Opinion: Make America Vape Again | Yosef Stein

The disease of authoritarianism thrives on the virus of mass hysteria. This unfortunate reality was once again thrust into stark view on September 11, when President Trump convened a press gaggle in the Oval Office to announce that his administration intends to ban the sale of all flavored vape products. In lockstep with the president, several Democratic governors and legislatures across the country immediately announced plans to explore similar prohibitions, with Michigan, New York and Massachusetts becoming the first states to outlaw the sale of flavored e-cigarette paraphernalia, and a number of other states expected to follow suit. Not to be outdone, New Jersey’s Democratic Senate President Steve Sweeney recently opined that banning flavored vape pods does not go far enough, calling for a full and immediate ban on all e-cigarette products, flavored or otherwise. The fact that this nanny state policy proposal – reactionary in its nature and altogether devoid of any rational thought – finds a home in both major political parties proves yet again that neither side has a monopoly on ill-conceived and thoughtlessly reflexive policy positions. It is also confirmation of my long-standing belief that the only political convention more dangerous than partisanship is bipartisanship.

These astonishing instances of governmental overreach followed in the wake of several weeks of widespread public panic (as government overreach often does), which in turn had originated with the sensationalist media (as public panic often does). When several hundred Americans suddenly contracted “serious respiratory illnesses” that were linked to vaping, and 14 of those people died, the media seized on the story and proceeded to monger all the fear they could in order to drive traffic to their websites and eyeballs to their breathless television coverage. While this piece in no way advocates that anyone should smoke e-cigarettes (contrary to the implication of its clickbait-y title) and certainly does not argue that vaping is harmless, we will hereinafter explore two general and distinct reasons that the proposed federal ban on flavored vaping products is not only misguided, but immoral.

REASON #1: BANNING VAPES IS BAD POLICY

The first reason that no thinking person should support a ban on vapes, flavored or otherwise, is that the policy’s underlying rationale is faultier than an abandoned oil pipeline. For starters, according to the CDC, a significant majority of the vape-related deaths and illnesses have been linked not with Juul pods or similar devices manufactured by competing name brands, but rather with knockoff, black market “homebrew” vaping cartridges – most of them containing THC, which is not present in any Juul products.

This fact illustrates the utter absurdity of shutting down the legal flavored vape industry in response to these incidents. Why should the legal market suffer just because illicit operators are selling dangerous products? Moreover, shutting down the legal flavored vape market will only impel a greater number of consumers to turn to the very black-market sellers who are distributing these dangerous devices in the first place! Banning legal vape sales is an idea so counterproductive that it could only have originated in the brain of a government bureaucrat.

Very much related to this point is the extensively documented reality that prohibition simply does not work. Precisely one century ago, in the year 1919, a bunch of brilliant politicians agreed that it would be a good idea to ban the manufacture, sale and distribution of alcohol via Constitutional Amendment. What ensued was unmitigated disaster – rampant bootlegging and unlawful distilling, a lucrative stream of funding for organized crime syndicates, and spikes in violent crime across the nation’s major cities. Just 14 years later, the states repealed the Amendment and allowed alcohol to be sold and consumed once again. Parallels may accurately be drawn between the unintended consequences of Prohibition and those of the failed War On Drugs, but that comparison is beyond the scope of this article.

Finally, the actual and proposed vape bans lay bare the blatant inconsistencies and hypocrisies that are endemic to many government policies, including this one. 480,000 Americans die every year as a result of cigarette-smoking. Approximately 90,000 die as a result of excessive alcohol consumption. Both alcohol and tobacco are legal, and both should remain so – because we live in a free country. The absurdity of banning vapes because they killed 14 people, while half a million Americans are legally smoking themselves to death each year, is self-evident.

True, many of the criticisms that surround vaping are associated with usage by teenagers – as well as the availability of flavors which opponents claim are aimed to target children. This logic fails to persuade me, however, and it should fail to persuade you too. In America, we do not ban age-restricted products just because younger people might be able to get their hands on them. Rather, we do the best we can to limit teenage access by prohibiting the sale of such merchandise to minors.

As for flavors being “designed to target children,” there are a couple of points to be made. First of all, if the concern revolves around just a few flavors like Bubble Gum and Captain Crunch, then why not simply ban those instead of banning all flavors other than tobacco? Secondly, last time I checked, adults like flavors too. The existence of flavored vape cartridges does not prove that e-cigarette companies are targeting underage users, as their detractors claim. The foolishness of the “flavors target kids” argument is further exposed by the fact that flavored alcoholic beverages and flavored tobacco products are legal and available in American stores, and nobody has ever argued that liqueur and chewing tobacco are designed to appeal to children.

