The United States upholds its prohibition on smoking in public housing

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The D.C. Circuit Court of Appeals ruled that a 2016 rule requiring state and local public housing agencies to prohibit smoking inside housing units and indoor common areas, as well as outside within 25 feet of those spaces, was properly enacted by the Department of Housing and Urban Development (HUD).

The Smoke Free Rule was challenged by six tenants as well as the New York City Citizens Lobbying Against Smoker Harassment (“NYC Clash”).

They claimed that by banning them from engaging in a permissible activity—using tobacco—inside the home, it inappropriately invaded their privacy and violated due process.

However, Chief Judge Sri Srinivasan of the two-judge panel said HUD supplied “substantial” evidence showing the regulation helped tenants avoid the health dangers of secondhand smoke, prevent fires, and lower the cost of property upkeep.

The court stated in his ruling that “the department fully established its justifications for the regulation and did not behave arbitrarily and capriciously in promulgating it.”

A charge that the restriction unduly limited how the government spends money and contravened a clause of the U.S. Constitution limiting federal spending was also rejected by Srinivasan.

Plaintiffs’ attorney Larry Joseph stated that his clients want to appeal. According to him, the case raises important questions about federalism and whether Congress truly gave HUD the authority to prohibit smoking.

The judgement, according to Audrey Silk, the creator of NYC Clash, “opens the door to allowing the government criminalise other permissible conduct in the house on the flimsiest of grounds.”

Requests for comment from HUD did not immediately receive a response.

Circuit Judge Douglas Ginsburg concurred with Srinivasan’s order, which affirmed a lower court decision from March 2020.

While she was still on the appeals court in September 2021, U.S. Supreme Court Justice Ketanji Brown Jackson attended the oral arguments in the case but did not take part in the judgement.

NYC CLASH Inc et al. v. Fudge, D.C. Circuit Court of Appeals, No. 20-5126, is the case at hand.

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