Tobacco Road

he Food and Drug Administration lacks the authority to regulate tobacco products, a federal appellate court panel has ruled . The Clinton administration plans to appeal, and the issue appears headed for the U.S. Supreme Court. But the opinion delivered Friday is a welcome rebuff to this president’s routine abuse of regulatory power.

    By a vote of 2-1, a panel of the Fourth Circuit U.S. Court of Appeals found that the Food and Drug Administration (FDA) exceeded its statutory reach in 1995, when then-Commissioner David Kessler — with White House backing — declared nicotine a drug, and cigarettes subject to FDA control as a drug-delivery device.

    It is all well and good that eliminating smoking ranks near the top of the Clinton agenda. But the White House has repeatedly resorted to regulation to achieve tobacco restrictions that it failed to win from Congress. Even the best of intentions do not justify such imperial pretensions.

    As the appeals court put it: “At its core, this case is about who has the power to make this type of major policy decision.”

    A lower court initially upheld the FDA’s regulation of cigarettes, but invalidated as unconstitutional new restrictions on tobacco marketing — including a billboard ban.

    In contrast, the appeals court panel recognized that Congress explicitly and repeatedly has blocked the FDA from regulating cigarettes. It is the constitutional prerogative of Congress — not the president — to delegate regulatory authority to the FDA.

    As recently as this summer, in fact, Congress rejected a bill that would have granted the FDA jurisdiction over tobacco products — as it has 20 times before. Lawmakers also have amended the Food, Drug and Cosmetic Act 69 times without extending FDA authority to smoking. Even past FDA commissioners have asserted time and again that the agency lacked jurisdiction.

    But this is an administration that has been impervious to the rule of law on more than one occasion. Just last month, a federal judge ruled that the Environmental Protection Agency manipulated data and violated rule-making procedures in declaring secondhand smoke a Class A carcinogen.

    The failure of Congress to crack down on tobacco products appears to reflect the nation’s ambivalence about smoking. Citizens are well aware of the health consequences of smoking, but they also are mindful that government nannyism creates more problems than it cures.

    Smoking rates have declined dramatically in the past two decades. Americans face a far greater risk from a president who defies the U.S. Constitution.