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National Ban on Smoking in Public Housing Is Unconstitutional, Lawsuit Says

Tenants are challenging a HUD rule that requires local public housing authorities across the country to prohibit people from smoking in their homes.

New York City Housing AuthorityNew York City Housing AuthorityA policy that is scheduled to take effect next Monday prohibits smoking in and near public housing throughout the country, affecting 1.2 million households in units managed by about 3,300 local agencies. According to a 2016 Observer editorial, "it may be the most far-reaching, intrusive and over-reaching executive order of the entire Obama administration." In a lawsuit filed today, six smokers who live in public housing argue that the ban violates their rights, exceeds the Department of Housing and Urban Development's statutory authority, cannot be justified as a regulation of interstate commerce, and unconstitutionally commandeers state and local officials by ordering them to carry out federal policy.

The smoking ban, which covers low-income housing that is federally subsidized but owned and operated by local public housing authorities (PHAs), applies to living units as well as common areas and extends to a zone 25 feet around each building. The policy is the result of a 2015 HUD rule that aimed to "improve indoor air quality in the housing, benefit the health of public housing tenants and PHA staff, reduce the risk of catastrophic fires, and lower overall maintenance costs." The lawsuit, which was organized by New York City Citizens Lobbying Against Smoker Harassment (NYC CLASH) and filed in the U.S. District Court for the District of Columbia, argues that HUD has no business regulating indoor air quality or trying to dictate what people do in the privacy of their homes.

"Anti-smokers claim that HUD's smoking ban is a valid exercise of government power because there is no general 'right to smoke,'" CLASH founder Audrey Silk says in a press release, "but that claim is intentionally misleading because the government doesn't have the right to reach into our homes and dictate our personal behaviors and habits. This lawsuit is about defending the right to be left alone to engage in a legal activity in the privacy of one's own home."

The lawsuit notes that the Fourth Amendment applies to public housing and argues that enforcing the smoking ban will require warrantless, nonconsensual searches to detect violations. Furthermore, it says, the policy violates "the fundamental right to engage in a legal activity in a private home," an aspect of liberty protected by the Fifth and 14th amendments as well as the Fourth. The complaint says requiring people to give up that right if they want to continue living in public housing violates the "unconstitutional conditions doctrine," which says government benefits cannot be contingent on the recipients' willingness to waive their constitutional rights.

The HUD rule also runs afoul of the 10th Amendment, CLASH says, because it demands that the state and local officials who run public housing authorities impose a policy conceived by bureaucrats in Washington, D.C. "This is the exact type of explicit, naked 'commandeering' of state and local authorities that the anticommandeering rule was developed to prevent," the complaint says. "The Smoking Ban is a federal regulatory program, or federal policy, and HUD has issued a direct command to the PHAs to implement and enforce this regulatory program or policy."

Although HUD assumes that a tenant's smoking within his own house, apartment, or mobile home endangers people in other units, it presents no evidence of such a risk. In any case, CLASH notes, regulation of smoking is part of the general police power exercised by the states (which notably have refrained from trying to ban smoking inside people's homes), not the federal government. Whether someone smokes in the privacy of his home does not seem to implicate interstate commerce in a way that would justify federal action. Even if Congress had authorized HUD to ban smoking in public housing, CLASH says, "Congress may not regulate intrastate activities which do not have a 'substantial effect' on interstate commerce or are 'completely internal.'"

Many landlords, of course, include rules against smoking in their leases. But the HUD rule is different from a private landlord's lease condition in several significant ways. First, HUD is compelling the actual landlords, the PHAs, to comply with its plan, which raises the 10th Amendment issues outlined in the lawsuit. Second, the landlords are government agencies, so enforcing the smoking ban raises Fourth Amendment issues. Third, the new rule is being imposed on smokers who already live in public housing, forcing them outside in the cold, rain, or heat, frequently in dangerous, high-crime neighborhoods, to indulge in a legal habit they have heretofore been permitted to enjoy inside their homes.

Silk says "public health zealots" are "frustrated by the holdouts who've refused to submit to their current coercive measures and quit smoking," so they are "partnering with HUD to begin the despotic breaking down of front doors to reach them." She warns that "it won't end at public housing if they're not stopped here."

