Too Fat: Federal Powers Need a Constitutional Diet

March 31, 2004 • Commentary
By Michael I. Krauss and Robert A. Levy
Foxnews​.com on March 31, 2004.>

No more super‐​size French fries and soft drinks, McDonald’s announced earlier this month. Good riddance said the federal Centers for Disease Control and Prevention.

Corpulence, warned the CDC, could soon replace smoking as the nation’s leading cause of preventable death. But then the House of Representatives weighed in (so to speak)—voting overwhelmingly to block obesity‐​related lawsuits in federal and state courts against food manufacturers, sellers and trade associations.

Rep. Ric Keller, R‐​Fla., the bill’s main sponsor, warned that American restaurants employ 12 million people whose jobs might be put at risk by fee‐​hungry lawyers. District of Columbia delegate Eleanor Holmes Norton had a somewhat different perspective: “We’re talking about a public health problem for which our government has not taken responsibility. What is the government going to do? I hope it does more than stop the trial litigation in the states.”

Apparently, neither Keller nor Norton has thought to ask where in the Constitution—the document that enumerates Congress’ few and defined powers—the national government is authorized to tackle obesity, much less to bar private parties from filing fat‐​related grievances in state courts against food companies.

A couple of points: First, obesity is a private, not public, health problem. The term “public,” if it is to have any substantive content, cannot be used to describe all health problems that affect lots of people. Instead, “public” should refer only to those cases requiring collective action, i.e., where individual harms cannot be redressed without a general societal solution.

Excessive food consumption, for example, would be a public health problem if it were contagious. But it isn’t. Similarly, fat does not infect us as it crosses state borders. So far, cholesterol has not been mentioned as a biological weapon that might be used by our enemies. Decisions about nutrition, for us and our families, are voluntary, entirely private matters. We do not need government—much less federal government—making those decisions for us.

Second, not every national problem is necessarily a problem for Washington to “solve.” The cost of our overweight tort system is indeed a national ailment. When lawsuit‐​related costs explode, proposals for reform are never far behind—especially with Election Day on the horizon. Thus, we have been deluged by congressional schemes, like Keller’s bill to protect the food industry, that enlist the federal government in the battle against confiscatory state tort laws. But no matter how worthwhile the objective may be, if there is no constitutional authority for pursuing it, then the Constitution demands that the federal government step aside.

We sympathize with Keller’s goal to curb abusive lawsuits. But his supposed authorization—the all‐​purpose Commerce Clause—doesn’t permit Congress to commandeer state courts and tell them what type of tort litigation they can entertain. Fatty food suits are said by Keller and his allies to hinder interstate commerce, and thereby to invite federal intervention.

Undoubtedly, frivolous lawsuits against food manufacturers could jeopardize legitimate businesses that may be important to our national economy. Lawsuits against food manufacturers affect commerce in multiple states. But so does nearly every state regulation or court decision. The Commerce Clause would not permit the federal government to reduce minimum wages under state law, for example, even if high in‐​state wages discourage out‐​of‐​state employers from setting up shop.

Because of the Senate’s busy calendar, its version of the lawsuit immunity bill, sponsored by Mitch McConnell, R‐​Ky., faces an uphill battle. That’s good news. Supporters of the bill—mostly Republicans, self‐​styled defenders of federalism—are asking for trouble. Ronald Reagan once noted that a government big enough to give you everything you want is big enough to take it all away. Similarly, a Commerce Clause broad enough to solve every national problem is too broad not to be abused. When Congress’ authority to regulate interstate commerce is exploited to restrict state tort lawsuits against food companies, we should not be surprised when it is misused to tell us what we can eat.

That’s why critics of federal tort reform are not only those on the political left and their allies among the trial lawyers, many of whom favor a state‐​based system that can be manipulated to redistribute income from deep‐​pocketed corporations to “deserving” individuals. A different and more responsible criticism—constitutional in origin—embraces the need for reform but reaffirms this principle: The existence of a problem, however serious, does not justify federal remedies outside the scope of Congress’ delegated, enumerated and, therefore, limited powers. The making of tort law is not one of those powers.

About the Authors
Michael I. Krauss is professor of law at George Mason University. Robert A. Levy is senior fellow in constitutional studies at the Cato Institute. This article is drawn in part from the authors’ forthcoming Cato Policy Analysis, “Can Tort Reform and Federalism Coexist?”