SPC vs. Atlasia

[SPC]

I would like for the Atlasian Supreme Court to hear my case challenging the constitutionality of FL 33-8, the Protection of Public Health Act:

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[Marokai Backbeat]

Would you care to, I don't know, elaborate? You can't just claim something is unconstitutional, you know.

Once you do that, I'll be happy to let the others know.

[SPC]

Article I, Section 5, Clauses 13 and 14 outline specifically what the government may do for reasons of public health:

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Clearly a law prohibiting smoking does not qualify for any of these standards, and by Article IV, Section 3, Clause 2:

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The Atlasian government lacks the power to prohibit smoking.

[Marokai Backbeat]

De-lightful. I'll let the others know now.

[Sam Spade]

Official Atlasia Supreme Court Release
Nyman, DC

Writ of Certiorari
The Atlasian Supreme Court grants certiorari to hear this case.

Schedule
Petitioner has seventy-two hours to file his brief.  It is expected no later than 5:00PM EDT on Tuesday, March 9, 2010.

Respondent has an additional forty-eight hours to file his brief.  It is expected no later than 5:00PM EDT on Thursday, March 11, 2010.

Amicus Briefs will be accepted until 5:00PM EDT, Tuesday, March 9, 2010, unless the filing party can show sufficient need.

Additional time may be granted to either party upon a showing of sufficient need.

A possible period of argument (Q&A) may be scheduled after presentation of the briefs in case any member of the Court has any questions for the parties.

[Sam Spade]

As some preliminary questions from the CJ, even though this isn't in the cert, I'm going to ask:

1) How does the 22nd amendment impact this case?
2) What does the statute mean when it says that the places covered by "buildings and establishments open to the public?"  Does this mean every federal/regional/private place that is commonly open to the public?  Does it mean something even broader than that?  Or something more narrow?  What I'm getting at is what is the "line" in application.
3) Am I reading correctly that the only person who can be punished for an act of smoking is the person smoking, not the business - in that case, Clause 4 makes no sense, but this question may be just a question along my usual lines of "the Senate doesn't know what the f-ck its doing legislative drafting question", not anything unconstitutional.

[Purple State]

As some preliminary questions from the CJ, even though this isn't in the cert, I'm going to ask:

1) How does the 22nd amendment impact this case?
2) What does the statute mean when it says that the places covered by "buildings and establishments open to the public?"  Does this mean every federal/regional/private place that is commonly open to the public?  Does it mean something even broader than that?  Or something more narrow?  What I'm getting at is what is the "line" in application.
3) Am I reading correctly that the only person who can be punished for an act of smoking is the person smoking, not the business - in that case, Clause 4 makes no sense, but this question may be just a question along my usual lines of "the Senate doesn't know what the f-ck its doing legislative drafting question", not anything unconstitutional.

For Clause 4, I believe the legislation is saying that people can smoke is those sorts of facilities or establishments. The wording is a bit non-parallel but that seems to be what it means.

[Sam Spade]

As some preliminary questions from the CJ, even though this isn't in the cert, I'm going to ask:

1) How does the 22nd amendment impact this case?
2) What does the statute mean when it says that the places covered by "buildings and establishments open to the public?"  Does this mean every federal/regional/private place that is commonly open to the public?  Does it mean something even broader than that?  Or something more narrow?  What I'm getting at is what is the "line" in application.
3) Am I reading correctly that the only person who can be punished for an act of smoking is the person smoking, not the business - in that case, Clause 4 makes no sense, but this question may be just a question along my usual lines of "the Senate doesn't know what the f-ck its doing legislative drafting question", not anything unconstitutional.

For Clause 4, I believe the legislation is saying that people can smoke is those sorts of facilities or establishments. The wording is a bit non-parallel but that seems to be what it means.

I'm not around here to debate legislation - but that clause is almost irrelevant.  In fact, the effect of the whole legislation is to push individuals to create private clubs where people smoke. 

[Marokai Backbeat]

In fact, the effect of the whole legislation is to push individuals to create private clubs where people smoke. 

Pretty much.

[Purple State]

As some preliminary questions from the CJ, even though this isn't in the cert, I'm going to ask:

1) How does the 22nd amendment impact this case?
2) What does the statute mean when it says that the places covered by "buildings and establishments open to the public?"  Does this mean every federal/regional/private place that is commonly open to the public?  Does it mean something even broader than that?  Or something more narrow?  What I'm getting at is what is the "line" in application.
3) Am I reading correctly that the only person who can be punished for an act of smoking is the person smoking, not the business - in that case, Clause 4 makes no sense, but this question may be just a question along my usual lines of "the Senate doesn't know what the f-ck its doing legislative drafting question", not anything unconstitutional.