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  • The Last American Hero||

    Feed at the public trough, prepare for heartburn.

  • Cathy L||

    She warns that "it won't end at public housing if they're not stopped here."

    She's right.

  • BYODB||

    Fact is, it's already way past public housing. If anything, they're one of the last people who are getting fucked by this as it boomerangs back around on them.

  • Cathy L||

    In very few cities is it illegal for residential landlords to allow tenants to smoke.

    The commercial realm is way ahead of that, of course.

  • BYODB||

    Residential and commercial landlords don't generally want to see thousands of dollars in cost to get a property ready for another tenant, so that market takes care of itself.

    I mean public buildings and spaces, and I triple dog dare you to find a State building that lets you smoke inside. Public parks and outdoor spaces might not outright ban smoking, but at least some of them do and that's outside.

    Remember Arnold's cigar smoking tent in California? The internet 'members.

    My main point being that it's astounding that residential units owned by the State were still allowing smoking, but then again maybe they were hoping that they'd burn to the ground and take the residents with the building? Their insurance rates must be terrible.

  • MasterThief||

    Not a fan of the top-down approach to this. Still, when the taxpayer is paying for the properties then I'd think we have an interest in keeping them well maintained and discouraging behaviour that degrades the value of those properties. I question whether the reason this is being put in place is because the taxpayer is paying the bill for tenants of public housing damaging the properties they are staying in for free (or subsidized.) The argument that a person living off of the taxpayer is entitled to full rights as a citizen also rubs me the wrong way. To a lesser extent, people in public housing do not own or have a financial investment in the properties so why would they have full rights to use it as they wish? That is a shit argument. I'll agree that a person has full rights to use their own property as they wish, but that is not the case here. I live in a rented apartment and there are a bunch of limitations on how I can use the property. This is as it should be and I would put more restrictions on someone whose life I am forced to subsidize.

  • bct2000||

    Exactly what will happen. People don't see the big picture. If the government is allowed to restrict one voluntary action at one end, this will lead to further restriction of individual freedom. If a private landlord wants to ban smoking on their property, they have a right to do so, and tenants can choose to rent there or at another rental property. In the future, I can see new homes being required to have detectors set up to detect tobacco smoke, with a system to communicate any positive results to federal authorities.

  • sarcasmic||

    Put nicotine into schedule 1. Problem solved.

  • Longtobefree||

    Actually, problem driven underground.
    If smoking tobacco is illegal, and (in many states) smoking weed is legal, what outcome do you predict?

  • Scarecrow Repair & Chippering||

    Whoosh!

  • sarcasmic||

    That was sar.. never mind.

  • Oli||

    his ackshually trumps your internet sarcasm

  • Rich||

    cannot be justified as a regulation of interstate commerce

    Oh, REALLY?!

  • Longtobefree||

    A ham sandwich can be indicted for being interstate commerce - - - - - - - -

  • sarcasmic||

    The making of that ham sandwich might cause a ham sandwich from another state to not be imported, therefore that ham sandwich has a substantial effect on interstate commerce. Jeez. Didn't Wickard teach you anything?

  • Diane Reynolds (Paul.)||

    It may be unconstitutional, but it's good for you. And that trumps the constitution.

  • sarcasmic||

    What is it, compelling government interest or something?

  • Earth Skeptic||

    No, compelling Nanny-ism.

  • Longtobefree||

    "Tenants are challenging a HUD rule that requires local public housing authorities across the country to prohibit people from smoking in their homes."

    Seems that the units are not actually the tenants, but the governments. The feds can punt this one by simply changing the regulation to prohibit federal funds to state and local agencies that permit smoking. Let the locals 'decide' on their own to allow smoking (and fully fund the give away) or not allow smoking (and get the federal tax money)

    Blame the insurance, that is what private landlords do.

    Or in an act of utter desperation, do away with the whole program.

  • Bearded Spock||

    Good.

    Anti-smoking activists are the perfect example of "eat-your-peas" totalitarianism; it's always a good day when they lose.

  • Cathy L||

    They haven't lost yet.

