Government Lawsuits: Usurpation of Power and Subversion of Representative Govt

Great Debates
1

This is an issue that has concerned me since the feds and states started the anti-gun and anti-cigarette lawsuits. As I see it, governments have no standing to sue, as they are not entities with rights. The one exception is where a government has entered into contract with a private provider (establishing a contractual right) and that provider has failed to deliver as promised.

Some may notice my equivocal language regarding the nature of government power. That is because I am libertarian, and I believe most government power is illegitimate. What I am doing here is arguing within a system that I do not fully support. If the government is going to claim power and justify that claim based upon constitutional and democratic principles, they should at least adhere to those principles. If we can’t hold the government to only those powers justified by their own arguments (constitutional democracy), how can we ever hope to reduce the de facto power of government? Let’s at least hold them to the powers they claim to wield.

Here is my rap on the issue:

  1. Governments are institutions of Power, not individuals with rights. The powers of the gov’t are (ostensibly) granted to it by the people, expressed in law, and limited by the judiciary in interpreting the constitution (state or federal as applicable). Governmental powers that sidestep this process constitute a USURPATION of powers NOT GRANTED by the people.

  2. If any group of citizens is harmed they can seek restitution through the tort system. No government need step in and sue on behalf of citizens as they already have that right. In the absence of a contract that creates a right to some performance, Governments have no standing to sue.

  3. The combination of power and a right to sue creates a conflict of interest as well as an opportunity for corruption. The same judiciary that hears the gov’t cases is appointed and promoted by the officials
    who institute the lawsuits. In addition the threat of lawsuits or regulation could be used to promulgate regulation or lawsuits respectively. The cigarette and smith & wesson “settlements” are obvious examples.

One further comment: If the government acts to provide some sort of benefit (e.g. Medicare) and the actions of private citizens affect the cost of that benefit (e.g. selling cigarettes), that does not constitute “harm” to the general citizenry. If the act in question is legal, then it is an accepted risk in the context of our government. This is true even if the effect of the legal action upon the benefit is unanticipated. In such case even the private citizen would have no claim, and certainly the government would have none (for reasons stated).

Comments?

merckx

2

Well, the first thing to ask is: Is there any history of the U.S. government suing people or companies for other than breach-of-contract, say, prior to the Civil War? We know there’s a long history of the state and local governments bringing people up on criminal charges without having some private person press those charges (c.f. all the criminal cases that start with “The People vs.”). So is there a history of governments (Fed, state, or local) bringing people or companies up on civil charges?

3

Thank you for starting this thread, merckx. I’ve little to add to what you’ve said regarding lawsuits (although I disagree that “most government power is illegitimate” — but I won’t hijack your thread to argue the merits of libertarian thought :wink: ).

I agree that the government has no business presenting suits against private corporations, and I find it disingenuous in the extreme that the same government which has known about and communicated the dangers of cigarette smoking for decades, yet allowed their sale and distribution, now decides to sue the tobacco companies for covering up evidence of those hazards.

If the government’s position is that the tobacco companies have been willfully negligent in their marketing practices and in their pursuit of more addictive tobacco additives, then that is a valid reason for criminal prosecution of those companies. The government has a mandate to regulate dangerous products and to prosecute criminal actions; the interests of the citizenry are supposed to be represented through responsible legislation and regulation, not through the civil court system.

It’s been difficult for me to get that point across to people with whom I’ve discussed this issue. It’ll be interesting to see the responses here.

4

Xeno:

I have been pushing this subject matter on several newsgroups and bulletin boards, but few seem interested. I see govt lawsuits as a quantum leap in govt oppression and power, with virtually unlimited potential for abuse. Imagine the govt suing NORML for increasing the cost of the war on drugs. No threat to free speech there. Or McDonalds for serving unhealthy food. Or the terrible coffee industry for getting people hooked on caffeine and failing to disclose the awful truth about late night jitters and a weakened bladder.

Actually I shouldn’t joke, because it really is frightening. I don’t understand why CATO and other libertarian groups and think tanks haven’t taken up the issue.

Yes, I too am interested in getting some responses and in stirring up some interest, if not outrage.

merckx

5

I’ve been outraged for years because of this kind of abuse. What it is is a form of taxation. If the battle cry originally was no taxation without representation, what do you think the govt is doing with these lawsuits. And you are right, the lawsuits against the industries you cited are right around the bench.