For Clause 4, I believe the legislation is saying that people can smoke is those sorts of facilities or establishments. The wording is a bit non-parallel but that seems to be what it means.

I'm not around here to debate legislation - but that clause is almost irrelevant.  In fact, the effect of the whole legislation is to push individuals to create private clubs where people smoke. 

Hey, if it's the Senate's prerogative to make modern opium dens, who am I to stop them.

[SPC]

Statement of Facts
The Protection of Public Health Act was enacted on September 27, 2009, after the Senate overrid President Lief's veto. Here is the text of the act:

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Questions Presented
Is it constitutional for the Senate to pass laws protecting public health by prohibiting voluntary actions? Is it constitutional for the Senate to apply different standards to different businesses?

Argument
There are only three places in the Constitution where public health is mentioned. Article I, Section 5, Clause 13 gives the Senate the power "To promote the Public Health, by the conducting of researches, investigations, experiments, and demonstrations relating to the cause, diagnosis, and treatment of medical disorders and by assisting and fostering such research activities by public and private agencies." Clearly there is nothing in the Protection of Public Health act pertaining to research. Article I, Section 5, Clause 14 gives the Senate the power “To protect the Public Health and commerce, by providing for the quarantine, vaccination, and treatment of individuals, animals and plants as needed to prevent the spread of contagious diseases.” The Protection of Public Health Act does not specify anything regarding quarantine, vaccination, and treatment of smokers or tobacco. Finally, the 22nd Amendment to the Constitution states, “The Senate shall have power, save where limited by other provisions of this Constitution:

1.   To protect the Public Health and commerce by making such regulations as shall be necessary for the protection of those in employment. 2. To protect the Public Health, commerce and heritage by making such regulations as shall be necessary for the protection and preservation of natural beauty, biological diversity and other natural resources.”

The Protection of Public Health Act says nothing about protecting those in employment or natural resources, as it bans smoking in any establishment open to the public. Thus, there cannot be found any constitutional justification for prohibiting smoking for public health reasons. Thus, under Article IV, Section 3, Clause 2, which states, “The powers not delegated to the Republic of Atlasia by the Constitution, nor prohibited by it to the Regions, are reserved to the Regions respectively, or to the people,” the power to to prohibit smoking to reserved to the regions or the people, and under Article VI, Section 1, Clause 15, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” the right of the people to smoke in public areas cannot be denied.

However, even if one were to ignore all of that, Article I, Section 5, Clause 4 gives the Senate the power “To provide an area of Freedom, Security and Justice without internal frontiers, and a single market where competition is free and undistorted.” How can it be said that the Senate is providing a single market with free competition when it prohibits anyone in an establishment with fewer that 40% of its annual gross revenue coming from the sale of alcohol, tobacco, and paraphernalia from smoking? Additionally, Article VI, Section 1, Clause 2 states, “No agency of government shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Again, how can there be equal protection under the law when the law may be unequally applied depending on the revenue of the establishment in which you are smoking? For that matter, how can there be equal protection under the law when the law may be unequally applied depending on whether the building you are in is open to the public?

Conclusion
The Senate is not empowered to prohibit smoking anywhere in the Constitution. Even if it were, the Senate would not be empowered to unequally apply this prohibition toward different establishments.

[Marokai Backbeat]

Just a friendly reminder for Atlasia.

[Barnes]

Just a friendly reminder for Atlasia.

I thank the Justice. I apologize for my lack of action in this case. I've been really busy these past few days, but I will have the brief tomorrow.

[Barnes]

Argument for the Defense:

The Constitution of Atlasia states:

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Smoking is a danger to the public health. The damage inflicted to a non-smoker who is in the vicinity of a smoker is greater than the actual damage afflicted to the smoker, and it stands to reason that this would be a danger to the Public Health.

Furthermore, this bill only outlaws smoking in public areas and not areas that are privately owned. These areas include parks, libraries, schools, etc. The Government has responsibility over these locations, and it has a responsibility to preserve the public health.

[Sam Spade]

Neither party has even pretended to answer these questions, which are the only ones I care about.

As some preliminary questions from the CJ, even though this isn't in the cert, I'm going to ask:

1) How does the 22nd amendment impact this case?
2) What does the statute mean when it says that the places covered by "buildings and establishments open to the public?"  Does this mean every federal/regional/private place that is commonly open to the public?  Does it mean something even broader than that?  Or something more narrow?  What I'm getting at is what is the "line" in application.

