Skip to main content

Legislating through Litigation

Oklahoma’s Attorney General and trial courts appear to now be in the business of taxing industries and appropriating funds to state agencies. These are powers that the Oklahoma Constitution explicitly grants to the legislature. They are certainly not given to the Attorney General or the courts. But in the name of mitigating a “public nuisance,” these legislative powers have effectively been misappropriated. 

 The $572 million judgment recently handed down in Oklahoma’s opioid litigation looks an awful lot like a piece of legislation. It purports to tackle a broad societal problem by taxing a company alleged to have contributed to it and using the money to fund government agencies and programs aimed at ameliorating the problem. The Court and Attorney General justified this approach by claiming an “abatement plan” was needed to counter the so-called public nuisance of prescription drug abuse. Besides stretching the public nuisance theory far beyond its historical application, the ruling closely resembles the type of public policy that is normally (and properly) implemented through legislation.

 For example, the Court's Order:
  • Creates and funds programs (well in excess of $100 million) at state agencies dealing with everything from prenatal screening and treatment for opioids to public medication disposal programs;
  • Funds licensing boards to hire additional personnel, including the state's veterinary, dentistry, nursing, and medical licensure boards;
  • Funds law enforcement agencies;
  • Funds programs at the OU Health Sciences Center; and
  • Contains a specific line item (more than $11 million) to fund the Attorney General’s office for, among other things, the AG’s “Policy and Legislative Development Tracking division.”
We elect legislators to perform this type of function, not judges. And for good reason. Legislators run campaigns proposing solutions to societal problems. Once in office, they can do expansive fact finding and hear from all segments of society. We can petition them to influence their policymaking. Most critically, when legislators make policy we think unwise we can vote them out of office and change course. This is the democratic process, and it has worked out pretty well for the United States over the last two centuries.

Judges perform a different function in our system. They are supposed to apply the rule of law to decide discrete disputes between parties with a particular stake in the outcome of the case. Public opinion and solving society’s problems are simply not in the job description. Again, this is for good reason. Judges do not have the tools legislators have to consider what is best for the broader society, and do not have the legitimacy that comes with standing for regular elections (yes, trial court judges are elected in Oklahoma, but they are prohibited from campaigning on particular issues and the races are nonpartisan, meaning they are mostly popularity contests).

 The opioid litigation featured the wrong branch of government (an executive agency instead of the legislature) using the wrong vehicle (a lawsuit instead of legislation) to lobby another wrong branch of government (the judiciary) to impose a tax, appropriation, and regulatory scheme. 

 Missing from all of this? The rule of law and those who are ultimately in charge of state policy, the People. What has happened to the separation of powers?

 There is no doubt that the illegal use and abuse of prescription drugs is a serious problem. Many people believe the state government has a role in trying to get control of the situation. Apparently those people have been voting, because the elected branches of state government have been passing legislation and setting up programs to try to combat the problem (and with some success; opioid-involved deaths have actually been on the decline in Oklahoma in recent years).

 So does it really matter how we get to a solution as long as we get one? What does it matter whether it was the AG suing a company and a judge making public policy from the bench rather than the elected legislature doing the legislating?

 For an answer to that question, ask yourself: if the abatement plan doesn’t work, how are you going to convince a district court judge in Norman to change the state’s policy? If a state agency misspends the money, who will you hold responsible at the ballot box? If you just plain disagree with this approach to the opioid abuse problem, who’s townhall meeting are you going to show up to?

Don’t look at the legislature, because they had nothing to do with this.

 Perhaps they should get involved.

Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.

Popular posts from this blog

A Blunt Cry for Covid Dread’s End

Allowing an admittedly adverse ailment to be inaccurately advertised as an apocalyptic abomination able to annihilate all is aggravating, annoying, and abhorrent. An accurate assessment advises any and all to avoid alarmism and act appropriately. Anxieties are anticipated, but authentic appraisal admits an alternative: any of advanced age or anemic autoimmunity are advised to avert ailment by avoiding acquaintances and afflicted areas. Adults, adolescents, and any of an early age are able to get back to business. Bodies are besieged and beset by baseless bombast. Broadcasters blithely belch baloney. Boorish bullies berate and belittle. Bureaucrats ban beneficial business. Busybodies blinded by bad bulletins belittle benign behaviors. But bravery and boldness bolster benevolence. By bringing back businesses, cities can commence circulation of currency and cooperative commerce.  Concededly, Covid causes casualties. However, careful consideration confirms: car crashes cruelly cause c...
Read more

If Data Is Supposed to Be Our Guide, the Great Coronavirus Shutdown of 2020 Should End

According to the most widely cited model projecting the course of the coronavirus outbreak, today is supposed to be Oklahoma’s peak in daily deaths. Now is a good time to go back to the beginning of the Great Coronavirus Shutdown of 2020, review the goal of our policy, and assess our current status. If our policy should be “data-driven,” as we are constantly told, then let’s actually look at the data and determine our next policy steps accordingly. Spoiler alert: according to the terms set out by those advocating for the shutdown policy, the policy’s continuance is no longer justified. The stated goal of the shutdown policy was to “flatten the curve” so as to prevent hospitals from becoming overwhelmed with COVID patients. The fear was that the virus would spread so fast that at its peak, the number of cases would exceed the overall capacity of the healthcare system. If that peak could be stretched out over a longer period of time, lives would be saved. This concept was il...
Read more

About Those Roads in Texas

A s Sooner fans head south for the OU-Texas game next week, they will encounter a phenomenon most of us are familiar with: as you cruise across the Red River suddenly the road gets noticeably smoother. The painted lane stripes get a little brighter and the roadside “Welcome to Texas” visitors’ center gleams in the sunlight, a modern and well-maintained reminder of how much more money the Lonestar State spends on public infrastructure than little old Oklahoma. Or does it? Why are the roads so much, well… better in Texas? Turns out, it isn’t the amount of money spent, at least not when compared to the overall size of the state’s economy and personal income of its inhabitants. Research conducted by 1889 Institute’s Byron Schlomach reveals that Oklahoma actually spends significantly more on roads than Texas as a percentage of both state GDP and personal income . And that was data from 2016, before Oklahoma’s tax and spending increases of recent years. The gap is likely gr...
Read more

Be Careful What You Wish For

The state of Oklahoma has California in its sight s . People and businesses seeking greater opportunity are fleeing California, and justifiably so. The most humane thing for Oklahoma to do is open our borders and offer economic asylum to the oppressed refugees of the People’s Republic of California. However, I urge caution. In an age dominated by masked faces and super-sensitivity to the spread of viral conditions, I suggest the California Condition (condition) should be met with great trepidation.   What is the condition? It is the virulent spread of tyranny and oppression. Common symptoms include limited freedom and mobility accompanied by exorbitant costs of living, energy, doing business, and pretty much everything else. Those suffering under the condition often experience a diminished capacity for reason. Uncommon symptoms may include fever and fits of rage. The condition is progressive. It tends to worsen as reason diminishes and illogic consumes the mind. Many that experienc...
Read more