  • JesseAz||

    The government is the property owner. They have an interest in maintaining the value of their property. This "they can't do it" argument is laughably idioitic.

  • NoVaNick||

    If you don't quit, we must evict

  • ||

    HUD has no business regulating indoor air quality or trying to dictate what people do in the privacy of their homes...the policy violates "the fundamental right to engage in a legal activity in a private home,".

    If only public housing was either of those things. Marriott and Hilton have no trouble telling me what I can do in my room in spite of my right to privacy.

  • Rossami||

    Marriott and Hilton can tell you to do that because they are private entities making it a condition of the lease. Likewise, an individual landlord (whether paid by HUD or not) can make non-smoking a condition of the lease. Don't like it? Find another landlord or hotel.

    As the article makes clear, the problem is that HUD is the government - and the Constitution explicitly restricts what the federal government may do (or tell you to do).

  • JesseAz||

    What an ignorant argument. The government in this case is the landlord. The Same interests Marriot or hilton have the government has. There's is no right to smoke. My god. Just stop.

  • Rossami||

    No, the government is most explicitly not the landlord. HUD is a third-party payor of leases between qualified tenants and private landlords.

    Nor does this issue have anything to do with a "right to smoke". This argument is about whether an arm of the federal government is acting within their enumerated powers by the way they are attempting to regulate smoking in this particular case.

  • BYODB||

    Wow, what do you know. Both sides of this one are assholes.

  • sarcasmic||

    When force is involved, that is a fair assumption in almost all cases.

  • BYODB||

    I get a special kind of migraine when people who are living off the dole have more rights and recourse than your average citizen / renter.

  • sarcasmic||

    I'm being sued by my ex, whose new husband makes more money than me. According to the courts if I win and she has to pay child support, it will be based upon her income. Not household income. And if I lose the courts might make me pay her legal bills because my personal income is more than her personal income. So what if their household income eclipses mine. The system is rigged for deadbeats.

  • NoVaNick||

    So your ex has a strong incentive not to work, in other words... and a lose/lose for you. Sorry to hear that!

  • BYODB||

    Yeah, I absolutely agree. That arena of law is left over from when women were barely even considered people by the courts, yet infuriatingly there are few feminists who seem to have a problem with that fact.

  • Devastator||

    why should her new husband have to pay for your kids? fuck dude, you're supposed to watch out for your progeny. That's like basic humanity 101

  • DiegoF||

    This is the natural order of things in general. The rules the government can set for a public park, a public school, its public employees, are always more constrained than what could be done by a private party at its discretion. This is in itself a good thing; in return for the fact that it is the one party that has permission to aggress as none others have license, we keep wary and close restraints on the scope and discretion that the government has in its action. Of course, out of that very same sense of caution we should be going still further to minimize government, so that e.g. it does not even run public housing facilities. But the overall point still stands.

  • BYODB||


    Of course, out of that very same sense of caution we should be going still further to minimize government, so that e.g. it does not even run public housing facilities.

    Of course.

    The argument made in the article is the correct one in that the FedGov absolutely should not be dictating this but the bat shit insane part is that federal dollars are still assisting in the payment. Which is, of course, the hammer that will be used to nail these people back down.

    The 'renters' pushing this are in for a rude awakening when the State turns around and says 'oh, yeah, smoking is illegal in these units now' or the Fed says 'no more money until no more smoking' which they are still 'allowed' to do.

    Which at the end of the day means these individuals are effectively wasting their time, but I guess they want to be fucked by the proper process. I can at least acknowledge that's reasonable.

  • perlchpr||

    This was well put.

  • JesseAz||

    the problem with your argument is you are equating public places with subsidized benefits. I'd have no problem with not allowing smoking to be banned, which they actually do in the places you mention if I can freely walk through random HUD houses.

  • JesseAz||

    Nobody is forcing people to live in subsidized housing.

  • NoVaNick||

    All part of the war on nicotine-this same ban also ordered HUD to consider a ban on vaping in public housing too, although I am not sure if it includes it. I doubt the tenants will succeed in their lawsuit, because nobody gives a shit about smokers rights anymore. If I were in their position though, I would simply buy some incense and burn that all the time.

