, Corbin, KY


June 27, 2014

Smoking-ban ruling impedes ‘ascendance of a fourth branch of government – the regulatory state’

CORBIN — Jim Waters is president of the Bluegrass Institute, Kentucky’s free-market think tank. Reach him at Read previously published columns at

There’s nothing like a massive sinkhole opening up and swallowing eight prized sports cars at the National Corvette Museum to increase ticket sales. Attendance at the Bowling Green attraction is up by as much as 70 percent during some recent months compared to a year ago.

And, there’s nothing like a ruling by the Kentucky Supreme Court on issues even remotely related to smoking bans to stir the passions of a commonwealth raised on tobacco.

I use the term “remotely” because the primary impact of last week’s Kentucky Supreme Court ruling will not prevent locally elected bodies from implementing smoking bans. The court in 2004 already gave its stamp of approval to such policies when it ruled in favor of Lexington’s smoking ban– the first in Burley Land.

Since then, some communities have voted to implement various restrictions on smoking in public places, including on privately owned property, while others have said “no.”

Some, like the Campbell County Fiscal Court, said “yes” in the waning days of its 2010 term to a comprehensive smoking ban that ignored the rights of private-property owners to allow a legal activity. (Yes, smoking is a nasty habit, but it not an illegal one – at least not for now.)

However, the first action of a new fiscal court when it took office in that Northern Kentucky community in January 2011 was to overturn that decision, which indicates that there still are some pretty savvy voters around who understand that successfully reducing smoking and dealing with its related health issues doesn’t require pummeling constitutionally protected property rights of restaurant and bar owners.

No matter the outcome of smoking-ban mandates– whether in Lexington, Louisville and other cities that have one or those communities that leave such decisions up to local business owners – it’s reasonable to require that such policies be made in the form of votes cast by elected officials.

What should be considered unreasonable  by all clear-thinking Kentuckians – no matter their personal views on smoking – and what provoked last week’s Supreme Court case is that a suffocating smoking ban was implemented and enforced with police-like powers in Bullitt County without even so much as a vote by an elected body.

Rather, it was put in place by well-intentioned health nannies running the county’s health board, which is appointed by the commonwealth’s health secretary in Frankfort. 

However, the good intentions of unelected health boards appointed by unelected bureaucrats could not overcome the high court’s concern about the rise of the regulatory state.

“An increase in the aggregate power of administrative agencies over the recent decades, if left unchecked, invites the ascendance of a fourth branch of government – the regulatory state,” the court stated in its 6-0 opinion.

Justice Bill Cunningham, who penned the colorful opinion, also concluded: “Where reasonable doubt exists concerning the proper scope of an administrative agency’s authority, it should be resolved against the agency.”

Imagine how such caution, if applied to out-of-control federal agencies, could provide badly needed protections for all Americans from the likes of an Environmental Protection Agency that has cost Kentucky more than 7,000 coal jobs since President Obama first took the oath of office or the Department of Education as it tries to force federal mandates regarding curriculum, testing and standards upon every family from Connecticut to California.

The court’s decision moves the bar much higher for all unelected regulatory agencies in Kentucky, including, but not limited to, health departments.

And while the ruling doesn’t end the war over government-imposed smoking bans, it does determine where those battles are fought – in government halls and at ballot boxes, not in health department board rooms led by unelected bureaucrats who dismiss, and often even disdain, the legislative process.  

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