What's Good For Philip Morris isn't Necessarily Good for the USA

Every now and then the Supreme Court decides a case in which the right result is so blindingly obvious that you're left scratching your head as to how it got there in the first place. Yesterday's Supreme Court ruling in Watson v. Philip Morris is such a case. The federal removal statute provides for removal of state law cases from state to federal court where the defendant is the "United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office . . . .” Philip Morris argued that it was a "person acting under" US officers because intensive regulation of the tobacco industry makes tobacco companies the agents of the U.S.

Justice Breyer's unanimous opinion rejecting this bold-bordering-on-preposterous argument proceeds in 4 simple steps:

1) "the removal statute applies to private persons who lawfully assist the federal officer in the performance of his official duty" (internal quotation marks omitted);

2) "the help or assistance necessary to bring a private person within the scope of the statute does not include simply complying with the law" because the whole point of the removal statute is to provide a federal forum for federal actors who might encounter hostility in state court, and simply complying with a federal obligation will not subject a party to anti-federal bias;

3) the reading advanced by Philip Morris would enormously expand federal court removal jurisdiction;


4) the alternative argument advanced by Philip Morris---that it exercised authority specifically delegated by the US in testing its products---is not supported by the record.

Amazingly, the Eighth Circuit had come to the opposite conclusion. How come? The answer, I think, is that the text and precedents could have been plausibly be read to provide for removal here (and in a great many other cases too), and Philip Morris was represented by extremely able counsel. But the appeals court judges forgot to ask themselves the following question: How will it look on the front page of national circulation newspapers if the courts say that Philip Morris is the effective equivalent of the United States? Justice Breyer's opinion is well-reasoned and faithful to the precedents, but this is one of those cases in which, once you really understand the question presented, you know what the result is going to be without having to look up any of the law.