Chief Justice Sam Spade, concurring,While I concur in the judgment of the Court, I find its reasoning to be deficient in many respects and mistaken in others.
Since the case is a challenge to the law on its face, the task before me is to answer a simple question: May the federal government regulate and even ban smoking in public places, whether they be federally-owned, regionally-owned or privately-owned?
But before I answer this question, let me step back for a second and build the foundation.
I.Although not raised at oral argument, I think it is unquestioned that the regions themselves, pursuant to their police powers to regulate public health and welfare, have authority to regulate or ban smoking in public places, whether regionally-owned or privately-owned. Moreover, I think it is undisputed that the federal government can utilize its much narrower police powers to regulate or ban smoking within federally-owned places (see Article I, Section 5, Clauses 26-27)
The reasoning on this point is simple. There is enough scientific evidence for me to conclude, without making it a crutch to back my argument, that smoking is at best, a nuisance, and at worst, an inherently dangerous activity. Moreover, I think there is enough scientific evidence to conclude that second-hand smoke in public places poses a health hazard to others. Regulation or prohibition of these types of activities clearly falls under the parameters of the police powers mentioned above.
II.Having concluded such, I am now left with the task of examining whether the federal government can regulate or ban smoking in public places, whether regionally-owned or privately-owned.
The majority begins by incorrectly concluding that Article I, Section 5, Clause 13 gives the government police powers to regulate or ban smoking.
In Peter v. Atlasia, the Court wrote concerning Article I, Section 5, Clause 13:
Furthermore, that Court also said:
This Court ignores this interpretation to give the phrase "conducting demonstrations" extraordinary power within Article I, Clause 5, Section 13, if not within the entire Constitution. To the Court, this phrase, in ignorance of other limiting language in the Clause, means "the taking of action to promote the Public Health",
whether negative or affirmative. Therefore, according to the majority, not only smoking bans in public places are included, but also any other regulations on any behavior, whether conducted in public or private, can be restricted through Article 1, Section 5, Clause 13 save where protected by other parts of the Constitution. The only other limitation on this grant of almost limitless federal regulatory power into every part of life is that the actions "must pass mustard with the scientific community and therefore must have a legitimate purpose." I cannot agree with this interpretation.
Rather, I think that the context surrounding "demonstration" directly contradicts the broad meaning the Court wishes to give the word. As the text tells us, "To promote the Public Health", the Senate is allowed to conduct "researches, investigations, experiments, demonstrations". The word "conduct" means many things, but when utilized with the following terms, the only possible meaning is "to direct", "to manage" or "to carry on". Moreover, the terms "research", "investigation" and "experiment" all involve the examination and questioning found in the scientific process.
Leaving aside the vague term "demonstration" for a second, the next part of the text tells us that these "demonstrations" must relate to the "cause, diagnosis or treatment of medical disorders". This second phrase limits the first phrase by defining the extent to which the Senate may pass legislation to promote the Public Health by "conducting demonstrations", etc. In short, the Senate must show that its legislation to "conduct demonstrations", etc. for the purposes of promoting the public health, must relate to the "cause, diagnosis or treatment of medical disorders."
In that context, I can now examine the term "demonstrations". Since the other terms relate to the process of discovery and examination, the proper definition for the term "demonstration" must be "the act of proving conclusively, as by reasoning or a show of evidence." In other words, the prior three terms acknowledge the Senate's power to regulate/fund the rigours of the scientific process in the "cause, diagnosis or treatment of medical disorders" and the fourth term, "demonstration" provides for the Senate's power to regulate/fund findings that come from the process itself.
Therefore, this definition of the phrase "conducting...demonstrations" fits with the Court's observations in Peter v. Atlasia that the first part of Article I, Section 5, Clause 13 "allows the Senate to pass legislation creating duties and responsibilities in certain organizations to conduct medical inquiries or research into both known and unknown medical disorders."
Moreover, this definition means that a power for the Senate to create smoking regulations or bans in public places cannot be found within this Clause, as such a ban has nothing to do with conducting/funding medical inquiries, research or regulating/funding findings from such research.
III.On the other hand, I think that Clause 1 of the 22nd Amendment does provide power to the federal government to regulate or ban smoking in public places, whether regionally-owned or privately-owned.
In contrast with Article I, Section 5, Clause 13, the 22nd Amendment begins with the language "To protect the Public Health and commerce". "Protect" most clearly means "to defend or guard from attack", "to cover or shield from injury or danger". The word "protect", therefore, as opposed to the word "promote", limits the grant of “police power” in this Clause to
negative actions where “Public Health” is involved. A smoking ban, accordingly, with its negative connotations restricting freedom of action, fits here instead.
The rest of Clause 1 of the 22nd Amendment reads "by making such regulations as shall be necessary for the protection of those in employment". The operative word of this clause, ignored by the majority, is the term "necessary", which means "indispensible, requisite, essential." In short, if the regulation in question is "necessary for the protection of those in employment", then the law must be upheld so long as nothing else in the Constitution forbids it.
I think that, in this specific case, the answer is clearly yes. As noted above, there is enough scientific evidence to conclude that second-hand smoke in public places poses a health hazard to employees who work there. While there might be certain as-applied questions to its validity, like if the public place had no employees, or if the application of the particulars of the smoking ban infringed upon free speech rights or constituted an illegal search or seizure, the regulation, on its face, is plainly valid and necessary to protecting the Public Health of those in employment.
In sum, I would agree with the Court's conclusion that the 22nd amendment allows the Senate to utilize its police power to ban or regulate smoking in regionally-owned or privately-owned public establishments.
IV.I will spend few words on Petitioner's additional arguments, as they lack validity or consequence in my view.
There is no "right to smoke" that is protected by the Constitution. It strains credibility to think of free speech rights, liberty rights or property rights as forbidding Regions, and in this case, the federal government, from regulating or banning smoking.
Nor is there any reason for me to think that Petitioner's reflexive quoting of Article IV, Section 3, Clause 2 or Article VI, Section 1, Clause 15 will hold any weight when the Constitution specifically grants the federal government police powers, the most broad and far-reaching powers to protect the Public Health for the protection of those in employment.
In addition, any allowance for businesses who make 40% of gross revenue from smoking and other related activities to buy an exemption from the rules is allowable simply as a "necessary and proper" law for carrying out the Senate's intention of regulating and banning smoking in public places.
Petitioner's further equal protection claims concerning businesses open to the public and the amount of business income derived from smoking-related activities are distinctions without consequence. This specific discrimination against certain smoking-related businesses does not fail a rational-basis review test, where the purpose for such a distinction, namely the protection of employees from smoking-related diseases is clearly legitimate.
I would address Petitioner's Article I, Section 5, Clause 4 claim, but it's just silly. Just because the Senate is given the power to create a free and undistorted market does not they have to.
I believe that's all I have to say.
