Smoking Bans

Constitutional Challenge to State-Backed Tobacco Cartel Rejected

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Today a federal appeals court rejected (PDF) the Competitive Enterprise Institute's challenge to the 1998 Master Settlement Agreement, which resolved state litigation against the major tobacco companies. Among other things, CEI argued that the MSA violated the Compact Clause, which says "no State shall, without the consent of Congress…enter into any Agreement or Compact with another State." Agreeing with a federal judge, the U.S. Court of Appeals for the 5th Circuit said the MSA did not require congressional approval (as envisioned in an earlier version of the deal) because it did not affect the balance of power between the federal government and the states. The court also rejected arguments based on the First Amendment, the Commerce Clause, the Due Process Clause, antitrust law, and the Federal Cigarette Labeling and Advertising Act.

CEI says it will appeal to the Supreme Court. "The court missed an opportunity to restore an important check on state government power set forth by the Founding Fathers," says CEI General Counsel Hans Bader. "The MSA was an unconstitutional backroom deal that transferred money and power from citizens and legislators to state attorneys general. It's time to end this unlawful cartel."

I discussed CEI's suit in 2005.

NEXT: Invasion of the Invasive Species!

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  1. Threadjack!!

    Congress About To Pass ‘The ______Act of____’ (These Are The People We Elect?)
    It appears that our friendly Senators were in such a rush to get this bill through that they forgot to name it. Jim Harper noticed this when the bill showed up as the oddly named The XXXXXXAct ofXXXX on his always excellent WashingtonWatch site. Apparently, the Library of Congress’ Thomas reporting system converted the underscores into X’s. And, yes, even The Congressional Record (pdf) notes that “This Act may be cited as the “_______Act of______”.

    1. Let’s pass it so we can find out what’s in it.

  2. AKA, The “We Are Really That Lazy Act of 2010”

  3. the MSA did not require congressional approval (as envisioned in an earlier version of the deal) because it did not affect the balance of power between the federal government and the states.

    I’ve got to get a copy of the Constitution these courts use, because my copy doesn’t say:

    no State shall, without the consent of Congress…enter into any Agreement or Compact with another State., unless it does not affect the balance of power between the federal government and the states.

    1. Thank you, RC Dean. I’m not constitutional scholar, but I was chin-scratching about that one too. I was guessing that there was some precedent that implied that litmus test– ie, someoe divined from historical documents that that was the intended meaning of the clause.

      1. Or… intended purpose of the clause.

  4. Are there any state constitutions which explicitly grant such states the power to enter into multi-state settlement agreements under the terms of which companies must fund advertisements critical of the products produced by such companies?

    If there is so such language in a state’s constitution, that is the end of the inquiry.

    1. It’s not that easy. States have much broader powers within their jurisdictions than the federal government does. That’s just in theory, of course, because in practice, the feds do whatever the hell they want to do.

      1. Federalism is all about maximizing individual liberty, is it not?

        1. No, it’s about mitigating the potential for unescapable tyranny.

        2. Buh?

  5. I just want to make an advertisement in here,you can find whatever watch you want on my name

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