February 12, 2014

JAMES TARANTO: The Marlboro Mandate: What if drugstores had to sell cigarettes?

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. . . .

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.

Well, it’s not as if they’re Christers or something.