What the Supreme Court heard on Dec. 1 was a case about tobacco and the Food and Drug Administration. What the Court decides could affect the relationship between industries and government agencies with absolutely no interest in the sale of cigarettes.

The immediate issue in FDA v. Brown Williamson Tobacco Corp., No. 98-1152, is whether the FDA has statutory authority to regulate the sale and distribution of cigarettes and smokeless tobacco to minors and to limit the advertising of tobacco products. But answering that question may require the Court to address an issue of broad significance to the entire “fourth branch”: Should agencies be more or less free to act like common law courts and adapt their policies to changing circumstances and values? Less, I’d say.

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