March 2012 Archives

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 founder Judson 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. Reps. Ted Poe and Ron Paul are among the numerous House Republicans who criticize both Obamacare and federal tort reform on constitutional grounds.

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 GOP to ignore states' rights and to override state medmal law and court decisions by voting for H.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.

On November 28, I posted about a speech by a true constitutional conservative and Tea Party favorite, Republican Sen. Mike Lee of Utah, in which he explained that he wouldn't vote for a Senate Republican jobs bill because it included a section imposing federal limits on awards in medical malpractice lawsuits (the Senate version of H.R. 5, passed by the House last week).

Sen. Lee discussed the Obamacare case on Fox Business Network yesterday, and he used the opportunity to again make the link between Obamacare and federal tort reform, as many conservatives and libertarians have done in criticizing H.R. 5. The anchor didn't ask for his views on federal tort reform; the Senator volunteered the comparison. Here is the pertinent excerpt, from a transcript provided by Congressional Quarterly:

Decisions like this, gut-wrenching difficult decisions about health care reform, are made by states. They ought to be made by states. It's the states that license doctors and nurses and hospitals and clinics. It's the states that license and regulate health care, health insurance companies. It's the states that come up with the system of tort laws that govern medical malpractice lawsuits.

So states control all these drivers of health care costs. It's entirely appropriate for states to engage in more comprehensive types of reform.

Now, a state like mine, Utah, isn't going to make the same decisions that a state like Massachusetts or Vermont might make, and thank heaven for that. But there is a fundamental difference between what happens when a state does this as compared to when Congress does it.

Now if only Sen. Lee's Republican colleagues will listen to him...

This week, the House of Representatives will debate and vote on the fiscal year 2013 budget for the federal government. House Republican leadership supports the budget proposed by House Budget Committee chairman Rep. Paul Ryan. But the Ryan budget dishonors states' and individual rights protected by the Constitution and Bill of Rights, by proposing to cap non-economic damages in medical liability lawsuits across the country, without respect to existing state law governing civil suits (see page 55 of the Ryan budget proposal). Similar to the proposal in H.R. 5, the bill passed by the House last week to take over state courtrooms and impose federal limits for medical malpractice lawsuits, the Ryan budget proposal ignores the objections to federal tort reform by numerous conservatives and libertarians, as documented here over and over again.

But another budget plan proposed by numerous conservative House Republicans, respects constitutional rights and honors federalism, and should be supported by the House majority. The Republican Study Committee's proposed FY 2013 budget doesn't interfere in state courtrooms protected by the 10th Amendment or our right to a civil jury trial protected by the 7th Amendment. It doesn't propose any caps on damages, thereby recognizing that tort law isn't an enumerated power for the federal government in the Constitution.

Real constitutional conservatives in the House should honor the Constitution and Bill of Rights and vote for the RSC budget.

In a briefing paper sent to House Republican staff, a House Republican leader and the chairman of the House Judiciary Committee, Rep. Lamar Smith, are misquoting Ronald Reagan on the subject of tort reform. Reagan spoke about tort reform only once in his career, and in that speech specifically referred to the states' authority to run their own civil justice system under the Constitution. Yet that statement is excluded from the GOP leaders briefing paper to Members on H.R. 5. I wrote a lengthy post about this on January 24 of this year. Here is what Reagan said in that speech, including a sentence in which Reagan defended states' rights over tort law:

"Earlier this year I endorsed the report of my Domestic Policy Council's Tort Policy Working Group. This report contains a number of recommendations, recommendations that include fixed-dollar limitations for certain kinds of awards and the establishment of assurances that liability judgments go to those actually wronged or injured and not to the lining of their attorney's pockets. Now, one of the report's most important recommendations urged our administration to submit reform legislation to the Congress.

This legislation, carefully drafted, has now been introduced in the Congress by Senator Robert Kasten and Congressman Hamilton Fish. It restores the fault standard, which requires that actual fault or wrongdoing must be established in most cases before liability can be assessed. It limits pain-and-suffering and punitive damage awards, awards the amount contingency-fee lawyers could earn, and restricts the joint and several liability doctrine that can force a single defendant to pay all damages even if he is only partly to blame. To be sure, much tort law would remain to be reformed by the 50 States, not the Federal Government. And in our Federal system of government this is only right. Many of the Tort Policy Working Group recommendations, for example, would have to be implemented at the State level to be fully effective. This administration's bill represents a much-needed overhaul of Federal laws governing interstate commerce --one of the fields of authority the Federal Government is specifically granted by the Constitution -- and sets an example of common sense for the rest of the Nation to follow."

THE GOP LEADERSHIP PAPER TO MEMBERS EXCLUDE REAGAN'S DEFENSE OF STATES' RIGHTS. Moreover, the paper excludes that fact that Reagan never proposed a federal tort reform bill in any State of the Union message or any economic proposal.

Ronald Reagan was a true constitutional conservative, and tort reform was not on his radar. To misquote him on this subject is a terrible disservice to his legacy and to those of us who worked for him in his Administration.

