The Corner

Politics & Policy

On Tobacco, McConnell Embraces Federal Omnipotence

Senate Majority Leader Mitch McConnell (R., Ky.) speaks after a Republican policy lunch in Washington, D.C., January 29, 2019. (Joshua Roberts/Reuters)

Per the Atlanta Constitution, Senator Mitch McConnell is teaming up with Senator Tim Kaine of Virginia to make it more difficult for conservatives to limit the power of the federal government:

The Republican Leader of the U.S. Senate from Kentucky and a top Democrat from Virginia officially introduced a bill on Monday which would increase the minimum age to buy cigarettes and any other tobacco products from 18 to 21 years.

“Now is the time to do it,” McConnell said on the Senate floor, as he rattled off negative statistics about cancer related to tobacco use in the Bluegrass State.

“Our state once grew tobacco like none other, and now we’re being hit by the health consequences of tobacco use like none other,” McConnell said, noting the dangers of e-cigarettes and vaping to those under the age of 18.

“The health of our children is literally at stake,” McConnell added.

Let’s leave aside for a moment that 18-year-olds are not “children” — not “literally,” or otherwise — and focus instead on the fact that, by endorsing federal control in this area, McConnell is endorsing a view of the interstate commerce clause against which conservatives — and, often, the Republican party — have been arguing for years.

By design, the United States Constitution is a “charter of enumerated powers.” This means that, rather than according all power to the federal government, it grants it a specific range of powers and leaves the rest to the states and the people. In theory at least, if the federal government is not explicitly permitted to do something, it is not allowed to do it at all. Alas, since at least the New Deal this arrangement has been routinely bastardized — to the extent that we now arguably live under precisely the opposite settlement, within which the federal government is presumed to be able to do anything that it is not explicitly prohibited from doing. For decades now, restoring the Constitution as written has been one of the American Right’s primary aims.

This, naturally, has proven more difficult than it sounds — not least because if conservatives were to win this fight, the vast majority of the federal government’s present actions would be deemed instantly unconstitutional. Still, despite a generally poor showing, there have been some big and important wins. Most recently, the Supreme Court ruled in 2012’s National Federation of Independent Business v. Sebelius that (a) the federal government may not use the commerce clause to force the citizenry to buy a particular product, and (b) that there are at least some limits on the federal government’s capacity to bully the states into acquiescing with its preferred policies by threatening to withdraw funding. Together, these decisions reaffirmed the idea that, at least in principle, there exist some meaningful limits upon the federal government’s capacity to rearrange the country from Washington, D.C.

That was supposed to be a Good Thing. At the time, Mitch McConnell certainly thought it was. And yet, just seven years later, McConnell is enthusiastically backing a bill that reinforces the assumption of federal omnipotence — an assumption he’s supposed to be against — and which rides roughshod over the preferences of 36 of the 50 states in the union. This is bizarre. If the Republican party feels the need to get involved in this area, it should be in the other direction. Specifically, Republicans should be making the case that (a) the federal government does not enjoy the freestanding power to decide quotidian questions such as to whom tobacco may be sold, and (b) that to circumvent this limitation with aggressive spending rules, as the federal government has done with the national drinking age, is, in effect, to circumvent the core structure of the Constitution. Instead, McConnell’s bill tacitly endorses both justifications for action, while undermining the case for federalism and the age of majority into the bargain (if Kentucky is suffering from the “health consequences of tobacco,” Kentucky should change state law; why does everyone else have to?). Apparently, the national government can do whatever it likes if it’s for “the children.”

As a rule, I have never understood the conservative movement’s dislike for Mitch McConnell. He does not mind being unpopular, which is an important quality in a leader; he is excellent on judges; he is a free-speech champion; and, on balance, he has done a lot to move the ball over the years. But this? This is a disaster. Good luck outlining limiting principles with this on your record.


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