6

Without commenting on the anti-gun and anti-tobacco lawsuits in particular, there may be a place for government suits in situations where the collective action problem is large. That is, if everyone pays an extra $1 for a product because of “bad” behavior by a corporation, there is going to be insufficient incentive for any given individual to file suit. There is a private parallel in the lawyer-organized class action suit, but it does seem that allowing the government to act on behalf of large groups that have been slightly damaged is not an unreasonable policy.

7

ENugent, you’d have to define the “bad” behavior of your hypothetical company. If the bad result is that consumers pay an “extra” buck for the product then, even if you can show a direct causative link, where is the lawsuit? In this case, I’d have to agree with my libertarian friends and say that if the company remains profitable it must mean consumers have been willing to pay the higher cost; market economy in action.

If, in the opinion of regulatory agencies, the company has failed to apply proper business, safety or hiring practices, then fines or other sanctions should be levied. If, in the opinion of lawmakers, prices for the product should be controlled, then they should write legislation to accomplish this.

If a consumer or group of consumers is sufficiently outraged at the actions of the company, a lawsuit is then appropriate.

Don’t get me wrong; I certainly DO want the government acting on my behalf. I want them to do it through legislation, judication and (in some cases) executive action. That’s how the government’s set up, and that’s how I’d like them to operate.

8

ENUGENT:

“There is a private parallel in the lawyer-organized class action suit, but it does seem that allowing the government to act on behalf of large groups that have been slightly damaged is not an unreasonable policy.”

That’s because your not thinking. Dont you see the danger in governments using lawsuits to intimidate businesses and advocacy groups? The “logic” behind the gun and cigarrette lawsuits (that completely legal activity by private citizens which increases the cost of government programs is a cause of action) can be applied to almost ANY private action.

Sue the auto industry for making BIG GAS GUZZLING SUVs that squash VWs like bugs (ahem) and increase the cost of the medicare system. Sue the movie studios for contributing to violence in society which increases the cost of police protection. Sue the anti-government political groups for (supposedly) contributing to the liklihood of terrorist attacks on govt buildings.

Where does this “logic” lead?

Total control by government without passing a single new law!

Don’t you see that?

merckx

9

Let me get your views straight: government civil action are always a usurpation of power? What about government criminal actions? I assume you’d view those as okay, but if so, why the difference? Would you rather the government treat tobacco companies as criminal suspects?

What is this about lack of representation? These companies are represented by their lawyers like any other wealth civil defendant. The state attorneys general who are suing them were popularly elected. If you have no faith at all in the electoral process, I wonder what you would replace it with.

I would prefer regulation to litigation myself, but I doubt a regulatory approach would silence the critics.

10
11

Originally posted by tracer

Absolutely. Civil anti-trust cases are frequently brought by the government (if there have been any criminal anti-trust cases I haven’t heard of them). The Roosevelt administration pursued a lot of “trust busting” cases in the 1903-1908 period; the Taft administration (1909-1912) brought even more.

As to the period before the Civil War, I don’t know. There has been an Attorney General of the United States the whole time though…

12

The “taxation without representation” was directed more at lgllady’s post. The laws under which these companies are sued are passed by the same legislatures which create tax law. I don’t see why one process has representation and the other doesn’t.

13

Boris B wrote:

“Absolutely. Civil anti-trust cases are frequently brought by the government (if there have been any criminal anti-trust cases I haven’t heard of them). The Roosevelt administration pursued a lot of “trust busting” cases in the 1903-1908 period; the Taft administration (1909-1912) brought even more.”

This confuses the issue for two reasons. First, antitrust actions are not really tort actions. If the actions taken by private companies actually harmed anyone, no special anti-trust law would have been necessary to support any lawsuits. Anti-trust law is ill-defined regulation that gives the government likewise ill-defined powers. It’s bullshit, in a word, and one might confuse anti-trust action with tort action precisely because it is bullshit.

Second, as poorly defined and amorphous as it is, anti trust is law. It has stood the test of representative govt. (though obviously a fallible test). Govt. lawsuits, on the other hand, are not within the law. They are a misapplication of tort law giving the govt. standing where they have none.

steve

Oh, and BTW, I am just getting acquainted with this particular software, so I am not familiar with the best method of incorporating quoted passages into my posts. For example in one post above my responses appear to be part of an original quote. What is the preferred method?

