This week we've been deluged with the reports on the oral argument before the Supreme Court on the Obamacare case. And last week, the House GOP leadership pushed a bill combining federal limits on medical malpractice lawsuits with an attractive bill to repeal a key component of Obamacare.
The two belong together. After all, Obamacare and federal tort reform are equally and fundamentally based on the expansive interpretation of the Commerce Clause initiated after the Supreme Court's 1942 decision in Wickard v. Filburn. The Obama Administration cited Wickard to support ObamaCare (page 18); the American Tort Reform Association cited it to support H.R. 5 (page 2), the bill to limit awards in medical malpractice and health care-related lawsuits. Constitutional conservatives and states' rights advocates consistently oppose both Obamacare and federal tort reform. That's why VA AG Ken Cuccinelli sued to block Obamacare and promised to sue to block any federal law to limit medmal awards. It's why Prof. Randy Barnett is a leading anti-Obamacare co-counsel and why he criticized federal tort reform bills twice last year, including H.R. 5. Ditto Carrie Severino, who wrote the Senate Republicans' amicus brief against Obamacare and warned them against including a medmal limit section in their jobs bill. Tea Party Nation founderJudson Phillips and Sens. Tom Coburn and Mike Lee consistently opposed both, with Senator Lee criticizing federal tort reform again this week. Constitutional scholars Rob Natelson and Ilya Somin contributed separate amicus briefs in the Obamacare cases and have criticized H.R. 5 multiple times between them.
Meanwhile, the AMA and fellow medical groups worship at the Wickard altar and want both Obamacare, for millions of new forced patients, and federal medmal limits, for special protection unmatched for any other industry. They pushed successfully for the House GOPto ignore states' rights and to override state medmal law and court decisions by voting forH.R. 5.
The debate over H.R. 5 was a showcase for constitutional hypocrisy and should have been an embarrassing spectacle for Republican states' rights advocates. In 8 hours of floor debate over two days, reported on 65 pages in the Congressional Record, the proponents of federal tort reform in H.R. 5 didn't cite a single sentence by any Founding Father - didn't even name a Founder - in support for their proposition that the federal government can take over state tort law. Neither did they cite or quote the writings of a single current respected constitutional scholar in support of H.R. 5. Meanwhile, it was Democratic Reps. John Conyers, Maxine Waters and Sheila Jackson Lee who quoted conservatives and libertarians, from those named above to Pres. Ronald Reagan, for their opposition to any federal tort reform bill. Fortunately, there were almost two dozen House Republicans who voted with the Founding Fathers and did not vote for H.R. 5, including many members of the "10th Amendment Task Force," formed specifically to stand up for federalism. These Members resisted threats and promises to vote with their conscience.
According to one published report, House leaders wanted to reel the AMA "back in the fold" so it supports Republican candidates and policy objectives with campaign contributions. That's not worth the cost of dishonoring the Constitution's clear language and the Founders' writings, none of which grant authority over tort law to the federal government, and instead reserve the adminstration of state courtrooms to state legislatures. And it's not worth rewarding the medical groups seeking to jam an equally unconstitutional individual mandate down our throats.
It better be a really big check.