were made from components that may have been manufactured in many different states.
The point being, that just about ANY commerce can be considered to be interstate commerce if you just stretch your imagination enough, and thus subject to regulation by Congress and ONLY Congress. Even the anti-discrimination laws at the Federal level are justified on interstate commerce grounds, I’ve seen it mentioned.
A corollary of this has to do with the ascent of more conservative judges at various levels in recent years, especially at SCOTUS. They tend to disagree with excessive government regulation in general, and thus they tend to disagree with overly expansive applications of the Commerce Clause. There is fear in liberal/progressive circles that conservative judicial restraints on the Commerce Clause could go so far as to bringing federal anti-discrimination laws into question. :eek:
Cites: Sorry. This is just stuff I’ve read in op-eds in various mainstream media over the years.
Okay, a quick googling turns up many pages on the subject. Here’s one, for example, on the use of the Commerce Clause. This appears to be an excerpt from a law textbook.
Weed is still illegal in all 50 states due to it being illegal under federal law. Real light bulbs are illegal in all 50 states due to federal law. I’m not sure the fundamental difference between banning something and imposing an age restriction to buy it. Presumably the government could state it’s OK to buy weed or produce and incandescent light bulb if you were 21.
PF Sloan wrote a vivid song, EVE OF DESTRUCTION, with a line that drove passage (fastest ratification in history!) of the 26th Amendment: “You’re old enough to kill, but not for votin’.” The new version would be, “You’re old enough to kill, but not for smokin’.” Will a mass protest movement arise?
If the states don’t play ball, it would be nearly impossible to enforce the new limit. Are the federal marshalls going to conduct stings on convenience stores? Are underage smoking citations going to clog up the U.S. District Courts who are traditionally only there to combat “real” crimes?
I hope the Court uses this opportunity to put some real teeth into the 10th Amendment and adopt Justice Thomas’ view of it.