It’s only human nature that when one devotes a great deal of time to a project, one wouldn’t easily hand it over to someone else. But when that person is a federal judge, and that project is oversight of an industry’s actions which are now regulated by federal law, separation of powers has to trump human nature.

This is not, regretfully, the outcome of a request by the major tobacco companies that federal district court Judge Gladys Kessler cede control jurisdiction over the U.S. government’s Racketeer Influenced and Corrupt Organizations Act (“RICO”) suit in light of Congress’s passage, and FDA’s implementation, of the Tobacco Control Act of 2009. Judge Kessler ruled yesterday that she was retaining jurisdiction over the companies’ RICO injunction.

WLF has always been of the opinion that the RICO suit was nothing more than a politicized attempt to judicially dictate controls over business conduct which government could not achieve through democratic means. Judge Kessler herself even questioned the judiciary’s involvement in the case, writing in one opinion,

It might be far more appropriate . . . for the body elected by the people, namely Congress, [to] step up to the plate and address national issues with such enormous economic, public health, commercial, and social ramifications.

Congress apparently was paying attention. Relying upon Judge Kessler’s factual findings from U.S. v. Philip Morris USA, Congress enacted a far-reaching law which sought to regulate the very type of behavior that the federal government claimed, and Judge Kessler agreed, were unlawful acts of racketeering.

The companies argued in their vacatur motion to the court that the Tobacco Control Act effectively removed the court’s subject-matter jurisdiction to enforce its RICO injunction. In the alternative, the companies also argued that the doctrine of primary jurisdiction compelled the court to cede authority to FDA, which created an entirely new agency section for tobacco control. Finally, they urged the judge to at least vacate or modify specific parts of her injunction.

Judge Kessler chose option “D” – none of the above – refusing to let go of any part of her injunctive authority. She simply does not trust that without the court’s direct involvement, the companies will refrain from new racketeering activity. She tried to distinguish her “narrow” injunction (which reads in part:Defendants must refrain from “any act of racketeering . . . relating in any way to the manufacturing, marketing . . .,” and from making “any material, false, or misleading statement . . .) from the broad purposes of the Control Act and FDA’s regulations.

Most outrageously, Judge Kessler wrote that the companies’ current legal and administrative challenges to parts of the Control Act are proof that a “reasonable likelihood” exists that the companies will engage in racketeering acts. Is she really saying that the companies’ assertion of their constitutional right to petition the government demonstrably shows that they might violate the law in the future?

U.S. v. Philip Morris USA is a monument to government-funded lawsuit abuse, standing for the proposition that the Justice Department can take any disfavored industry to court and rake it over the RICO coals until it submits. With yesterday’s order, the case is also now a regretful exhibit of judicial hubris and disregard for separation of powers.