[Barnes]

Neither party has even pretended to answer these questions, which are the only ones I care about.

As some preliminary questions from the CJ, even though this isn't in the cert, I'm going to ask:

1) How does the 22nd amendment impact this case?
2) What does the statute mean when it says that the places covered by "buildings and establishments open to the public?"  Does this mean every federal/regional/private place that is commonly open to the public?  Does it mean something even broader than that?  Or something more narrow?  What I'm getting at is what is the "line" in application.

I apologize, you Honor.

1. The 22nd Amendment clearly states:

You must be logged in to read this quote.

So, for example, what if a public official worked in a park? Smoking in a park would be detrimental to their health, and could lead to them having to either quit their job, or die.
2. I believe that this applies to all buildings, parks, libraries, schools, etc. operated by the Federal government and/or a Regional government.

[SPC]

Neither party has even pretended to answer these questions, which are the only ones I care about.

As some preliminary questions from the CJ, even though this isn't in the cert, I'm going to ask:

1) How does the 22nd amendment impact this case?
2) What does the statute mean when it says that the places covered by "buildings and establishments open to the public?"  Does this mean every federal/regional/private place that is commonly open to the public?  Does it mean something even broader than that?  Or something more narrow?  What I'm getting at is what is the "line" in application.

OH RLY?

Statement of Facts
The Protection of Public Health Act was enacted on September 27, 2009, after the Senate overrid President Lief's veto. Here is the text of the act:

You must be logged in to read this quote.

Questions Presented
Is it constitutional for the Senate to pass laws protecting public health by prohibiting voluntary actions? Is it constitutional for the Senate to apply different standards to different businesses?

Argument
There are only three places in the Constitution where public health is mentioned. Article I, Section 5, Clause 13 gives the Senate the power "To promote the Public Health, by the conducting of researches, investigations, experiments, and demonstrations relating to the cause, diagnosis, and treatment of medical disorders and by assisting and fostering such research activities by public and private agencies." Clearly there is nothing in the Protection of Public Health act pertaining to research. Article I, Section 5, Clause 14 gives the Senate the power “To protect the Public Health and commerce, by providing for the quarantine, vaccination, and treatment of individuals, animals and plants as needed to prevent the spread of contagious diseases.” The Protection of Public Health Act does not specify anything regarding quarantine, vaccination, and treatment of smokers or tobacco. Finally, the 22nd Amendment to the Constitution states, “The Senate shall have power, save where limited by other provisions of this Constitution:

1.   To protect the Public Health and commerce by making such regulations as shall be necessary for the protection of those in employment. 2. To protect the Public Health, commerce and heritage by making such regulations as shall be necessary for the protection and preservation of natural beauty, biological diversity and other natural resources.”

The Protection of Public Health Act says nothing about protecting those in employment or natural resources, as it bans smoking in any establishment open to the public. Thus, there cannot be found any constitutional justification for prohibiting smoking for public health reasons. Thus, under Article IV, Section 3, Clause 2, which states, “The powers not delegated to the Republic of Atlasia by the Constitution, nor prohibited by it to the Regions, are reserved to the Regions respectively, or to the people,” the power to to prohibit smoking to reserved to the regions or the people, and under Article VI, Section 1, Clause 15, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” the right of the people to smoke in public areas cannot be denied.

However, even if one were to ignore all of that, Article I, Section 5, Clause 4 gives the Senate the power “To provide an area of Freedom, Security and Justice without internal frontiers, and a single market where competition is free and undistorted.” How can it be said that the Senate is providing a single market with free competition when it prohibits anyone in an establishment with fewer that 40% of its annual gross revenue coming from the sale of alcohol, tobacco, and paraphernalia from smoking? Additionally, Article VI, Section 1, Clause 2 states, “No agency of government shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Again, how can there be equal protection under the law when the law may be unequally applied depending on the revenue of the establishment in which you are smoking? For that matter, how can there be equal protection under the law when the law may be unequally applied depending on whether the building you are in is open to the public?

Conclusion
The Senate is not empowered to prohibit smoking anywhere in the Constitution. Even if it were, the Senate would not be empowered to unequally apply this prohibition toward different establishments.

[SPC]

Argument for the Defense:

The Constitution of Atlasia states:

You must be logged in to read this quote.

Smoking is a danger to the public health. The damage inflicted to a non-smoker who is in the vicinity of a smoker is greater than the actual damage afflicted to the smoker, and it stands to reason that this would be a danger to the Public Health.