The ban on flavored pods will likely detract from the appeal of e-cigarettes (as intended), causing many to lean more heavily on tobacco and discouraging cigarette smokers from making the switch to vaping – which still apparently remains a less deadly alternative. The situation at hand is reminiscent of a famous and strikingly prescient Benjamin Franklin quote: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

REASON #2: BANNING VAPES IS UNCONSTITUTIONAL

‘Now, hold up,’ you may be thinking. ‘That’s crazy! The Constitution doesn’t say anything about vaping!’ While that may be true, there are at least two counts on which Trump’s proposed vape ban violates the US Constitution.

Article 1, Section 1 of the Constitution of the United States of America, second only to the timeless “We the People” Preamble, reads as follows:

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Rather unambiguous, right? Only Congress has the authority to make laws, as we were all taught in Third Grade. (The president can veto bills he doesn’t like, but he cannot make law.) So how did we get to the point in this country where the president believes he has the unilateral authority to ban flavored vape products by executive fiat, absent an act of Congress? The short answer is that the Overton Window of Executive Branch authority has been shifting for years, as Congress has (illegally) delegated more and more of its lawmaking authority to Executive Branch agencies overseen by the president. These agencies issue what are commonly referred to as “regulations,” which are laws written by anonymous, unelected and unaccountable Executive Branch bureaucrats who ultimately work for the president – in open defiance of both the letter and spirit of the Constitution.

Congress’ supposed ability to authorize the Executive Branch to promulgate regulations hinges upon a highly questionable (to be generous) legal doctrine that has been developed over the years by the US Supreme Court. It may be referred to as the “substantial discretion” doctrine. While the Supreme Court has consistently acknowledged that Congress cannot delegate its exclusive legislative powers to any other party (what is known as the “nondelegation” doctrine), over the decades the Justices have allowed Congress to pass laws that grant Executive Branch regulators “substantial discretion to implement and enforce the laws” passed by Congress, as Justice Elena Kagan recently put it in the Supreme Court’s decision in Gundy v. United States.

It is apparent that, in practice, a significant percentage of regulations run well afoul even of this generous (and decidedly controversial) judicial dispensation. President Trump’s proposed vaping regulations are a particularly egregious example, and a symptom of the unconstitutional reality that the Executive Branch has swallowed up increasingly sizeable portions of Congress’ lawmaking responsibilities – to the point where the president can wake up one morning and decide to outlaw a popular product without an act of Congress, and barely anyone bats an eyelid about the president’s Constitutional authority to do so, or the lack thereof. This unconstitutional power grab by the Executive Branch cannot be tolerated, and it pushes us further down the slippery slope of snowballing presidential power.

As an example of how harmful a precedent Trump’s flavored vape ban sets, suppose that the next Democratic president determines that for environmental or animal-rights reasons, nobody should be permitted to slaughter, sell or consume meat products. If the president has the power to unilaterally direct the FDA to ban vape products, who’s to determine that the president cannot similarly direct the FDA to ban meat? Who will draw the line? Such a line certainly won’t be found in the Constitution, whose limitations our Executive Branch has long ago left behind.

While executive authority is the primary Constitutional issue here, I would be remiss if I did not note a second reason that the proposed ban likely cannot pass Constitutional muster – even if it were to be passed into law by Congress. In the 1910s, proponents of a new 18th Amendment to outlaw alcohol knew that a Constitutional Amendment was necessary to effect the policy change they desired; an act of Congress would not suffice. One of the reasons for this is the Constitution’s Commerce Clause, which states that Congress may regulate commerce “among the several States,” which as of a hundred years ago had always been construed to mean that Congress may only regulate interstate commerce. Because the 10th Amendment plainly states that the federal government does not have any powers not specifically delegated to it in the Constitution, federal regulation of intrastate commerce was considered unconstitutional. However, the Supreme Court later extended Congress’ regulatory authority under the Commerce Clause even to commerce that occurs entirely within a single state. It is a sorry reflection on the state of our Constitutional republic that in just 100 years we have gone from Constitutional Amendment to presidential whim when it comes to robbing everyday Americans of their individual liberties.

In conclusion, this issue is about far more than just vaping – which is why even non-vapers such as myself should sit up and pay attention. As we have demonstrated, this is about the federal government exceeding its lawful powers under the Constitution written and ratified by We the People. It’s about the ongoing usurpation of legislative power by the Executive Branch, which is entirely unconstitutional and does not bode well for the future of our great republic. It’s about individual liberty and limited government – and the advancement of sound Congressional policies, not laws that are reactionary, inconsistent, and haphazardly applied.

But it’s not all bad news. The silver lining here is that Juul and other interested parties may well sue the federal government over the illegality of this latest presidential power grab. Such a case, assuming it is brought, may end up before the Supreme Court – where the Justices will have an opportunity to take a fresh look at the “substantial discretion” doctrine (which some of them have recently expressed openness to revisiting) and reevaluate the limitations thereof. While it is certainly too much to hope that the Supreme Court will strike down the bulk of our unconstitutional federal bureaucracy in one fell swoop, even a narrow loss for the administration on the issue of vaping would in itself set the modern-day “imperial presidency” back on its heels – and would establish an important precedent in favor of curbing executive power going forward.

