In an opinion piece in yesterday’s New York Times, Thomas W. Evans, a former adviser to presidents Ronald Reagan and George H. W. Bush and the author of The Education of Ronald Reagan: The General Electric Years and the Untold Story of His Conversion to Conservatism, lays out the legal case for the United States to sue the oil producing nations of OPEC in order to break the power of the cartel. He argues that the president need simply to allow the states to seek relief in Supreme Court under our antitrust laws.
Citing a seldom-used provision in the Constitution, Evans contends that:
The attorneys general of the various states should sue OPEC as an alien or, pleading alternatively, as a foreign state. (A joint action by the attorneys general is the method the states used to collectively sue tobacco companies, Microsoft and health maintenance organizations.)
The states should contend that Article III of the Constitution outweighs the act of state doctrine. Respect for the sovereignty of a foreign government for acts “done within its own territory” does not, even if very liberally construed, protect decisions reached by a cartel based in Austria that directs 13 nations to sell their product at inflated prices to customers outside their boundaries. If the states won the case, the court could recover substantial damages based on assets and commercial activities of OPEC member nations in the United States.
Undoubetedly, this might cause political friction with Arab leaders but as Evans argues the region is hardly stable now and starting a lawsuit might be better than starting a war.
For more on The Education of Ronald Reagan, including other editorials by Thomas Evans.