Show-Me Institute policy analyst Dave Roland provided this testimony to the Clayton City Council for a hearing held on May 12, 2009.

One of the reasons that America has long been known as the “land of opportunity” is that its citizens are understood to have the freedom to make decisions for themselves. Rather than having their lives dictated to them, as is the case in so many nations across the world, Americans engage in the pursuit of happiness by cultivating an extremely broad array of tastes and interests. We don’t have to enjoy the same kind of foods. We don’t have to listen to the same kind of music or watch the same television channels. We don’t have to have the same haircuts or wear the same types of clothing. We have the freedom to seek out the foods, music, TV channels, haircuts, and clothing that make us happy, and that is something to be celebrated!

This sort of freedom is particularly good for American entrepreneurs, as it allows them to cater to the interests of different groups of people — and by serving the interests of their patrons, they end up serving their own interests through the profits they generate. As you all are aware, businesses succeed or fail based on their ability to provide goods and services that people enjoy. In the context of restaurants, if they make visiting their restaurant enjoyable by offering quality food and the environment that their customers want, they will succeed. If people don’t like the food or the environment the restaurant offers, it will either have to change or it will fail. Because American businesses are so plentiful and because they are allowed to be so diverse, the competition for customers makes it very likely that the customers’ preferences will be identified and reflected in a community’s businesses.

Of course, a restaurant’s style of cuisine is only one factor that goes into people’s decisions about where to eat. Diners may also consider the expense of the menu or the ambiance of the dining room, including whether the establishments permit smoking. For the one in five Americans who smoke cigarettes, this is a pretty big consideration — if a business doesn’t allow smoking, it may well lose 20 percent of its potential customers. But this same question may also be a big consideration for a number of nonsmokers, and many may choose not to go to a restaurant if it allows smoking.

Currently, the businesses in Clayton have the ability to cater to each of these groups, and they make their decision about whether or not to permit smoking based on what they perceive to be their customers’ preferences. As a result, there are a number of Clayton restaurants (such as Il Vicino, Café Manhattan, and Remy’s, to name just a few) who believe that they can attract more customers by promoting a smoke-free environment — they actually see it as a competitive advantage that they can offer something that other nearby restaurants do not! Meanwhile, a number of other restaurants believe that refusing to allow smoking in their restaurants will cost them more customers than they would gain by making such a change. It’s a balance that each establishment must evaluate for themselves. If these businesses choose wisely, they will prosper. If they choose poorly, they will suffer.

All of this having been said, I believe that there are really two issues at work with those who are promoting the proposed smoking ban. On the one hand, there are those who truly believe that secondhand smoke is so dangerous to the community’s health that it must be restricted for everyone’s good. I don’t have time tonight to discuss why this ordinance insufficiently meets that concern, so I hope you’ll go to www.showmeinstitute.org to see my thoughts on that matter. But the second issue, and the one that I believe to be far more common in this community, is that while a great many of Clayton’s nonsmoking diners are perfectly willing to tolerate smoking in restaurants, they do consider it an annoyance. They think they might enjoy their dining experience a little bit more if it were smoke-free — but, as of right now, the annoyance caused by smoking is not enough for them to give up the things they really like about their favorite Clayton restaurants. Keep in mind that no one is forced to patronize or work for restaurants that permit smoking. If people were seriously concerned about the health implications of others’ smoking in the restaurants they patronize or work in, they would demonstrate their concern by taking their business or their labor elsewhere. And, gradually, more and more restaurants would go smoke-free in response. But, as of yet, the vast majority of diners in this area haven’t done that. So, ultimately, I just can’t believe that most of the public support for this ordinance is really so much about protecting the community’s health as it is forcing all businesses in this town to conform to the preferences of only part of the population.

Forced conformity might make some people happy, but it is fundamentally un-American. It would be a poor decision for Clayton — or any city — to adopt such a policy based on this sort of thinking.