14

merckx asks:

Go here for a quickie intro to vB code.

BTW, on the taxation without representation issue, I’m not sure on what grounds you’re equating these suits with taxation. Even if we accept that punitive and compensatory damages awarded in a lawsuit brought by the government would be a form of taxation (and I don’t :wink: ), why would you say these “taxes” were levied with less representation than other taxes?

Boris B: “I would prefer regulation to litigation myself, but I doubt a regulatory approach would silence the critics.”

I agree with you, but I think silencing the critics is a poor impetus for any government action, and certainly poor justification for such creative actions as we’re seeing against the tobacco and firearms companies. I’m not a big believer in “slippery slope” arguments, but I see merckx’ point about the precedents being set by these lawsuits.

If there are clear public health and safety concerns here, then responsible governance requires proactive legislation of controls which protect the public interests and regulatory oversight of those industries. What truly disturbs me here is that the government is choosing to retroactively punish industries they believe have been allowed -through government inaction or willfull ignorance- to operate at the detriment of the public, rather than accepting and correcting those failures of representation.

15

Well, I didn’t mean a whole lot by “silencing the critics”. All I meant was, maybe there was no point in my bringing up the regulation vs. litigation thang, since opponents of the lawsuits in question would probably also oppose regulations with the same goal. I was wrong in at least once case (xenophon’s)!

16

**
Rocky and Bullwinkles nemesis Boris B wrote:**

Well, I didn’t mean a whole lot by “silencing the critics”. All I meant was, maybe there was no point in my bringing up the regulation vs. litigation thang, since opponents of the lawsuits in question would probably also oppose regulations with the same goal. I was wrong in at least once case (xenophon’s)!

10-29-2000 01:24 PM

merckx replies:

You are right that I would oppose regulation of virtually any kind, but once again that is irrelevant. For regulations to become law they must be passed upon by congress etc. so that lawmakers can be held responsible at the voting booth for their actions. Further, the constitutionality of those laws can be questioned in court.
If these lawsuits are considered legitimate by the public, a bureaucracy can engulf them and protect the legislators from political retribution (ever try to argue with the IRS? can your congressmen help you do that? does anyone blame congress and hold them accountable?), and such lawsuits can become the de facto law without ever standing up to legislative or constitutional challenge.

I am urging that constitutional challenge now, before things get further out of hand, as I am certain these lawsuits are not legitimate.

Boris B, Since you seem to be in favor of such action, why do you not argue the question of standing rather than simply your own taste for the outcome?

Consider this: If you think your neighbor is getting ripped off by some company, you cannot sue on his behalf and give him the money. And you certainly can’t sue and use the money for your pet project (no matter how worthy you might think it to be). You do not have the right to sue unless you yourself have been harmed. Yet the govt is doing exactly that. How can the govt have more rights acting on your behalf than you have in the first place? Agency does not confer additional rights.

** merckx**

PS Thanks to Xeno for the helpful hints.

17

I don’t argue about standing because I don’t always understand arguments about standing. They are fairly simple in private cases like your example below. They are much more complex in cases where the government, or a part of the government, is a party. The attorneys general are suing because some of the people who elected them are seriously ill, and some are dead, due to a fairly well-established cause. The attorneys general were not themselves harmed, just as my lawyer can bring a case without the lawyer being harmed.

You consider the attorney general to be legitimate representatives only of the government and not of the people. Is that right? The attorneys general, I, and apparently the courts all think that the attorneys general are legitimate representatives of the people. It doesn’t seem like there is any common ground here, so I haven’t bothered to argue standing. It seems obvious to me that citizens getting severe lung diseases is a harm to the public at large; the attorney general represents the public at large. We can contradict each other but it will not be an argument.

You’ve lost me again. I can’t sue and use the money for a pet project? Do you mean I can’t sue at all and use the money for a pet project, or just on someone else’s behalf? Because if it’s the former, I’m really surprised. If it’s the latter, well I take your point (pointing out that I am not the government, which is relevant to me and irrelevant to you), but then why is your last question “How can the govt have more rights acting on your behalf than you have in the first place?”
Shouldn’t it be ‘How can the government have the same rights acting on your behalf than you have in the first place?’ In answer to that, all I could do is reiterate that it seems like there is ample precedent for the government suing on other people’s behalf; really it can only sue on other people’s behalf, since it isn’t a person itself. But we’ve already been down that road on this thread and we found no common ground.