    I could see this getting really ugly by the way, if someone rats out their neighbor for smoking-POW, POW, POW!

  • JesseAz||

    Smoking devalues the property. Are you going to call for a ban on vandalism laws for public property next?

  • Earth Skeptic||

    Next: no Doritos in public housing.

    (I was going to say no fried chicken, but that would be racisit.)

    (But Doritos might be racisit.) (But probably not the cool ranch version.)

  • DiegoF||

    Is cool ranch a wypipo stereotype? I think you can counteract that by washing it down with a grape soda. (Although this is always a wise pairing as well.)

  • $park¥ The Misanthrope||

    At least someone had the good sense to mention Zima in that thread. However, since Doritos are Mexican food, the question really should be what tequila pairs with them.

  • perlchpr||

    I usually use "bacon double cheeseburgers" as my example food for that sort of ban.

    And I fuckin' love me some bacon double cheeseburgers. Especially green chile bacon double cheeseburgers (yes I live in New Mexico now fuck off.)

    But at any rate I don't think bacon double cheeseburgers has any race connotations except possibly towards white people, in which case it's basically the same thing or even a win, as far as people who actually care about such things are concerned.

  • JesseAz||

    I was unaware that eating Doritos caused a smell to permeate walls and carpets. You're eating them wrong.

  • Juice||

    National Ban on Smoking in Public Housing Is Unconstitutional, Lawsuit Says

    Unlike federal public housing...

  • Brandybuck||

    When these first bans against smoking in your own home started to go into effect, a friend and I were tempted to market a pot scented air freshener, so if the cops came by you could claim you were just smoking politically correct weed. Every day such a product becomes more and more urgent.

    Also, only Trumptards smoke, so it's okay to ban smoking in the privacy of ones own home. This is a tribal issue, dammit!

  • NoVaNick||

    I have no doubt that this ban will be every bit as successful as gun bans and drug bans have been in public housing.

  • DiegoF||

    Or as the ban on smoking in the halls and stairwells that has been in place for decades now. Despite the enormous new blank license for action (and bodycams don't even come with smell-o-vision yet) it gives them, housing cops actually don't want this new law, which shows you just how pervasive and burdensome a pain in the ass it threatens to be.

  • ||

    Determining whether someone is a smoker, and to a lesser extent, determining if they are smoking inside or within 25 feet of a building is in plain view to a large extent. Smokers are accustomed to the smell of tobacco to the extent that whether or not another person is a smoker too may well be a mystery to them until they see that person light something.

    But to non-smokers, there is little if any mystery about it. Someone who smokes is obviously a smoker, unless they take extreme measures to conceal it. If someone is obviously a frequent smoker, is at home for extended periods, and never steps out into a designated smoking area, then it doesn't take a rocket scientist to figure out that they must be smoking in a prohibited area.

    The evidence is in plain view.

  • sarcasmic||

    The nose knows....

    Back when I was a tobacco smoker, I rolled my own. Not stuffing tubes, but rolling by hand. I'd preroll a few before work with a green tip. My first puff would be Mary Jane, but the rest was regular old tobaccy. I'd exhale that first hit, and then look around and say "You smell that? Is someone smoking pot?" while I finished my tobacco cigarette.

    Nobody ever caught on.

    Ah, to be young again.

  • NoVaNick||

    Since I switched to vaping, I too have become much more aware of the smell of tobacco smoke that I didn't notice as much back when I was a smoker. There is not much that can be done to cover it up, but I doubt anyone who lives in public housing is really going to care enough to rat out a smoker, especially if it could end in violence for the one who rats them out.

  • Billy Bones||

    So, you are saying that I cannot smoke in my apartment that I fork out $1,500/mo, but I have to pay for someone else's apartment (through taxation) that we cannot tell them they cannot smoke? So, basically a deadbeat living of the government's dime has more rights than I do as a hard working, tax paying citizen. Situation Normal, All Fucked UP!!

  • DiegoF||

    Where do you live, one of a handful of California cities where you cannot smoke in apartments? Even they have not gone that far pervasively.

  • BYODB||

    I would be shocked if there is anywhere left that allowed smoking on the lease. Even the premade leases you can look up generally disallow any smoking of anything, including lit candles.