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On July 7, Missouri’s lieutenant governor filed suit against the recently passed federal health care reform. It’s difficult to know exactly what to make of certain aspects of this lawsuit, because it assumes the manner in which the federal health care law will function — and it is not clear that the lawsuit’s assumptions are correct. Even if they are correct, however, there are a few issues that may prevent this lawsuit from proceeding.

The first is the question of standing. Before a court will consider and rule on a legal issue, plaintiffs must establish that there is a current case or controversy between themselves and any defendants. Where the government is the defendant, this usually means that the government must have taken some act that has caused a harm or detriment to the person filing the lawsuit. It is not usually sufficient simply for a law to be on the books; courts usually (although not always) require that there must have been some implementation of the law before they will address its validity. Also, it is important to remember that plaintiffs cannot generally bring claims on behalf of others.

This lawsuit has eight counts. Several of these assert rights properly belonging to the state of Missouri. The lieutenant governor suggests that because a state statute gives his office the responsibility to be an advocate for the state’s elderly citizens, he has authority to seek relief on behalf of the state government. Similarly, the lawsuit claims that the citizen plaintiffs, as taxpayers, have a right to raise these claims on behalf of the state government. It is possible that courts have previously found citizen taxpayers to have standing to sue on behalf of their state government, but I cannot think of any examples and I do think it unlikely. Thus, I don’t think a court is likely to agree to consider counts one, three, and four. And, even if the court did address them, I question the viability of several of the lawsuit’s assertions in these counts.

It may be correct that the federal government has no proper authority to require the state government to adopt certain programs (count one), no authority to compel the state government to make a payment to the federal Department of the Treasury (count three), and no authority to force the state government to increase state taxes in violation of the Missouri Constitution (count four) — but it is not particularly clear that the federal health care law would actually do any of these things. As I have pointed out, the lawsuit assumes that the law will be implemented in a particular way, but we cannot be sure that its assumptions are accurate. This has an enormous bearing on the validity of these claims.

Count two deals with the compensation provided to state officials, so it is at least arguable that the lieutenant governor could have standing to assert the claims of that count. The substance of the claim, however, is dubious. It seems highly unlikely that the federal government is not permitted to impose certain limitations on how the state of Missouri is permitted to compensate its employees. For example, would the state argue that it is not required to pay minimum wage or to comply with anti-discrimination laws? The principles of state sovereignty expressed in count two are, I believe, well made, but they do not necessarily demand a conclusion that the targeted provision of the federal health care law is unconstitutional.

Counts five and six address the individual insurance mandate, which does not even go into effect until 2014. I think the legal arguments in these counts are well-founded, but the claims are premature and will continue to be so until the mandate is actually implemented.

Count seven may actually have some legs. It addresses the provision of special treatment for citizens of certain states, which was incorporated into the health care law in order to secure the votes of certain congressional representatives. The count points out that these exemptions, or “grandfather” provisions, require that the law be applied differently to similarly situated citizens based on nothing other than their geography. That’s a powerful claim, assuming that the law will be implemented in the way that the lawsuit envisions. Those aspects of the statute go into force on Jan. 1, 2011, so it’s possible that the court will be willing to address them.

Count eight attacks the infamous “panels” that are expected to be established to evaluate the appropriate levels of treatment for various health care situations. The lawsuit assumes that these panels will have the power to forbid doctors to provide services to citizens willing to pay for them. If that assumption is correct, this count may have life — if and when the panels are ever constituted and actually issue the anticipated prohibitions. I do not, however, think that a court is likely to assess this claim until those things have taken place.

So, taken as a whole, I think it likely that the court will ultimately dismiss at least half of the claims raised in this lawsuit (and probably three quarters of them) as lacking either standing or ripeness. It is possible that the court will address the merits of counts two and seven. It is difficult to predict how the court will come out on count two, although I think it unlikely that the court will find a constitutional violation. If, however, the federal statute implements the provision targeted by count seven in the manner that the lawsuit anticipates, I think there is a very strong chance that it will be struck down as unconstitutional.

Dave Roland is a policy analyst at the Show-Me Institute, a Missouri-based think tank.

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