Furthermore, this bill only outlaws smoking in public areas and not areas that are privately owned. These areas include parks, libraries, schools, etc. The Government has responsibility over these locations, and it has a responsibility to preserve the public health.

Please excuse me for asking, but if you read the clause, it only gives the Senate the power to protect the public health by conducting researches, investigations, experiments, and demonstrations and by providing for the quarantine, vaccination, and treatment of individuals, animals, and plants. Where is banning smoking on that list?

[SPC]

Neither party has even pretended to answer these questions, which are the only ones I care about.

As some preliminary questions from the CJ, even though this isn't in the cert, I'm going to ask:

1) How does the 22nd amendment impact this case?
2) What does the statute mean when it says that the places covered by "buildings and establishments open to the public?"  Does this mean every federal/regional/private place that is commonly open to the public?  Does it mean something even broader than that?  Or something more narrow?  What I'm getting at is what is the "line" in application.

I apologize, you Honor.

1. The 22nd Amendment clearly states:

You must be logged in to read this quote.

So, for example, what if a public official worked in a park? Smoking in a park would be detrimental to their health, and could lead to them having to either quit their job, or die.
2. I believe that this applies to all buildings, parks, libraries, schools, etc. operated by the Federal government and/or a Regional government.

The Protection of Public Health Act states explicitely in it that it would apply toward restaurants and cinemas. I wasn't aware that the Federal/Regional governments were in the entertainment industry.

[Marokai Backbeat]

Argument for the Defense:

The Constitution of Atlasia states:

You must be logged in to read this quote.

Smoking is a danger to the public health. The damage inflicted to a non-smoker who is in the vicinity of a smoker is greater than the actual damage afflicted to the smoker, and it stands to reason that this would be a danger to the Public Health.

Furthermore, this bill only outlaws smoking in public areas and not areas that are privately owned. These areas include parks, libraries, schools, etc. The Government has responsibility over these locations, and it has a responsibility to preserve the public health.

Please excuse me for asking, but if you read the clause, it only gives the Senate the power to protect the public health by conducting researches, investigations, experiments, and demonstrations and by providing for the quarantine, vaccination, and treatment of individuals, animals, and plants. Where is banning smoking on that list?

"Demonstrations" can mean a number of things, in my view, can it not? One of the definitions for "demonstration" can be, essentially a "show of force" which clearly is what a ban (with the intent to protect the public health) does, no?

[Sam Spade]

We are presently working on an opinion in this matter folks.  Give us a few more days, at least.

[Marokai Backbeat]

I suspect something will be posted very soon. Just letting everyone know we haven't forgotten.

[Marokai Backbeat]

(Associate Justice Marokai Blue delivered the majority opinion which Justice Opebo joined.)

Opinion

At issue here in this case is the constitutional basis, or lack thereof, of the Protection of Public Health Act.

More specifically, two points about the aforementioned act. First, being the Senate's ability to ban smoking, and secondly, the Senate's ability to apply a different standard to some businesses with regard to smoking than others.

SPC argues that the Senate lacks the expressed authority to prohibit smoking, claiming that under Article 1, Section 5, Clause 13 & Clause 14, as well as the 22nd Amendment, the Senate nowhere has the authority to restrict smoking.

However, as will be explained, the Court disagrees, for a variety of reasons.

Un: "Demonstrations."

SPC opens his argument by stating that within Article 1, Section 5, Clause 13 & Clause 14, as well as the 22nd Amendment to the Constitution, "there cannot be found any constitutional justification for prohibiting smoking for public health reasons."

He further specifies by stating "Clearly there is nothing in the Protection of Public Health act pertaining to research" and "The Protection of Public Health Act does not specify anything regarding quarantine, vaccination, and treatment of smokers or tobacco."

What SPC does not seem to recognize here, is the word "demonstrations" included in Article 1, Section 5, Clause 13:

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What is the meaning of "demonstrations" in this context? It clearly does not mean scientific experiments, as "experiments" is already included in the aforementioned clause. It clearly doesn't refer to the showing of research, as "research" is already included in the aforementioned clause. It clearly can't mean the disclosure of investigations, as "investigations" is already included in the aforementioned clause.

The word "demonstration" can mean many things, but chief among such definitions includes a showing of force or the undertaking of an action generally. While "force" isn't to suggest military action or anything of the sort, we believe this definition is consistent with what a smoking ban is itself.

"Demonstrations" can thus only mean, in this context, the taking of action that "promotes the public health." This is not to say that the Senate can do anything it likes in the name of "promoting health" however, as such actions must pass mustard with the scientific community and therefore must have a legitimate purpose.

