{
  "id": "98-344",
  "type": "CRS Report",
  "typeId": "REPORTS",
  "number": "98-344",
  "active": false,
  "source": "EveryCRSReport.com",
  "versions": [
    {
      "source": "EveryCRSReport.com",
      "id": 105111,
      "date": "1998-04-08",
      "retrieved": "2016-05-24T20:55:10.966941",
      "title": "Tobacco Litigation: Constitutional Issues Raised by Proposed Federal Legislation to Cap Attorneys' Fees",
      "summary": "Proposals have been made for Congress to enact a law placing a cap on the fees that states could\npay\nattorneys they have retained to pursue litigation against tobacco companies to recover tobacco-\nrelated medicaid expenditures or other causes of action. Such caps would apply to existing contracts. \nConsideration of a law imposing such caps has raised several constitutional issues, which we address\nin this memorandum. The four issues involve: (1) Congress's commerce power, (2) due process,\n(3) the takings clause, and (4) federalism.\n  When considering the constitutionality of any federal statute, one must initially determine\nwhether any power enumerated in the Constitution authorizes Congress to enact the statute. If the\nanswer is affirmative, then one must determine whether the statute violates any provision of the\nConstitution. The enumerated power that would apparently give Congress the authority to cap\nattorneys' fees in connection with the ongoing tobacco litigation is the Commerce Clause, which\ngives Congress the power to \"regulate Commerce with foreign Nations, and among the several\nStates\" (Art. I, Section 8, cl. 2). The commerce power has been held to apply to\n intra state activities\nthat substantially affect interstate commerce.\"  United States v. Lopez , 115 S.  Ct.\n1624,\n1630 (1995). There seems little possibility that a court would find that the ongoing tobacco litigation\ndoes not substantially affect interstate commerce.\n  A statute capping fees would almost certainly not violate due process, as economic regulations\nsuch as this, even if they have retroactive effect, violate due process only if it can be shown \"that the\nlegislature has acted in an arbitrary and irrational way.\"  National Railroad Passenger Corp.\nv.\nAtchison, Topeka & Santa Fe Railway Co. , 470 U.S.  451, 472 (1985). The \"Takings\nClause\" issue\nis less certain. If the cap were to deprive an attorney of only a moderate portion of what he would\notherwise receive, the reduced amount was reasonable or \"nonconfiscatory,\" and the legislative\npurposes of the statute were compelling, it is likely that the fee cap would not violate the Takings\nClause. If, however, the reduction in a lawyer's compensation were severe and the legislative\npurpose were seen as less than compelling, an unconstitutional taking might well be discerned.\n  As for the federalism issue, there is a series of vacillating Supreme Court decisions respecting\nthe power of Congress to regulate the states as states. These decisions, at least for the moment, are\napparently inconsistent with each other, so it is impossible to predict which ones the Court would\napply in deciding a challenge to a fee cap in this situation. It appears, however, that a cap imposed\non the states might successfully be challenged as unconstitutional on federalism grounds.",
      "type": "CRS Report",
      "typeId": "REPORTS",
      "active": false,
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      "topics": []
    }
  ],
  "topics": [
    "American Law",
    "Constitutional Questions"
  ]
}