    Which is entirely rational from an owner standpoint. A house that smells like cigarette smoke after they leave won't rent for as much, and is a massive pain and cost to even pretend to repair. Believe me, I know this for a fact since we had to help clean out a house where people smoked for 35 years. You wouldn't believe what it does to a home or building, let alone an HVAC system.

  • DiegoF||

    I have no doubt that this will eventually happen eventually, to the overwhelming majority (not all) buildings--probably proceeding about a decade behind the phaseout of smoking rooms in hotels, where the smell thing is a much bigger factor. It would probably have happened even without the secondhand smoke disinformation campaign that is trying to instill paranoia in nonsmoking tenants.

    But that day is still far from here. Even in NYC, where there are fewer than 20 hotels with any smoking rooms left across the five boroughs, after nearly two decades of pushing hard by Bloomberg and DeBlasio--including a multimilliondollar, multimedia ad campaign depicting things like secondhand smoke snaking through walls into the nose and lungs of babies playing at the opposite apartment of the building, begging tenants to badger landlords into banning smoking--they still have so little to show for it (outside a certain submarket) that they had to pass a law this fall "nudging" landlords to ban smoking by forcing them to otherwise explicitly indicate that they are a smoking building on the lease.

  • BYODB||

    Well, I mean in New York they impose laws that basically mean that the building is never getting maintenance anyway so why wouldn't the landlord encourage the tenants to burn it down for the insurance money? It's probably the only way they'll ever make money...

    /semi-sarcasm

    At least that's what my father would say, having grown up in the Bronx in the 1950's.

  • perlchpr||

    Perverse incentives are still incentives.

  • Cathy L||

    So, you are saying that I cannot smoke in my apartment that I fork out $1,500/mo, but I have to pay for someone else's apartment (through taxation) that we cannot tell them they cannot smoke? So, basically a deadbeat living of the government's dime has more rights than I do as a hard working, tax paying citizen.

    No. The issue is that your private landlord has more rights than the government.

  • BYODB||

    As usual, you managed to get your statement exactly backwards.

  • Rossami||

    No, Cathy has this one exactly right. The private landlord can include no-smoking as a condition of the lease. You consent to that rule by agreeing to the lease. Don't like it? Find another landlord.

    It's also true that state governments have more rights to regulate than the federal government. The US Constitution is built on the principle of enumerated powers while states have "general police powers". So states can pass a general "no smoking" law where the feds may not.

  • BYODB||

    Yes except the State as landlord can set the same requirement, as you yourself point out. The 'or to the people' section is generally ignored but still counts in specific situations.

  • Rossami||

    I think I see the confusion. The State is not landlord in HUD-funded housing. HUD is merely a third-party payor of the leases between qualified tenants and private landlords.

  • perlchpr||

    Only insofar as the government has "powers" and not "rights".

    But yes, the private landlord absolutely has more rights, from both a legal and ethical standpoint, than the government does. And that's how it should be, because in the end, your landlord can't point a gun at you and force you to continue living in his house.

  • BYODB||


    and that's how it should be, because in the end, your landlord can't point a gun at you and force you to continue living in his house.


    Ah, but they can and the gun they use would be 'government'. The issue here is the lack of differentiation between 'state' or 'federal' government.

  • DiegoF||

    I for one hope the popipo win the right to smoke, in the privacy of their own homes, either the smooth enjoyable nicotine-free non-menthol cigarettes we will have under libertarian FDA commissioner Scott Gottlieb, or the regular ciggies everyone will be buying from the Mafia (the way we already do in New York). If they are lactose intolerant they can wash it down with some delicious soy or almond nonmilk beverage, and munch on some delicious bread that only costs a wee little bit more because the neighborhood bakery that made it has to post nutrition information for it to be sold at the local supermarket.

  • wreckinball||

    The landlord can ban smoking. Public housing is not a "public" place. Its private residences that the gov't is the landlord of.

  • Rossami||

    If the government were the landlord, your analysis would be correct. However, they are not. HUD is merely a third-party payor of the lease. The landlord is a private entity with his/her own rights and, most importantly, with complete ownership of and responsibility for the residence.

