It's doubtful that even the government's remaining demands -- $10 billion for a smoking cessation program, $4 billion for anti-smoking "education," and financial penalties that would be imposed if the number of smokers under 21 does not decline at a government-specified rate -- meet this test. Judge Kessler, who presided over a nine-month trial that ended in June, has yet to decide whether the tobacco companies are guilty of racketeering and, if so, what remedies are appropriate.

 Although the federal lawsuit looks like a flop, the example set by the MSA remains worrisome. Already it has inspired a legal assault on gun manufacturers, and it's not hard to imagine government-sponsored attacks against distillers, fast food chains and other businesses blamed for their customers' risky choices.

 The ramifications extend beyond U.S. borders. Last month the Canadian Supreme Court approved British Columbia's lawsuit demanding compensation from tobacco companies for smoking-related medical expenses, and since then Quebec and Nova Scotia have announced similar suits.

 Anyone troubled by this trend should root for the Competitive Enterprise Institute, a D.C.-based think tank that recently filed a federal lawsuit seeking to overturn the MSA. The suit argues that the deal violates the Constitution's requirement that interstate compacts be approved by Congress.

 There's reason to believe Congress would have objected to the MSA. In 1997 the attorneys general who put the agreement together asked Congress to endorse a similar deal, implicitly conceding that the Constitution required such approval. When Congress turned them down, they decided they didn't need permission after all.

 Instead of being punished for their lawlessness, these extortionists have reaped political benefits as foes of Big Tobacco. Talk about ill-gotten gains.