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Capitol Comment

    Capitol Comment 233 - Federal Mass Tort Litigation: An Insidious Abuse of Power

    06/03/1999

    "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."

    - Thomas Paine

    The Clinton-Gore administration has announced plans to bring a lawsuit against the tobacco industry. Such a lawsuit would not only set a precedent that threatens our freedom and our property, but would also challenge the separation of powers upon which our constitutional form of government depends. Legislators who have sworn to support and defend our constitutional liberties should take this move very seriously, even if only to guard against diminishing their own constitutionally prescribed powers.

    The administration’s proposed massive lawsuit is an unconstitutional substitute for a failed tax. Our Founding Fathers made plain their intention that Congress, not the executive or the judiciary, be the branch of government with the power to raise and spend money, and they insisted that any bill introduced to raise revenue must originate among the members of the House of Representatives—the branch of government most accountable to the people.1 Last year, the Congress rejected a 55 cents per pack tax increase on cigarettes. In response, President Clinton declared in his State of the Union address, "So tonight I announce that the Justice Department is preparing a litigation plan to take the tobacco companies to court, and with the funds we recover, to strengthen Medicare."2

    Stacking the deck in court by changing the laws. Because even the administration has questioned whether it can bring a suit against the tobacco industry, some policymakers have warmed recently to the idea of passing laws that "clarify" existing statutes in ways that strengthen the government’s ability to sue parties and raise revenue. For example, some members of Congress want to amend the Medical Care Recovery Act and/or the Medicare Secondary Payer Act to "clarify" the government’s ability to sue an alleged wrongdoer for the recovery of Medicare expenditures -- an issue on which the federal courts have never ruled.

    Moreover, changing the law in the midst of the government’s already announced plans to sue the tobacco industry would give the government a new cause of action against the industry for acts occurring well before this new legislation could take effect. Not only would this be unfair; it would violate the constitutional right to substantive due process.

    The states took a similar tack in their tobacco lawsuits, and their claim that only tobacco would be targeted served to anesthetize the political community to both the bad policy implications of such laws and the insidious abuse of power they represent. However, at least one state court already has rejected as unconstitutional a state law passed to facilitate a tobacco suit.3

    Another shocking aspect of the laws being suggested is that they could strip the defendants of their traditional defenses in court. Normally, the defendant can ask the jury to take into account the degree to which an injured party is responsible for inflicting damages on himself. Also, plaintiffs must provide proof of causation, demonstrating what specific injury was caused by what specific action. The legislation being discussed could strip defendants in third party Medicare claims of these fundamental defenses and allow statistical correlation to be substituted for proof of causation.

    Typically, tort law would have the government "standing in the shoes of" an individual smoker or class of smokers and suing a specific tobacco company for specific, provable harms. By contrast, the administration claims it would not need to name individual injuries or even individual claimants on whose behalf they are acting. The government would file a suit against all tobacco companies on behalf of the government itself, not on behalf of any injured parties or even taxpayers. Couple this theory with a change in the law that allows the government only to show a statistical correlation between an activity (smoking) and an expense (Medicare) instead of an actual harm, and it is readily apparent how the administration’s proposed legislation gives the government an unfair advantage in court.

    Providing such a cause of action could open the floodgates to an avalanche of other lawsuits. Some may sit back and say tobacco is a politically unpopular industry or it deserves to be punished. But legislation permitting a direct cause of action against the tobacco companies would be equally applicable to other products and services. Should we the people allow our liberties to be undermined merely because we are willing to see tobacco take a hit? Think about the precedent we set when those who make the rules -- the government -- are the same people who stand to gain financially by suing us?

    Passing laws that retroactively expose any party to a mass federal tort lawsuit is bad policy. When the government begins to tilt the playing field to give itself an advantage in court, we should vigilantly object and defend our freedoms. Whatever revenue can be raised from mass federal tort litigation pales before the loss of personal liberty American citizens would lose in the bargain. Members of Congress should unite in opposition to schemes that offer short-term political gain at the cost of the Constitution they have sworn to support and defend.

    1Article I, Section 7 of the Constitution states that "All bills for raising revenue shall originate in the House of Representatives..." Article I, Section 9 states that "No money shall be drawn from the treasury, but in consequence of appropriations made by law..."

    2President Clinton’s State of the Union address, January 19, 1999.

    3See Agency for Health Care Administration v. Associated Industries of Florida, 678 so. 2d 1239(1996).