Well, I admit I’m not in touch with what arguments the attorneys for the defendants are making. Why aren’t they challenging the suits on constitutional grounds?

What political retribution could happen, if the lawsuits are considered legitimate by the public. The attorneys general run for re-election just like legislators; the legislators which passed the laws under which the companies are being sued were also elected. I don’t understand precisely where the bureaucracy comes in. The attorneys general are much closer to popular control than plaintiffs in a class action would be.

Do you believe that there should be any response at all to the tobacco companies’ manipulation of the levels of nicotine in cigarettes for the express purpose of creating addicts? No regulation by the FDA, no civil cases, no criminal cases? How about bans on cigarette vending machines near schools? Private civil actions have been brought against these companies for years; the companies had no more rights in those cases than they do against the government right now. They could have challenged the constitutionality of those cases, just as they could have challenged the constitutionality of the government’s cases. Juries could have decided (and usually did) in the companies’ favor in those cases, just as they could decide against government plaintiffs today.

18

Boris B explained:

[emily letilla]Oh. That’s very different.

Never mind.[/emily letilla]
I’m remembering now why I’ve had so much trouble conveying my misgivings about this tobacco issue to my friends (although not many of them can argue as creditably as Boris B)! I strongly believe that one of the major responsibilities of government is to act on the best information available to protect the public interest to the greatest degree possible without restricting the freedoms and liberties of its citizens. I think that in the case of tobacco-related health concerns, the government has done a poor job of this.

Over the past several decades the government has had ample knowledge of both the effects of tobacco smoking and the actions of the tobacco companies, and has also had ample opportunity to protect the public health through greater oversight and controls. It seems to me that, by deciding merely to educate and inform the public, the government (quite defensibly) chose to err in favor of liberty for the citizens. If it’s now the prevailing opinion that the relative freedom of action afforded the tobacco companies by the government resulted in a serious threat to public health, why is it more appropriate for the government (which knowingly allowed the threat) to sue its partners in crime for damages on behalf of the victims than it is for them to legislate compensation to those victims?

BB, you’ve made me re-examine my opinion regarding civil suits brought by the government in general. I’m willing to admit that there are circumstances in which this sort of action may be appropriate. However, I remain quite concerned that the litigatory approach is perhaps too attractive to chief executives as it doesn’t require the degree of political machination which pushing through legislative packages would do, and also provides much less accountability of government (merckx’ major point, I think).

19

** Boris B wrote:**

The attorneys general are suing because some of the
people who elected them are seriously ill, and some are dead, due to a fairly well-established cause. The attorneys general were not themselves harmed, just
as my lawyer can bring a case without the lawyer being harmed.

** merckx replies:**
You lawyer represents you alone as your advocate. The attorney general ostensibly represents both you and all other americans including the tobacco companies. Though that position has never been one of civil action, rather the enforcement of federal law.

** Boris B wrote:**

You consider the attorney general to be legitimate representatives only of the government and not of the people. Is that right?

** merckx replies:**

That is what I would argue as a libertarian. But in this context I am attempting to restrict my arguments to constitutionality and representative democracy. In that context the AG has the executive power to enforce federal law, not to act as a civil advocate.

** Boris B wrote:**

It seems obvious to me that citizens getting severe lung diseases is a harm to the public at large; the attorney general represents the public at large.

** merckx replies:**

How is it not simply a harm to the individual? If you argue the costs of govt programs is affected, you wind up on the very slippery slope of arguing that virtually all behavior potentially harms “the public at large”. The individual harmed has the option to sue (and many have, most losing), so why is there even a need for the feds to get involved? I suspect it is simply a power and money grab, or govt intervention to compell the outcome (tobacco losing) that the legitimate tort action could not.

