Biden’s Toxic Menthol Ban

M aking yet another mockery of the Constitution’s insistence that the federal government’s powers remain “few and defined,” President Biden has announced that he intends to effect a national ban on the sale of menthol cigarettes. There is nothing left in America, it seems, that can escape the executive’s whim.

The Washington Post notes that the Biden administration is specifically targeting menthols because “African Americans have been disproportionately harmed” by them — which, once you strip out the jargon, is simply another way of saying that the Biden administration is targeting menthols because African Americans disproportionately like menthols. It can be tough nowadays to keep up with what is racist and what is not, but I’ll happily admit that I didn’t have “ban something black people like because they like it too much” on my Anti-Racist Bingo card. Time for me to say three Hail Kendis and two Our Joneses, and re-read the Revelation chapters in Robin DiAngelo’s book.

Libertarians such as myself are often accused of having an overly simplistic worldview: “Don’t tread on me” is all very well, we are told, until you get a hard case. But, whatever limitations our leave-me-alone-you-bastards approach might entail, it at least prevents us from becoming so confused as to talk ourselves into calling for legalizing marijuana while outlawing cigarettes. That this is where the contemporary Left is headed is, in and of itself, a touch strange. But, when one considers that a primary argument in favor of the decriminalization of weed is that it will improve the relationship between minorities and the police, it becomes stranger still. Is the problem with the War on Drugs that it has been targeting the wrong drug?

This risk here is not hypothetical. As the advocates of Biden’s proposal are quite happy to acknowledge, its explicit target is black Americans. “Tobacco opponents and civil rights groups,” the Post confirms, “say African Americans have been disproportionately hurt.” Why? Because they are the ones who use menthols. “In the 1950s,” the paper records, “only about 10 percent of Black smokers used menthol cigarettes. Today, that proportion is more than 85 percent, three times the rate for White smokers.” This being so, one wonders who the measure’s architects believe is likely to bear the brunt of enforcement.

The legal scholar Michelle Alexander has argued to great progressive fanfare that the War on Drugs was designed deliberately as “a contemporary system of racial control—relegating millions to a permanent second-class status.” If this is true, one must ask how opening up a new, explicitly African-American front in that war is going to help. A few years ago, a black man named Eric Garner was strangled to death on the streets of New York City as a result of the overzealous enforcement of Mayor Bloomberg’s sky-high cigarette taxes. The killing prompted protests in cities around the country — the original “I can’t breathe” demonstrations — and a national debate around the question of when and where the policing of minor infractions is worthwhile. At the time, I noticed a paradox within our discussion of the issue: “That those who believe these incidents to be rare are the ones making a strong case against the sort of laws that bring cops into contact with minor criminals; while those who believe that these things happen as a matter of routine reject such talk out of hand.”

So they do here. One does not need to share Michelle Alexander’s presumptions in order to believe that we should be reducing, not increasing, the number of instances in which the citizenry comes into contact with the police. David Brown, Dallas’s African-American police chief, has argued that we are “asking cops to do too much in this country.” “Every societal failure,” Brown says, “we put it off on the cops to solve.” To this long list of tasks, President Biden evidently wishes to add another. Remembering at least temporarily why it exists, the ACLU put out a statement last night highlighting precisely this objection. “The ban implemented by the Biden administration,” predicted the group’s senior legislative counsel, “will eventually foster an underground market that is sure to trigger criminal penalties which will disproportionately impact people of color and prioritize criminalization over public health and harm reduction.”

President Biden is an inchoate mess of a politician, and he has only one mode at his disposal: action. There’s a problem with crime? Well, then throw the kitchen sink at it. There’s a problem in Iraq? Well, then throw the kitchen sink at it. There was a shooting at a supermarket? Well, then . . . you get the idea. After a while, though, you throw too many kitchen sinks at once and you end up killing anyone unfortunate enough to be passing by. It should be lost on nobody that, at the same time as Biden is touting a ban on menthols that is openly targeted at black Americans, he is encouraging the passage of a federal police-reform bill that would open police officers up to lawsuits when their investigative behavior has a “disparate impact on individuals with a particular characteristic.” Such incoherence isn’t just indicative of lazy, slogan-driven thinking; it is dangerous enough to deserve its own warning sticker: this idea is hazardous to your health.