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17 COMMENTS

  1. Are you actually recommending that people should be able to vape? That is absolutely nuts. Whatever happened to Venishmartem Meod LNafshoseichem. There is no heter to smoke or to vape, and whoever sells these products is Mesayaa Yad Oivrei Aveira and is Oiver on Lifnei Iver Lol Siten Michshol.

  2. Smoking Cigarettes and Vapes are both bad for your health. As it said d in Torah “Watch your own Health”.
    It worst thing to harm yourself. I am non smoker. And non drinker. I think people should quit and breath healthier and eat right food.

  3. I am not advocating vaping either, but the switness that this ban has gained momentum is shocking, especially considering that vaping has been around for almost a decade yet no reported instances of vaping related instances existed till this year. Additionally, so far in 76% of the reported illnesses, those who were ill reported vaping with HTC, a banned substance.

    Some numbers that may explain the speed in which this ban is gaining momentum. NJ collects $3.25 per pack of cigarettes in taxes. The federal government collects over $1 per pack of cigarettes. The government is losing a massive stream of “income” by peopel switching from cigarettes to vaping.

    Another thing of note. Recently Philip Morris received FDA approval for IQOS in the U.S. It is similar to vaping, but it does not use liquid and instead heats up tobacco paper (but does not burn). IQOS is already sold in most of the world, and now that it has FDA approval is expected to be rolled out across the U.S. It would not be subject to these bans. Interestingly, as a Tobacco Product, it likely will be taxed in the same way cigarettes are.

  4. Wow, long, long piece and I did NOT read the whole thing, just the first few paragraphs but I liked what I saw and I agree 100%. I never anything suddenly deemed illegal, in so many states in so short a time frame without any real credible investigation. No, vaping is NOT healthy but it’s not such a sakana Nefashos if you buy normal, untampered flavors. Vape the Grape.

  5. For any of you who only read the title and not the rest of the article, the author is not advocating for or promoting vaping! He is explaining the dangers of a President unilaterally deciding to make such a law which is unconstitutional. And anyway it is not very effective. Just like the Prohibition did not stop drinking, this law will not stop vaping. It will just be riskier under the table.

  6. @JustWondering you are spot on. The government will allow juul and others back on the market once they can “regulate it” (figure a way to tax it). The government cares about their tax dollars. If they can tax marijuana, they’ll make it legal. The don’t tax e-cigarettes so if there is the slightest issue they will find a reason to ban it and then “regulate” it.

  7. Very well written. Bravo.
    If you read the article, he is clearly not advocating that anyone should be vaping.
    In short, he is saying the president should not be able to decide in one minute what products America is able to use. Imagine he decided to ban meat or alcohol. Would that be ok also?

  8. Very well written piece. And while we are on the topic of health, many more people die of obesity than of smoking or vaping. Therefore, I’d ban French fries b4 I ban smoking.
    @Well said : What’s Vape the Grape ? Is that a song ? A flavor ? I’m lost here.

  9. Kudos to the states that have shown leadership in putting an end to this terrible dangerous epidemic! And kudos to our President for demonstrating his leadership on this important public health issue. Neither of Mr. Stein’s “reasons” are valid. This is an important role for government to play when the public’s health is at risk. Hopefully, the stay on implementation of the NY law will be swiftly overturned and all states will follow suit!

  10. I was happy to hear that it is under scrutiny and possibly becoming illegal. That was only because I don’t want my 13 year old bochur getting started with this. It has become somewhat of a challenge that the schools have been dealing with from around 6th grade and on. And although I don’t know whether it is truly unhealthy or not, imho we need to see years of data before we can say inhaling all those chemicals is perfectly safe.
    That said, I actually agree with the writer that this ban is too extreme because if it’s this today who knows what they’ll ban tomorrow? Also some of this stinks of a hidden agenda by someone who has $$ in it some how. The very same legislators who are “up in arms” about this are at the same time fully intrested in legalizing marijuana. That itself is strange as most of the people who fell ill were actually vaping some form of marijuana so something definitely stinks here…

  11. Why in the world would you put so much thought into this?
    Are you the one who was selling e-cigarettes and vape juice to my young son?? If so, I don’t forgive you.
    How can you advocate for a habit so low? This is for losers and you want everyone to think it’s okay? Very disappointed that TLS would print this.

  12. @BerishWoolstein is absolutely correct. Do to the fact there is no second hand smoking involved here, shouldn’t this be up to each individual’s own discretion? ( Just like the government can’t tell me how much shnitzel to eat!)

  13. If you feel the government MUST ban something because your sixth grader is getting ahold of it illegally, you missed the parenting boat somewhere. Enjoy the swim.

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