We believe, however, that smoking and second-hand smoke qualify as legitimate concerns for the Senate to engage in demonstrations, authority we believe is granted by Article 1, Section 5, Clause 13, to prohibit, and this includes the Protection of Public Health Act.

Deux: "Protection of those in employment."

SPC goes on to state: "The Protection of Public Health Act says nothing about protecting those in employment or natural resources, as it bans smoking in any establishment open to the public. Thus, there cannot be found any constitutional justification for prohibiting smoking for public health reasons."

We, however, don't see how any other interpretation of the 22nd Amendment can be made. The 22nd Amendment states, in part:

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Would that not include people in these establishments, the restaurants, the cinemas, the libraries? Would the prohibiting of smoking, a potentially dangerous activity not only to one's self but others around that person, protect the health of "those in employment"? We can't imagine any other interpretation other than that. Prohibiting smoking in places such as restaurants or cinemas quite clearly protects those in employment and thus, under the 22nd Amendment, we view the prohibiting of smoking to be a "necessary regulation."

Trois: The specificity of "open to the public."

SPC also states that individuals have a "right" to smoke in public areas, saying "the right of the people to smoke in public areas cannot be denied."

It deserves stating for the record, as alluded to in a section above, that the smoking ban affects only establishments open to the public, and not private establishments not open to the public, or private property such as individual homes. In fact, the Act specifically uses the word "public" four times.

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Atlasian law prohibits a number of harmful activities that one individual could inflict upon another. It is a simple scientific fact that smoking is harmful, not only to one's own body, but to everyone around that person, and can inflict serious harm on another individuals body in as short a time as just thirty minutes. We note this because we strongly hold that the Atlasian Constitution does not grant the right to harm others.

We do not view the prohibition of smoking as it affects other individuals any different than the government's existing power to prohibit theft or physical abuse, etc, and so we hold that there is no "right" to smoke in public.

Quatre: Consent and non-consent.

SPC states on the issue of Clause 4 of the Protection of Public Health Act, that "...how can there be equal protection under the law when the law may be unequally applied depending on the revenue of the establishment in which you are smoking? For that matter, how can there be equal protection under the law when the law may be unequally applied depending on whether the building you are in is open to the public?

We can only assume the reason this being written into the bill in the first place was to exempt (or indirectly, create) establishments that were built or run specifically for these types of activities, smoking included. Thus we believe, given the passage of this act, that a different kind of establishment has been created, necessitating different standards to accommodate individual consent.

If someone goes to an establishment where such a heavy amount of the revenue is built on smoking, they clearly have the intent to go there, and they clearly consent to the harm that it does their body, as opposed to something like going to a cinema, where one person working there or their family attending are not consenting, implicitly, to getting their lungs filled with smoke.

There is a line, the court believes, where some people are consenting (implicitly or directly) to this, second hand smoke that is, and where some people are definitely not intending on breathing harmful substances like cigarette smoke. That line of consent is important, and is why we believe the Senate has the authority to treat these two types of establishments differently, as they are now, inherently, different, deserving of different standards.

Cinq: Conclusion Summary

Section Un: The Court dismisses the claim made by SPC that the Senate lacks the authority under Article 1, Section 5, Clause 13 of the Constitution to prohibit smoking, believing instead that the word "demonstrations" in Clause 13 includes a smoking ban.

Section Deux: The Court disagrees with the claim made by SPC that the Senate lacks the authority under the 22nd Amendment to the Constitution to ban smoking "to protect those in employment."

Section Trois: The Court disagrees with the claim again made by SPC that individuals have a "right" to smoke in public, believing that preventing the harmful effects of second-hand smoke is no different than the government preventing physical abuse.

Section Quatre: The Court disagrees with the claim from SPC that the Senate is violating Article 1, Section 5, Clause 4 by treating establishments with different regulations and standards, believing that, with the passage of the Protection of Public Health Act, there have been two inherently different business establishments erected regarding smoking, thus necessitating different standards. The Court also emphasizes the difference between consent to and the lack of consent to breathing in second-hand smoke.

Therefore, for the reasons outlined, the Court has ruled that the Protection of Public Health Act shall stand as constitutional.

[Sam Spade]

From the desk of C.J. Sam Spade:

I will be concurring in the judgment of the Court and probably joining in Parts II-IV of the opinion (haven't decided for certain yet).

That concurrence should be published sometime this weekend (when I have the time) and might include completely separate reasoning on the clauses in question, but will definitely contain a dissenting view on Part I.

Thanks.

[Barnes]

I thank the Court for their decision.