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Forget for a moment, if you can, what you think about the dangers of tobacco and the wisdom or folly of government trying to regulate its use. Consider, instead, how you think the laws dictating your conduct should be enacted.
Three examples to ponder:
The Fort Wayne City Council enacted two ordinances regulating public smoking, one in the late 1990s and a much more restrictive one in 2007. In both cases, there were numerous public hearings at which citizens from all sides of the issue made impassioned pleas, everyone from health advocates talking about the dangers of secondhand smoke to restaurant owners arguing the right to set the rules governing their private property.
The General Assembly passed the Indiana Smoke Free Air Law in 2012, after a years-long campaign during which mounting pressure for change gradually eroded a strong legislative commitment to the status quo. In the five years prior to the law, numerous study committees debated expert testimony from scores of witnesses and studies citing a dizzying array of statistics.
The U.S. Food and Drug Administration officially changed the federal minimum age to buy all tobacco products from 18 to 21 on Dec. 20, 2019, the same day President Donald Trump signed a $1.4 trillion spending package that included approval for the change.
What the first two examples have in common that the third does not share is that by the time the laws went into effect, those affected by them had been given every opportunity to know what the changes were, whether they agreed with them or not. They knew what was allowed and not allowed, and what the penalties were for not complying.
After the FDA’s change, however, there was widespread confusion nationwide. The bill signed by Trump gave the FDA six months to change its policies and 90 days after the change to implement it. But it announced the change immediately, causing some retailers to think they had to comply right away and others to think they still had time, though none knew how much.
To be fair, we should probably be grateful that at least there was specific legislative authorization for the change, even if it was inserted in a massive budget bill at the last minute with no discussion.
The FDA is one of many federal agencies benefiting from Congress’ abdication of authority in giving them the power to set and adjudicated their own rules.
How many such agencies there are is not exactly known, but it was indicated in a 2015 Senate Judiciary Committee hearing that “there are over 430 departments, agencies, and sub-agencies in the federal government.”
They employ, according to public policy analyst Chuck DeVore, “220,000 federal regulators working with a regulatory budget of about $63 billion who write and enforce 185,000 pages of rules that cost the economy in the neighborhood of $1.9 trillion annually.”
From 1960 through 2017, the Federal Register of rules we must live by grew from 22,000 pages to 185,000: “As the United States was created, there were some half-dozen federal laws such as treason and counterfeiting that could send you to prison.
Now, violate any one of the estimated 300,000 rules — even if you’re completely unaware of the rule — and you may be sent to the federal slammer.
Perhaps your feelings about tobacco are too strong for you to separate what is done from how it is done. But substitute any activity some faceless functionary could define as a danger to you, someone else or any part of the organic or inorganic landscape deemed too fragile to survive without bureaucratic intervention. Drinking. Riding a bicycle or operating a crane. Buying flowers on the Internet or draining a pond on your farm. Walking one the sidewalk while chewing gum.
If you’re breaking some rule and doing it wrong, wouldn’t you like to know about it ahead of time instead of when you’re punished for it?
“Ignorance of the law” might still not be an excuse. But we should not accept it being the government’s clear intention.
Leo Morris, columnist for The Indiana Policy Review, is winner of the Hoosier Press Association’s award for Best Editorial Writer. Morris, as opinion editor of the Fort Wayne News-Sentinel, was named a finalist in editorial writing by the Pulitzer Prize committee. Contact him at firstname.lastname@example.org.