Policy Documents

The State Tobacco Litigation and the Separation of Powers in State Governments: Repairing the Damage

November 10, 2011

During the mid-1990s, 42 states filed suit against the tobacco industry seeking to recoup state government expenditures on Medicaid and other health programs that could be statistically linked to smoking-related industries. The premise was - in the words of Mississippi Attorney General Mike Moore - "if you cause the health crisis, you pay for it." Such legal theories were unprecedented at that time in American law, but nonetheless the tobacco companies settled the lawsuits by agreeing to abide by a new set of regulatory constraints and to make multi-billion dollar payments annually to the states in perpetuity.

In addition the settlement being the largest transfer of wealth in the history of the human race, it also created a new legal precedent by tempting other governments to seek lucrative settlements by pursuing litigation against various other industries, thereby seeking tax and regulatory outcomes through litigation, rather than through the constitutionally appropriate method of legislation. Such a precedent would distort and destabilize numerous areas of law, but particularly the separation of executive and legislative powers within state governments. Debow argues in favor of two state statutory provisions that would deny any state attorney general from using litigation to recoup any state health care expenditures, thereby preserving a sensible separation of powers among the three branches of state government.