In the Obamacare decision on Thursday, the five conservative Supreme Court Justices rejected the unlimited scope of the Commerce Clause and the Necessary & Proper Clause envisioned by proponents of federal tort reform bills (especially caps on damages in medical malpractice lawsuits). Justice Roberts was especially deferential to federalism, employing the terms "state sovereignty" and "enumerated powers" often in his decision. Proponents of federal tort reform are among the big losers in the Obamacare decision.
Moreover, the majority adopted the framework for decisions on both clauses as proposed in amici briefs or articles by numerous anti-Obamacare legal experts, such as Profs. Randy Barnett and Ilya Somin; Virginia AG Ken Cuccinelli; Rob Natelson of the Independence Institute and Tenth Amendment Center; Prof. John Baker of LSU and Catholic University Law Schools; Carrie Severino of the Judicial Crisis Network; and Senator Mike Lee.
Each of the conservative and libertarian legal experts cited above are anti-Obamacare ANDanti-federal tort reform. They know that Obamacare and federal tort reform, especiallyH.R. 5, the bill to cap medmal damages, are the "Wickard Twins," equally based on the 1942 Wickard v Filburn decision by the Supreme Court. The decision, cited numerous times in the Obamacare decision by all of the Justices, led to the explosion in the scope of the Commerce Clause that finally ended with the Obamacare ruling.
And other legal experts, particularly Rob Natelson, have written frequently that the Necessary & Proper Clause doesn't create additional powers ...; it enables Congress to exercise those powers which are merely "incidental" to Congress's enumerated powers. The conservative majority adopted that view in toto, thus further limiting the constitutional basis for federal laws designed to take over state tort law and courtrooms.
So any Congressman or Senator looking for support from Randy Barnett, or any of the other experts cited above, for federal tort reform is in for a rude awakening. They've already warned Republican leaders that federal tort reform, especially medmal caps, are just as unconstitutional as Obamacare, for the same reasons. Those leaders just don't want to listen.
Here are illustrative quotes in Justice Roberts' rulings on the Commerce Clause and the Necessary & Proper Clause, equally applicable to any federal scheme to take over state tort law:
"State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power." New York v. United States, 505 U. S. 144, 181 (1992). Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens' daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which "in the ordinary course of affairs, concern the lives, liberties, and properties of the people" were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293(J. Madison).."
"The Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer."
"The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States."
"Applying these principles, the individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power...The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power... Rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it."
Comment
Comment by Michael J. Larkin on July 1, 2012 at 10:21am Thomas Jefferson warned us, "If the Federal Government has the exclusive right to judge the extent of of its own powers, it will continue to grow regardless of elections, the separation of powers, and other limits to government power." Our Constitution is dead, the SC will make our laws from now on. (as it did in Brown v. Board and Roe V.Wade) With marxists like Kagan, Soto and Ginsberg, and idiots like Roberts, there is no hope.
Comment by JMC on June 29, 2012 at 7:45pm Thanks for the info Kristin, I didn't know that many organizations had filed suit.
Comment by Chas Jones on June 29, 2012 at 5:57pm The Roberts opinion unleashes the single greatest attack upon State Sovereignty in the history of our republic. It creates both a new federal tax scheme and uses it to allow congress to demand people do anything congress demands ... and any who fail or refuse to comply may be taxed without limit!
Wake Up Folks. I am appalled this isn't crystal clear to every member of TPN!
Comment by Richard Banko on June 29, 2012 at 5:52pm Listen folks - like it or not - this bill was never about health insurance - that was a cover up - it was about power and authority and taxes - they've won - yesterdya was a major loss for this country - the only thing we can pray for now is that it fires up enough people to say enough is enough and vote them out so the bill can be over turned - if it's not- yestersya was the beginning of the end of this country - it's really that simple though no one wants to hear that - there are no alternatives left - vote thwm out or end up in squalor
Comment by Juls on June 29, 2012 at 5:43pm Ain't it the truth Vern? I'm spending a relaxing evening watching "Young Frankenstein" and "The Pink Panther Strikes Again" and leaving this mess behind for awhile.
Does your dog bite? LOL I love this stuff!!!
Comment by Kristin Fecteau on June 29, 2012 at 5:36pm Michael, you wouldn't know whether suit has been filed because there has been a total media blackout about it. However, yes, 43 organizations have filed suit against the Administration. http://www.foxnews.com/politics/2012/05/21/catholic-organizations-a...
John Roberts is Catholic and he should be very ashamed of himself.
Comment by Michael J. Scott on June 29, 2012 at 5:16pm Well, I'm breathing a little easier today. I don't agree with keeping Obamacare afloat, but at least they aren't saying Congress has the power to make us do anything it wants. That was my #1 beef with the bill. My #2 beef hasn't been addressed, and that is that Obamacare forces religious organizations to abandon their principles or be penalized. That much ought to be tossed out as well.
And, of course, there's beefs #3 and #4 - radical increase in taxes and further regulation of the private sector by the hand of government. More beefs, of course, but I do feel a little better about the ruling with respect to the Commerce Clause.
Have the American Catholic Bishops filed suit yet? I don't remember whether or not that's happened, or where the case is at if so. I suspect, if they have, that it's wending its way through the court system as well.
In short, this isn't over yet.
Comment by Debrajoe Smith-Beatty on June 29, 2012 at 4:40pm Thanks.
Comment by Vern Shotwell on June 29, 2012 at 4:36pm Thanks Andrew.
Perhaps the Commerce Clause was treated fairly well, but taxation not.
Too much has been upset in the past day for me to comment intelligently! The potential impingement of this decision on so many areas taxes my feeble mind.
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