** Boris B wrote:**
You’ve lost me again. I can’t sue and use the money for a pet project? Do you mean I can’t sue at all and use the money for a pet project, or just on someone else’s behalf

** merckx replies:**
Someone else behalf. I thought that clear from the context.

** Boris B wrote:**
then why is your last question “How can the govt have more rights acting on your behalf than you have in the first place?”
Shouldn’t it be ‘How can the government have the same rights acting on your behalf than you have in the first place?’ In answer to that, all I could do is reiterate
that it seems like there is ample precedent for the government suing on other people’s behalf; really it can only sue on other people’s behalf

** merckx replies:**
To clarify, I mean since YOU cant sue on your neighbors behalf (and certainly can’t do so simply to get cash for your favorite project) the govt, as your agent, can’t do it either.

** Boris B wrote:**

Well, I admit I’m not in touch with what arguments the attorneys for the defendants are making. Why aren’t they challenging the suits on constitutional grounds?

** merckx replies:**

I don’t know, but I believe the answer is probably part of the problem. I suspect some back room deals that involve threats of regulation or legislation are taking place. Subversion of representative democracy.

** Boris B wrote:**

Do you believe that there should be any response at all to the tobacco companies’ manipulation of the levels of nicotine in cigarettes for the express purpose of creating addicts

** merckx replies:**

This shouldn’t be a specific discussion of the merits of these lawsuits which mught be perfectly appropriate if brought privately. It is a question of the process which is a threat to liberty. If the companies really did as charged, why not let harmed smokers make their case on their own? If they lose, it is through a fair hearing of the facts, not through political manipulation and intimidation.

merckx

20

** Boris B wrote:**

The attorneys general are suing because some of the
people who elected them are seriously ill, and some are dead, due to a fairly well-established cause. The attorneys general were not themselves harmed, just
as my lawyer can bring a case without the lawyer being harmed.

** merckx replies:**
You lawyer represents you alone as your advocate. The attorney general ostensibly represents both you and all other americans including the tobacco companies. Though that position has never been one of civil action, rather the enforcement of federal law.

** Boris B wrote:**

You consider the attorney general to be legitimate representatives only of the government and not of the people. Is that right?

** merckx replies:**

That is what I would argue as a libertarian. But in this context I am attempting to restrict my arguments to constitutionality and representative democracy. In that context the AG has the executive power to enforce federal law, not to act as a civil advocate.

** Boris B wrote:**

It seems obvious to me that citizens getting severe lung diseases is a harm to the public at large; the attorney general represents the public at large.

** merckx replies:**

How is it not simply a harm to the individual? If you argue the costs of govt programs is affected, you wind up on the very slippery slope of arguing that virtually all behavior potentially harms “the public at large”. The individual harmed has the option to sue (and many have, most losing), so why is there even a need for the feds to get involved? I suspect it is simply a power and money grab, or govt intervention to compell the outcome (tobacco losing) that the legitimate tort action could not.

** Boris B wrote:**
You’ve lost me again. I can’t sue and use the money for a pet project? Do you mean I can’t sue at all and use the money for a pet project, or just on someone else’s behalf

** merckx replies:**
Someone else behalf. I thought that clear from the context.

** Boris B wrote:**
then why is your last question “How can the govt have more rights acting on your behalf than you have in the first place?”
Shouldn’t it be ‘How can the government have the same rights acting on your behalf than you have in the first place?’ In answer to that, all I could do is reiterate
that it seems like there is ample precedent for the government suing on other people’s behalf; really it can only sue on other people’s behalf

** merckx replies:**
To clarify, I mean since YOU cant sue on your neighbors behalf (and certainly can’t do so simply to get cash for your favorite project) the govt, as your agent, can’t do it either.

** Boris B wrote:**

Well, I admit I’m not in touch with what arguments the attorneys for the defendants are making. Why aren’t they challenging the suits on constitutional grounds?

** merckx replies:**

I don’t know, but I believe the answer is probably part of the problem. I suspect some back room deals that involve threats of regulation or legislation are taking place. Subversion of representative democracy.

** Boris B wrote:**

Do you believe that there should be any response at all to the tobacco companies’ manipulation of the levels of nicotine in cigarettes for the express purpose of creating addicts

** merckx replies:**

This shouldn’t be a specific discussion of the merits of these lawsuits which mught be perfectly appropriate if brought privately. It is a question of the process which is a threat to liberty. If the companies really did as charged, why not let harmed smokers make their case on their own? If they lose, it is through a fair hearing of the facts, not through political manipulation and intimidation.

merckx