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Andrew Cochran
Andrew Cochran
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Conservative Legal Experts Oppose “Federal Tort Reform”

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It’s remarkable that Texas Governor Rick Perry would call for "federal tort reform" and ignore the writings of so many highly respected conservative and Tea Party-side constitutional experts. Instead, he’s sided with the pro-tort reform community in its reliance on constitutional theory that enables the federal government to trample on individual and states’ rights in health care and tort law, issues which the Founding Fathers clearly reserved for the states alone. Ironically, his "federal tort reform" would reward members of health care associations, such as the AMA, AHIP, and the health insurance industry, which were the co-conspirators in the enactment of the Affordable Care Act, a.k.a. ObamaCare, which he promises to repeal. Let’s review the legal theories in controversy here and how conservative legal experts have condemned federal tort reform this year.

At the start of the new Congress, pro-tort reform Republicans, led by a "Doctors Caucus" seeking special protection for their industry, introduced a bill, H.R. 5, a bill to impose stringent limits on the damages that victims of medical malpractice and other health care negligence can seek. The limits would apply to all lawsuits in the U.S. against doctors, hospitals, drug and device companies, nursing homes, and the insurance industry. The bill preempts all state laws that provide additional protections to patients.

Rob Natelson, formerly of the University of Montana Law School, is now Senior Fellow at the Independence Institute, a Tea Party-side legal expert and a former Republican candidate in Montana. He was the first expert from "the right side" to criticize H.R. 5, in a letter to Congress in April, and then again in an op-ed piece on May 9. Here are some excerpts from each:

H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments. H.R. 5 is purportedly an exercise of the Constitution’s Commerce Power. Yet as I shall explain, its subject-matter—civil actions in federal and state courts—is not within the Constitution’s meaning of “Commerce.” Nor can H.R. 5 be justified under the Necessary and Proper Clause as incidental to the regulation of interstate Commerce. On the contrary, during the debates over ratification of the Constitution, leading Founders specifically represented that the subject-matter of H.R. 5 was outside federal enumerated powers and reserved to the states…

Even before the Ninth and Tenth Amendments reinforced the limits, Founders, such as Madison, Hamilton, and James Wilson, among others, represented that tort law and civil justice specifically were to be state concerns. True, Congress could erect and regulate federal courts with diversity jurisdiction, but only because of separate constitutional grants, not as a result of the Commerce Power. Indeed, I have never seen any evidence that the power to erect and regulate federal courts included authority to alter prevailing tort law even in those courts, and certainly not in state courts.

To the extent that H.R. 5 regulates health care in addition to civil justice, it is also outside the Commerce Clause. No less an authority than Chief Justice John Marshall said so, in Gibbons v. Ogden, a decision celebrated as an expansive interpretation of the Commerce Power. In that case, Marshall (himself formerly a leading Ratifier) stated that “health laws of every description”—presumably including laws governing health care litigation—were reserved exclusively to the states…

Up till now the state courts have been one of the few areas of life relatively untouched by federal meddling. That is as it was supposed to be: State court systems are central to state sovereignty. Moreover, the Constitution reserves most issues of civil and criminal justice to the exclusive authority of the states, rather than the federal government. When the Constitution was being considered, its supporters said explicitly that state court systems are constitutionally out-of-bounds for Congress…

HR 5 is advertised as addressing abusive lawsuits against physicians, but it goes far beyond that. It would regulate in detail just about every American lawsuit that has anything to do with health care: What an injured party can allege in his or her initial filing, the damages he or she can recover, how damages are disbursed, burdens of proof, what the jury may and may not consider, which state laws survive and which don’t. HR 5 even directs state judges to conceal pertinent information from the jury. It’s not certain the Supreme Court would uphold all of this bill. But it is certainly a flagrant invasion of local control. Here’s a real irony: The Republicans supporting HR 5 justify it by parroting exactly the same ridiculous "Commerce Clause" claims the President uses to justify ObamaCare.

Partially in response to the Rob Natelson’s April letter to Congress, the pro-tort reform side trotted out a corporate lawyer to write a defense of H.R. 5. The paper relies on what has become, since the early 1940s, the standard basis cited for all encroachments by the federal government into business decisions. Quoting from the ATRA paper:

"Since the 1942 case of Wickard v. Filburn, involving Congress’s power to regulate the production of homegrown wheat, the United States Supreme Court has interpreted the Commerce Clause quite broadly with respect to the regulation of economic activity… The nonpartisan Congressional Research Service (CRS) has closely analyzed judicial precedent and concluded that ‘there seems little doubt that tort reform legislation, in general, would be within Congress’s commerce power.’ Under its power to regulate interstate commerce, Congress may ‘make such legislation applicable to intrastate torts, because tort suits generally affect interstate commerce.’ With respect to the HEALTH Act, CRS has specifically recognized that ‘[m]edical malpractice liability is governed by state law, but Congress has the power, under the Commerce Clause of the United States Constitution (Art. I, § 8, cl. 3) to regulate it.’ Healthcare is truly national in scope and fundamental to interstate commerce… By placing an upper limit on subjective and otherwise limitless pain and suffering damages against doctors and other medical professionals, Congress can promote a more cost-effective healthcare delivery system… H.R. 5 is consistent with the Tenth Amendment, which provides that ‘[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’"

Other conservative and Tea Party-side legal experts revolted openly against this paper and H.R. 5, and chastised House Republicans for condemning ObamaCare in one speech and pushing the expansion of fedral authority over health care and states’ rights in another.

