Federal Law Limiting Medmal Awards Is Neither "Free-Market Alternative" Nor Constitutional


The chairman of the top health subcommittee in the House, Rep. Joe Pitts, announced this week that the House GOP would offer a "replace Obamacare" bill that be a "free-market alternative." But he added that the proposal would mandate a federal cap on awards in medical malpractice lawsuits filed anywhere in the U.S. There's nothing "free-market" about using federal law to give orders to juries and judges sitting in state courtrooms. The Founding Fathers trusted local juries to make the decisions on claims before them, including the level of damages. That's why so many Republican Members of Congress, conservative legal scholars, and states' rights advocates have criticized legislative proposals to federally mandate awards in medmal lawsuits, tell local judges which cases they can and cannot handle, and impose federal wage controls on attorneys. Did Rep. Pitts pay any attention when Ken Cuccinelli, Attorney General of Virginia, promised that he would sue to stop such a law more quickly than he sued to stop Obamacare? Or when Randy Barnett, co-counsel for the NFIB in the lawsuit to kill Obamacare, wrote that tort law belongs exclusively to the states and called out Republicans like Pitts as "fair-weather federalists?" Or when his fellow Republicans in Congress such as Senators Tom Coburn and Mike Lee, and Reps. Lee Terry, Morgan Griffith, Ted Poe and Louis Gohmert stood up for the Founding Fathers' vision of liberty, trusted local juries and opposed federal medmal limits? Or when Rob Natelson of the conservative Independence Institute documented the writings of the Founding Fathers, in which they clearly insisted on protecting the right to a civil jury trial in state courts from federal interference? Or when the Cato Institute reported that medmal caps hurt consumers, or when the non-partisan National Conference of State Legislators objected to federal medmal limits in a letter to Congress? What do the 7th Amendment and 10th Amendment mean to Rep. Pitts?

Why doesn't he realize that his beloved federal cap on medmal lawsuit awards shares the same basis in constitutional theory as the Obamacare he wishes so hard to replace? Both are fundamentally based on the expansion of the Commerce Clause initiated after the Supreme Court's decision in Wickard v. Filburn. The Obama Justice Department cited that case in its briefs in Obamacare cases (page 18), and the American Tort Reform Association cited it in a paper supporting federal medmal limits (page 2). Or does Rep. Pitts recognize only those limits on federal power with which he agrees?

And why - WHY - does Rep. Pitts want to reward the pro-Obamacare and pro-abortion AMA and their buddies among medical groups, who shoved the individual mandate down our throats? Why does he want to give them partial civil immunity from deadly medical errors when they're pursuing the federal takeover of all health care?

Maybe most importantly, is Rep. Pitts speaking just for himself or for most or all of the House GOP? If he took off on his own to propose an unconstitutional and hypocritical bill, then it's easy to predict the bill won't enjoy even the support of too many Republicans. Let's hope so.

Leave a comment

About this Entry

This page contains a single entry by Andrew Cochran published on January 26, 2012 12:43 PM.

Seven Reasons Why Protecting 7th Amendment Should Be Republican & Tea Party Priority was the previous entry in this blog.

When Clarence Thomas & John Roberts Defended The 7th Amendment is the next entry in this blog.

Find recent content on the home page or look in the archives to find all content.