Thursday, April 28, 2005
"House lawmakers have drafted legislation to set uniform testing standards for major U.S. sports as a way of containing the use of steroids and other performance-enhancing substances."
Because the legislation referred to has not been introduced into the House we do not know specifically what might be proposed for Congress to do regarding steroids in sports. Yet, I wonder, on what theory of government can we rely on to decide that any Congressional action is justified?
Economics would ask if there is a market failure to correct regarding steroid use in sports. Is there a reason to believe that steroid use by athletes in professional sports leads to an inefficient allocation of resources to professional sports industries? Typically the sort of regulation likely to be proposed here would fit the idea of an external cost, or a harm to people other than the players, the team owners, and the fans, that would be associated with steroid use by the athletes. I don't think there is such a harm. I think economic analysis cannot be used to justify Congressional action to regulate steroids in professional sports.
I also think that the role of government in protecting individual liberty means that Congress should not regulate steroid use. One asserted source of harm from steriod use by athletes is probably that fans may be turned off by knowing the athletes are so good because they use performance drugs. Even if true, this does not justify Congressional regulatory action because each league can decide for itself what best suits its ability to supply fans the entertainment services they enjoy. The conditions of competition within professional sports should be set by each sport alone.
Another asserted source of harm from steroid use is bound to be that steroids harm the health of the athlete that uses them. A theory of government that would say Congress should regulate/prohibit steroid use by athletes would be paternalistic. Such a theory would have us see government in a parental role. Clearly such a theory of government is inconsistent with individual liberty, and it is a theory of government that I reject.
I'm sure some will argue that professional athletes are role models for kids, and therefore, if kids know professional athletes use steroids then they will want to use steroids. Kids are simply too young to decide for themselves, and therefore, government is needed to stop adult athletes from inadvertently causing kids to use steroids. The line of cause and effect seems pretty lengthy here, and therefore, I grow suspicious that even if I accepted the theory of government behind this reason for Congress to regulate steroid use by athletes, I would have to conclude that Congress is very unlikely to pick a well targeted regulatory policy. The individual liberty of athletes would be sacrificed for an uncertain and limited quantitative impact on kids.
Further, Congress is not the parent of the kids in question. Suppose a high school football player came to his parents and said: "I'm pretty good and I think I could be good enough to get a scholarship to college and even have a good chance at the NFL, but I think that to have a chance at reaching my goals I should use steroids. What do you think? Will you help me pursue my goals in this way?" Many parents would investigate steroid use and conclude that their son should not be allowed to use the drug and they would just say no to steroid use. But, if the parents said yes, on what theory of government should we think it is legitimate for Congress to tell the parents they cannot make this decision for their son? I think government should let each parent decide what is acceptable for their kids.
One more thought occurs to me. Our Constitution expressly grants Congress certain powers in Article 1, Section 8. The theory of government embodied in our Constitution says that Congress may only act within these expressed powers. If Congress seeks to act without an express grant of power in the Constitution, then the resulting legislation would be unconstitutional. I don't think there is a expressed power in the Constitution that gives Congress the power to regulate steroid use by professional athletes. In other words, even if you find a theory of government, perhaps it is paternalism, that would justify Congress regulating steroid use, I don't think our Constitution grants Congress the po