Constitutional Law

‘Long-Shot’ Cert Petition Alleges Tobacco Settlement Violated Compact Clause

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A “long-shot” petition for certiorari references a little-known clause in the Constitution in an attack on the $200 billion multistate tobacco settlement.

The cert petition by the Competitive Enterprise Institute argues the 1998 settlement between 46 states and the tobacco industry violates the compact clause, according to the Wall Street Journal Law Blog and the Forbes Daniel Fisher blog. The clause bars the states from making “any agreement or compact with another state, or with a foreign power” without congressional approval.

Forbes labels the cert petition a “long-shot” while the Law Blog says it’s worth watching. “Sound quixotic? Desperate? Downright deranged?” the Law Blog asks. “Perhaps. But consider this: A trio of powerhouse lawyers and scholars, University of Chicago law professor Richard Epstein, Public Citizen attorney Alan Morrison and Stanford law professor Kathleen Sullivan” have filed an amicus brief supporting cert.

“To allow states and private companies to enter an agreement of this type and with this massive impact, without approval of Congress, threatens to create an imbalance in our federal system,” the brief argues.

The CEI suit was filed against the state of Louisiana on behalf of S&M Brands, a cigarette company that claims the state law enacting the settlement put it at a competitive disadvantage. The suit also claims the settlement created an illegal cartel and violated federal antitrust laws.

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