Litigation-Based Federalism

The tobacco and gun lawsuits stand the traditional checks-and-balances system on its ear and marginalize Congress.
February 2000
Donald F. Kettl
By Donald F. Kettl  |  Columnist
Former dean of the School of Public Policy at the University of Maryland, and a nonresident senior fellow at the Volcker Alliance and the Brookings Institution

What do Michael Moore and Seth Trickey have in common?

Together, they're responsible for sparking the biggest change in intergovernmental policy making in the past decade.

Michael Moore is the Mississippi attorney general who devised the plan to sue tobacco manufacturers to recover the costs cigarettes imposed on state Medicaid budgets. His lawsuit against the tobacco companies broke their winning streak in the courts and led to the $206 billion settlement in 1998 between the tobacco companies and 46 states--all without the help of federal policy makers. Congress had, in fact, debated an even larger $368 billion plan early in 1998, but that effort collapsed amid the counter-punching of industry lobbyists and smoking opponents.

Seth Trickey, on the other hand, is the 13-year-old from Fort Gibson, Oklahoma, who used a 9-mm pistol to wound four of his schoolmates last December. Within days, U.S. Department of Housing and Urban Development Secretary Andrew M. Cuomo, who wanted to do something in response to the shooting rampage, reached for a federal angle on local violence and used the shooting to threaten a tobacco-style class- action lawsuit on behalf of the 3 million residents of the nation's public housing projects.

Cuomo cited the huge cost of security in public housing projects-- more than $1 billion a year--and the terror of gun violence. He said his goal was to force firearm manufacturers to both make their guns safer and reduce their use by criminals. If he could not negotiate, he promised, he would litigate.

The tobacco settlement and the gun lawsuit threat are the leading edge of new intergovernmental tactics that follow on the heels of the U.S. Supreme Court's growing reassertion of states' rights. More subnational governments have cleverly followed the path into the courts to advance their policy aims.

Some two dozen local governments have already filed tobacco-style suits against the gun industry. But, by latching onto public housing-- where the federal government provides subsidies, although local officials actually run the program--the Clinton White House hopes to grab the political initiative before local governments do.

The strategic key in the lawsuits lay in deftly redefining the issue. In the tobacco case, Moore skipped past the tort liability approach. Rather than assert manufacturers' negligence in producing a product smokers were free not to buy, Moore coupled the well-established health risks of smoking with the state's demonstrable expenses for treating low-income Medicaid recipients. Tobacco imposed costs that the states had to pay.

In the gun-violence case, local officials likewise have reshaped the issue. For years, they have worked to redefine the gun question from one of Second Amendment guarantees to one of public health. Guns, they contended, had proven just as serious a scourge to the health of their communities--especially inner-city communities--as lead paint, the lack of childhood immunizations and cigarettes. Making the suit a battle over health instead of basic rights, they hope, will produce the same success as the states' tobacco victory.

This adroit redefinition not only yields a tactical advantage in the courts but also provides a way to circumvent a Congress gridlocked on issues about which the public deeply cares. While the states outflanked the feds on tobacco, Cuomo seems determined that the same won't happen on the gun-violence issue.

The new court-based strategy raises tough questions. We're used to making policy after substantial legislative debate. Litigation-based federalism short-circuits that debate. It puts initiative in the hands of those clever enough to frame the problem right--and rich or persistent enough to wage the legal campaign.

It's policy making by government muscle. White House officials have made clear that they hope to make the prospect of protracted, expensive litigation so frightening to gun makers that they will have no choice but to negotiate a plan for safer, less easily available guns. Special-interest muscle, of course, is nothing new. This approach, however, applies it in a way that raises new questions about how accountability works and what role public institutions--as well as federalism--should play.

This strategy also leads to policy making without clear boundaries. Gun makers have raised the specter of new lawsuits against the manufacturers of baseball bats and kitchen knives. Although their argument sounds bizarre, they have a point: In federalism-based litigation, there's no natural place to draw the line. The issues will be settled by those who seize the political agenda and marshal the best legal argument.

Together, the tobacco and gun suits have cracked open the door to a new, court-centered way of framing intergovernmental policy. This approach stands the traditional system of checks-and-balances on its ear and marginalizes Congress in the larger debate. It surely won't fit every policy problem. But the huge tobacco settlement has ensured that simply brandishing this new weapon will get the attention of even the largest corporations.