    Note: The government is the landlord on, for example, military bases. And no-smoking bans in the barracks are entirely legal for that reason.

  • BYODB||

    This is a great point that I had forgotten. Section 8 is subsidized not outright owned. I'm not sure if that's the case here, but it seems probable.

  • JesseAz||

    By proxy the government is responsible for ensured safety and maintenance of all section 8 housing units. They have an interest in all aspects of the unit. They are not merely a banking interest.

  • Don't look at me.||

    Smoking should be mandatory in public housing. Hell, the should be given free cigs too. It would reduce the roles of those on the dole.

  • DiegoF||

    It would save the public money too. Like going helmetless, it's actually better for healthcare costs.

  • Don't look at me.||

    Boost the supply of organs for transplants.

  • al-saulinsky||

    Yous axeps da manz munz yous axeps da manz rulz.

  • ||

    I think the argument against a ban on smoking based upon an absence of danger is weak. Obviously, bon fires are legal, and obviously, the government would have a right to ban bonfires in public housing. I suspect the government could come up with statistics showing the number of fires in rental housing caused by smoking. The stronger argument relates to the government's right to force local public housing authorities to ban smoking. South Dakota v. Dole suggests that the government can go quite a way in forcing government-demanded action by states, and hence by local authorities. And the government might be able to do indirectly what it can't do directly -- withhold federal funds to those agencies or entities out of compliance.

  • perlchpr||

    Although HUD assumes that a tenant's smoking within his own house, apartment, or mobile home endangers people in other units, it presents no evidence of such a risk.

    If they're going to go down that road they'd best ensure that none of the units have gas stoves, for one, or hair dryers, curling irons, microwave ovens, toaster ovens, fireplaces, or gas heating, first.

  • Cindy Lilly||

    You are spot on.

  • Mickey Rat||

    I doubt the tenants have standing to make a 10th amendment claim. With the government being the landlord, a 4th amendment claim is plausible but seems weak as it would imply the landlord has no authority to enter the home no matter what the lease agreement is, which seems untenable for maintenance and other rules.

  • Echospinner||

    Is there free Chantix?

    I checked on a discount Rx coupon site. First month is around $430. Anybody up for paying that?

    So the head of HUD is Dr. Ben Carson. He was a neurosurgeon in his day.

    Law enforcement is the worst idea. He should know this.

    What was the problem in the first place? Cigarette consumption has been declining for decades in the US.

  • NoVaNick||

    This plan was actually launched under the Obama administration. Ben Carson had nothing to do with it, though I am sure he is not a fan of smoking.

    Is there free Chantix?

    It shouldn't be a secret by now that BigPharma has been funding smoking bans and higher taxes through various non-profits and kickbacks to local politicians in order to increase sales of Chantix and nicotine gum and patches, but e-cigarettes have taken a big bite out of their profits.

    What was the problem in the first place? Cigarette consumption has been declining for decades in the US.

    Progress is never enough for progtards, what they are always after is a final solution/endgame. In fact, the WHO has set a date of 2030 I believe for the world to be "tobacco free" and every new ban including now on where tobacco can be sold and what products are available, is a step towards that.

  • ohdelilah||

    "The right to be left alone to engage in legal activity in the privacy of your own home." Like it was legal to smoke pot or take codeine for pain or snort cocaine or use meth until it wasn't. If smoking is banned, then it isn't legal anymore, is it? And if freedom only means the right to left alone to do things that are legal, then freedom doesn't exist at all.

  • Cindy Lilly||

    I totally agree that it is unconstitutional. The elderly and handicapped should not be forced outside. Fix the plumbing, mold and crime over worrying about a cigarette. There is scientific talk of second hand alcohol molecules being carcinogenic to others. Twenty years from now we should all support the ban on alcohol? Where does it end? Funny too that drug deals going down everywhere and they turn a blind eye but your neighbor will call the police if you enjoy a legal cigarette, something the Indians have enjoyed for thousand years. No more Nanny State.

  • Butler T. Reynolds||

    I'm no legal scholar, but where in the constitution is HUD authorized to even exist in the first place? Problem solved.

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