Professor Randy Barnett of Georgetown University Law Center, the conservative legal superstar involved in the multistate lawsuit against ObamaCare in federal court, wrote in an op-ed on May 21: "But tort law — the body of rules by which persons seek damages for injuries to their person and property — has always been regulated by states, not the federal government. Tort law is at the heart of what is called the "police power" of states… Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power. This issue concerns constitutional principle, not policy: the fundamental principle that Congress has only limited and enumerated powers, and that Congress should stay within these limits. Constitutional law professors have long cynically ridiculed a ‘fair-weather federalism’ that is abandoned whenever it is inconvenient to someone’s policy preferences. If House Republicans ignore their Pledge to America to assess the Constitution themselves, and invade the powers ‘reserved to the states’ as affirmed by the Tenth Amendment, they will prove my colleagues right."

Prof. 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, especially that federal tort reform legislation is an abuse of the Commerce Clause.

Prof. Ilya Somin of the George Mason University School of Law, another conservative legal expert who co-authored amicus briefs in anti-ObamaCare court cases, concurred with Prof. Barnett in a May 23 blog post. "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. In this post, I explained why federally mandated tort reform is, in most cases, both constitutionally dubious and unnecessary. The better way to restrict abusive tort suits is through interstate competition combined with constraints on states’ ability to regulate conduct outside their borders." The previous post to which he referred was in February in which he wrote, "In my view, however, current precedent is badly misguided in allowing Congress to regulate virtually any ‘activity.’ Therefore, I think most federally mandated tort reform is in fact unconstitutional, even if the Supreme Court would permit it to go forward."

Yet another respected conservative professor, Jonathan Adler of the Case Western Reserve School of Law, wrote a very brief comment against H.R. 5 in support of an attack from an unusual source, an pro-tort reform advocate, about which I will write in a separate post. Prof. Adler wrote that, "support of a particular policy goal does not require abandoning a principled commitment to the broader federalist scheme." Professor Adler is a frequent contributor to the events and publications of the Federalist Society, considered the premier conservative-side legal organization in the country.

Professor John Baker, a Distinguished Scholar at Catholic University Law School, Professor Emeritus at LSU Law School, and frequent presenter at Federalist Society events, wrote on the "Daily Caller" website on June 22 that H.R. 5 and ObamaCare are two peas from the same post-Willard Commerce Clause pod:

"To justify their efforts to nationalize medical malpractice law, House Republicans are stretching the Supreme Court’s New Deal Commerce Clause jurisprudence almost as far as Democrats did for Obamacare. Both national medical malpractice reform and Obamacare are radically at odds with our constitutional structure of federalism, though Obamacare is especially radical because it represents the first time that the federal government has required people to purchase a product (health insurance).

What compels House Republican leaders to ignore the Constitution? Nationalizing medical malpractice law would not necessarily protect hometown doctors. Some states currently offer doctors better protection, without being subjected to federal bureaucrats. Other states would do so if doctors worked their own state legislatures, rather than relying on a Washington lobby, the American Medical Association.

The explanation for the eagerness of House Republican leaders to nationalize even more of the economy is a simple reality: both Congressional Democrats and Congressional Republicans like the New Deal interpretation of the Commerce Clause, which allows them to expand national power. They would just do so for different purposes."

Prof. Baker went further, warning Republicans like Rick Perry that enacting a federal tort reform bill like H.R. 5 could boost the chances that the Supreme Court would rule favorably on the Affordable Care Act. "Seeing that Republicans are as willing as Democrats to nationalize different parts of healthcare, the justices might conclude that there is a Congressional consensus to nationalize all of healthcare. Since justices tend to defer to Congress, that might be enough to tip the scales in Obamacare’s favor."

Is that really what Rick Perry wants? To boost the chances of victory for ObamaCare?

Rob Natelson returned to the subjects of federal tort reform and the Commerce Clause on July 18 in the course of a discussion on Chief Justice John Marshall and his signature case, Gibbons v. Ogden, on the Tenth Amendment Center website:

"Gibbons v. Odgen is often appealed to, as Justice Jackson did, for a very broad reading of the ‘commerce’ component of the Necessary and Proper Clause. Under this reading, the Necessary and Proper Clause allows Congress to regulate any economic activity "substantially affecting" interstate commerce: agriculture, mining, manufacturing, heath care, insurance, medical marijuana–in fact, the entire economy.

However, Gibbons did not even mention the Necessary and Proper Clause. The primary holding of Gibbons was that navigation was within the prevailing legal definition of ‘commerce’ for constitutional purposes–a decision that, under the original understanding of the Constitution, was clearly correct. Some of the Court’s dicta (extraneous language) added that in some circumstances commerce (including navigation) within state boundaries might be so tied up with interstate commerce that Congress could regulate it as well. But when Marshall addressed other aspects of the economy, it was to say that they were outside of Congress’s power. He specifically mentioned ‘health laws of every description’ as being reserved exclusively to the states.

So those who use Gibbons to argue for the constitutionality of federal control of manufacturing, agriculture, land use, or health care are twisting some of Marshall’s words and omitting others.

In other words, the pro-ObamaCare forces and the pro-tort reform causes make the same error for the same reasons. In both cases, the result of victory in each case would be the exercise of excessive federal power, to the detriment of individual rights and the rights of individual states to regulate and manage the daily activities of the citizenry."

That makes FIVE conservative legal experts, bright shining stars in the conservative legal universe, standing against the concept of federal tort reform. Two other legal experts wrote about the unconstitutionality of H.R. 5, but they deserve special discussion in another post, because they’re pro-tort advocates who recognized the unconstitutionality of H.R. 5.