The following is an excerpt from OpinionJournal.com’s “Best of the Web” written by the editor, James Taranto.
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The Marlboro Mandate
Sometimes it’s wise to resist the temptation to form an opinion on every event related to culture and politics. The guys at MediaMatters .org note one such case under the headline “Fox Freaks Out Over CVS Ending Sales of Tobacco”:
On February 5, CVS Caremark announced that it would stop selling cigarettes and other tobacco products at its pharmacy stores by the beginning of October. . . .
On Fox’s The Real Story, host Gretchen Carlson approached the CVS decision with suspicion and a remarkably uninformed premise, asking, “Is it OK legally . . . to restrict tobacco availability in a private store like this?” She questioned her guests as to whether they would continue shopping at CVS and observed that, “For people who smoke, you know, they have a right to buy cigarettes. It’s not illegal.” . . .
And on Fox’s The Five, co-host Dana Perino tried to use the decision to attack President Obama’s signature health care law, saying, “I just wonder, is this President Obama now saying that corporations are allowed to have values and express them? Because if that’s the case, maybe corporations then don’t have to provide contraceptive care to their employees or their health plans. And the Supreme Court justices might want to think about that.”
It seems to us Perino has an interesting argument, to which we’ll return in a bit. But as for Carlson, MediaMutters has demonstrated the adage that even a blind nut finds a squirrel once in a while. Her question is indeed silly. Of course there is no law requiring a privately owned store to sell tobacco.
But what if there were?
Here’s a thought experiment. Suppose Congress enacted the following statute: “Any drugstore that is part of a chain with 20 or more locations doing business under the same name (regardless of the type of ownership of the locations) shall offer cigarettes and other tobacco products available for sale to its customers.” Call it the Marlboro Mandate.
You may object that this would be a foolish law. We agree, but it would not be entirely without precedent for Congress to pass a foolish law.
A libertarian like Reason’s Nick Gillispie–in whose view “it’s great whenever a business takes steps to implement its vision of social purpose”–would have a principled objection to such a law. But that objection would apply equally to a law prohibiting cigarette sales. And one assumes that although Gillespie applauds CVS for exercising “the freedom to sell what you want,” he does not approve of the letter sent by eight U.S. senators yesterday that, as thePuffington Host reports, “urged” Walgreen and Rite-Aid to follow CVS’s lead.
By contemporary liberal lights, however, the Marlboro Mandate would be a legitimate exercise of congressional power. The Supreme Court has long held to a highly expansive interpretation of the power to regulate interstate commerce. Thanks to the ObamaCare decision, Congress doesn’t have the power to mandate that individuals purchase a product, though even that would have been an open question if the liberal dissenters had prevailed on that point. But a command to retailers, especially to a nationwide retail chain like CVS, clearly qualifies. In fact, we borrowed the “20 or more locations” language from Section 4205 of ObamaCare, which mandates nutrition labeling on chain-restaurant menus.
CVS would have no legal case for the injury of having its shelf space commandeered or being deprived of the ability to decide which products were consistent with its corporate mission. To shut down any legal challenge, the government would merely have to show a “rational basis.” That’s a very low threshold to meet, requiring only that the government show some logical relationship between the law and a legitimate governmental end–say, standardizing the practices of pharmaceutical retailers or curbing cigarette smuggling by encouraging legal sales. A rational basis is not a test of public-policy wisdom; foolish, counterproductive, even ill-intentioned laws can easily pass.
Which brings us back to Dana Perino’s point. The only way for a commercial regulation to be held to a higher level of legal scrutiny than rational basis is if the party challenging it makes a claim that it either violates a constitutional right or conflicts with a statute like the Religious Freedom Restoration Act that is designed to function as an extension of rights against the government. If there were a Marlboro Mandate, it seems to us CVS would have a sympathetic case for a conscience exemption.
To be sure, this is a fanciful exercise in a culture in which hostile attitudes toward tobacco cross partisan and demographic lines. But attitudes can change, and it’s not hard to imagine those who take pleasure in the plight of Hobby Lobby and the Little Sisters of the Poor finding themselves on the wrong side of some future regulation. If the Supreme Court rules in favor of Hobby Lobby and the Little Sisters, those who complain the loudest may eventually come to see things differently.
For more “Best of the Web” click here and look for the “Best of the Web Today” link in the middle column below “Today’s Columnists.”