"Impermissible." That's the word used last week by pro-tort-reformer Ted Frank on the Point of Law legal blog to describe the Constitutional status of H.R. 5, the "HEALTH Act," designed to pre-empt most health care-related lawsuits around the country. His post conceding that Congress should not "impermissibly federalize all medical malpractice litigation" capped a stunning week in which intellectual support for H.R. 5 evaporated.
On May 21, Prof. Randy Barnett, the GOP's favorite Constitutional scholar, wrote a scathing op-ed in the Washington Examiner and a Volokh Conspiracy blog post, both of which condemn H.R. 5 as a breach of states' rights (attached as Acrobat docs). He asked out loud if the House GOP are "fair-weather federalists." His op-ed was an intellectual and political earthquake; it was very widely distributed and the subject of an article in 'The Hill' on May 23. And note that Barnett's objections are NOT resolved by exempting state constitutions and courts from the reach of the bill, as Democrats tried to do during two committee markups.
On May 22, Prof. Ilya Somin of George Mason Law School, another Tea Party-side scholar, concurred with Prof. Barnett in a Volokh blog post, and he took his own shots at GOP supporters of H.R. 5. "Hopefully, at least some Republican conservatives will begin to see that you can't advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other."
On May 23, Ted Frank wrote his concession. Quote: "It's easy enough for Congress to condition portions of Medicare block grants on a state establishing reasonable medical-malpractice litigation guidelines, or for Congress to prohibit certain types of lawsuits over federally-funded medical care. It doesn't need to impermissibly federalize all medical malpractice litigation to accomplish reform." (Emphasis mine.)
That day, another noted legal expert on the pro-tort reform side, Walter Olson of the Cato Institute, also conceded that Barnett is right (attached in an Acrobat document). A short segment: "Thanks to star libertarian lawprof and Cato senior fellow Randy Barnett for pointing out something that has needed saying for a while: most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems. Most medical malpractice suits go forward in state courts under state law. If the U.S. Congress wishes to impose a nationwide rule on these suits, such as by limiting damages for pain and suffering, it first needs to answer the question: under which of the federal government's constitutionally prescribed powers is it acting? Even if it can identify such authority, it should also ask: is it a wise idea--consistent with what one might call a prudential federalism--to gather yet more power in Washington at the expense of the states? Unfortunately, the backers of the current federal med-mal bill have chosen to rely on the Supreme Court's very expansive "substantial effects" doctrine..." (Emphasis mine.)
On May 24, conservative legal expert Jonathan Adler added his opinion while commenting on Olson's post: "Olson is anything but an opponent of tort reform generally. Indeed, he's been one of the litigation explosion's most prominent critics. But he recognizes that support of a particular policy goal does not require abandoning a principled commitment to the broader federalist scheme." (Emphasis mine.)
On May 26, Prof. Randy Barnett was interviewed on the nationally syndicated 'What's Up' radio program by host Terry Lowry about how H.R. 5 violates the limitations on the powers granted to the federal government in the Constitution and Bill of Rights. You can listen to the first segment of his interview here and listen to the second segment of the interview here (MP3 audio files). Starting at 2:32 of the second segment, he said, "Congress doesn't really have the authority to do tort reform legislation because that has historically been within the province of the states..." He proceeded to reiterate the other points of his op-ed and that federal tort reform legislation is an abuse of the Commerce Clause, a point that Rep. Ted Poe made during consideration of H.R. 5 by the House Judiciary Committee.
Also recall that Constitutional conservative Rob Natelson of the Independence Institute in Colorado wrote a letter to the House Judiciary and Energy & Commerce Committees weeks ago to advise them that H.R. 5 is unconstitutional, with arguments very similar to those of Prof. Barnett. So that's six Constitutional experts against H.R. 5, from Natelson to Adler.
There's only one important question left for Republicans about H.R. 5, and it's purely political: WHY would the House GOP run over the Constitution to reward those medical associations which were the co-conspirators in the enactment of ObamaCare, thus shoving the unconstitutional individual mandate down our throats?!