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Public Health Advocacy Institute

at Northeastern University School of Law

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tobacco@tobaccopolicycenter.org

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Smoke-Free Public Housing

NYC C.L.A.S.H., Inc. et al. v. Sec’y of U.S. Dep’t of Hous. & Urban Dev. & U.S. Dep’t of Hous. & Urban Dev., 1:18-cv-1711 (D.D.C. July 23, 2018)

On July 23, 2018, N.Y.C. Citizens Lobbying Against Smoker Harassment (“CLASH”) and six public housing residents sued the U.S. Department of Housing and Urban Development (“HUD”). Plaintiffs challenged the federal agency’s rule requiring public housing agencies (“PHAs”) to implement a policy restricting on-premises tobacco use by July 30, 2018. Specifically, PHA policies must prohibit use of combusted tobacco products (including waterpipes/hookah) in and within at least 25 feet of all public housing living units and common areas and PHA administrative office buildings. Additionally, the rule allows a PHA to include e-cigarettes in its tobacco use policies. In March 2020, the trial court upheld the HUD rule, delivering important health protections for residents and employees of public housing.

Fourth Amendment Claims

Plaintiffs argued that the HUD rule authorizes PHA staff to enter a resident’s unit to investigate a potential policy violation and therefore violates the U.S. Constitution’s Fourth Amendment protections against unreasonable government search and seizure. In addition, CLASH and plaintiff residents contended that the HUD rule violates the “unconstitutional conditions doctrine,” whereby the government may not require a person to give up a constitutional right in exchange for a discretionary benefit. The filing parties claimed they were forced to relinquish their Fourth Amendment protections from unreasonable search and seizure in exchange for the discretionary government benefit of living in public housing.

Fifth Amendment & Fourteenth Amendment Claims

The Fifth and Fourteenth Amendments of the U.S. Constitution restrain government from depriving any person of their rights without “due process of law” (proper legal proceedings). Plaintiffs alleged that the Fifth and Fourteenth Amendments protect an individual’s right to engage in lawful activities in their home, and the HUD rule violates this right by authorizing PHAs to prohibit residents from use of legal tobacco products within their individual PHA units.

Tenth Amendment Claims

The Constitution delegates certain powers to the federal government. The Tenth Amendment makes explicit that powers that are not so delegated and not otherwise prohibited by the Constitution are reserved for the 50 states and the people. In order to maintain states’ autonomy within these reserved areas, the Tenth Amendment prohibits the federal government from commandeering states to administer or enforce a federal regulatory program falling within the states’ powers. Plaintiffs alleged that the HUD rule violates the Tenth Amendment by requiring state PHAs to implement and enforce a federal policy—namely, the HUD-mandated prohibition of tobacco use in state-run PHA housing and administrative buildings.

Commerce Clause Claims

The Commerce Clause of the U.S. Constitution limits federal government regulatory authority to activities affecting interstate commerce, i.e., transactions between states. Plaintiffs argued that the regulatory authority over public health is beyond the federal government’s scope to regulate interstate matters, and reserved to the states as a purely intrastate matter. In this case, Plaintiffs claimed that HUD’s rule prohibiting tobacco use within a state PHA has no discernable relationship to interstate commerce, thus, regulatory authority over PHAs falls to the states.

Administrative Procedure Act (“APA”) Claims

The APA prohibits federal agencies from adopting rules that exceed their statutory authority, or rulemaking in an “arbitrary and capricious” manner, such as basing decisions on irrelevant factors. Plaintiffs claimed that public health and safety regulations fall within the exclusive domain of the states, thus, HUD’s rule prohibiting tobacco use at PHAs for the benefit of public welfare, exceeds the federal agency’s statutory authority in violation of the APA. Plaintiffs further claimed that HUD based its rule on irrelevant criteria, including unsupported scientific principles (e.g., smoking in one unit could affect the health of the resident in the adjacent unit). Thus, Plaintiffs allege, the rule is arbitrary and capricious in violation of the APA.  

Relief Sought

Plaintiffs request that the court vacate the HUD rule, or in the alternative, modify the rule so as to remove the prohibition on the use of tobacco products in individual PHA units.

Court Ruling

In a March 2020 decision, the Court upheld the HUD rule and denied the Plaintiffs’ motion for summary judgement. The opinion concludes that HUD was unambiguous in its rule and clearly laid out the consequences of noncompliance, and thus did not violate the APA’s arbitrary and capricious requirement. The court determined that although Plaintiffs did demonstrate standing to sue (they were indeed harmed by the final rule), the rule did not violate their Fourth Amendment rights because smoking is not a fundamental right. Further, the court found that creating safe housing conditions is a legitimate government interest and that the smoke-free rule was sufficiently related to the purpose of public housing funding consistent with the spending clause and preservation of states’ powers within Tenth Amendment. This decision affirms that tobacco smoking is not a fundamental right and tailored interventions to improve the safety of housing conditions and benefit the health of residents are legally defensible and do not infringe on the constitutional rights of tenants.

Last Updated April 15, 2020

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