The problem with most of the proposed reforms in H.R. 5 is that the law governing medical malpractice claims is a state issue, not a federal issue. Despite H.R. 5's reliance on the Commerce Clause, Congress has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims.

So writes Hans von Spakovsky, Senior Legal Fellow at The Heritage Foundation's Center for Legal and Judicial Studies, where he manages the Civil Justice Reform Initiative. He joins the growing chorus of conservatives and libertarians condemning H.R. 5 as an unconstitutional overreach by Congress into tort law, an issue not enumerated for the federal government in the Constitution. He joins the National Conference of State Legislators, constitutional scholars Rob Natelson and Ilya Somin, and Tea Party Nation leader Judson Phillips who have so criticized H.R. 5 in the past week. Last year, each of those parties criticized H.R. 5 on constitutional grounds, as did conservative and libertarian superstars such as Virginia AG Ken Cuccinelli; Profs. Randy Barnett and John Baker; Sens. Tom Coburn and Mike Lee; Carrie Severino of the Judicial Action Network; Reps. Ron Paul, John Duncan, Ted Poe; and Tea Party leader Mark Meckler. Even legal experts critical of the tort system such as Ted Frank and Walter Olson have described H.R. 5 as "impermissible" (Ted Frank's term).

Republican and Democratic Congressmen are trying to amend H.R. 5 to protect states' and individual rights before the House votes on it later this week. Americans who cherish their God-given rights should call the U.S. Capitol switchboard at 202-225-3121, ask to speak with their Congressman and insist that he/she oppose that bill unless the unconstitutional language is removed.

The fervor with which many of my fellow Republicans support a nationwide limit on awards in medical malpractice lawsuits masks a deep schizophrenia inside Republican circles. For even the most ardent opponents of trial lawyers and civil suits in medmal cases flip-flop to SUPPORT civil suits to protect First Amendment rights and for lawsuits related to selected social issues. And the bills don't cap damages, override state law, or set a cap on the attorneys' fees, unlike H.R. 5, the bill before the House this week to severely limit medmal suits.

On February 28, the House agreed, by a simple voice vote, to pass H.R. 1433, the "Private Property Rights Protection Act of 2012," which assists private property owners subject to abusive eminent domain actions by local governments. The official summary of the bill states that it "establishes a private cause of action for any private property owner or tenant who suffers injury as a result of a violation of this Act." Moreover, the bill also prohibits state immunity againsg civil actions in federal or state court. I covered that bill here from its inception last year, and was astonished with the dedication that anti-medmal-lawsuit Republicans gave to protecting private property rights through civil suits brought by trial lawyers.

The abortion issue and the conscience protection issue arising from the enforcement of Obamacare mandates have led to numerous bills in which one or more parties with an interest are invited to file civil suits.

For instance, H.R. 3802, the "National Pro-Life Waiting Period Act of 2012," prohibits an abortion provider from performing an abortion without waiting 24 hours after obtaining a written certification from the pregnant woman certifying the date and time of her first in-person meeting with the provider to seek the abortion. The bill enables the pregnant woman, or the parents/legal guardians of a pregnant minor, to sue the abortion provider if an abortion has been performed in violation of this Act. I know if at least three other pro-life bills introduced in this session of Congress that enable civil suits against abortion providers, including H.R. 3541, the "Prenatal Nondiscrimination Act," which prohibits an abortion based on the sex, gender, color or race of the child, or the race of a parent of the child, about which I posted on February 9.

And virtually all of the conscience protection bills introduced in reaction to the Obamacare mandates enable a private right of action. The bill drawing the most attention, sponsored by Sen. Roy Blunt and titled the "Respect the Rights of Conscious" amendment to the Senate highway bill, established a private right of action (by any "persons or entities protected") to assert a violation of this section as a claim in a civil suit. The "persons protected" could have been anyone from a provider of a health care insurance plan to a beneficiary. That amendment was not approved by the Senate.

I have no personal objection to Congress creating private rights of action for any of these causes. The Founding Fathers believed in open courtrooms for all Americans to defend their God-given rights. But it's hypocritical to do so in these instances, and then turn right around to deny access to the courtroom for someone injured through medical malpractice.

Why should doctors and hospitals be granted special protection in federal law when states and municipalities are told they might have to pay damages for violating our civil rights?

Tea Party Nation founder Judson Phillips slams H.R. 5 in a post on the TPN website and a newsletter sent today to TPN members and newsletter subscribers. Says Phillips in his newsletter:

The 10th Amendment does not say that the powers granted to the states can be usurped simply because the right party is in power.

The most recent instance on selective 10th Amendment interpretation is occurring around the IPAB repeal bill. The IPAB is the Independent Payment Advisory Board, or as it is also known, the death panel.

The IPAB repeal ought to be fairly simple. Even some Democrats are on board with it. The Republican leadership decided to play stupid political tricks and attach the Medical Malpractice bill to the IPAB repeal bill.

Whether you think tort reform is a good idea or not, it is an issue that belongs to the states, not to the federal government. Tort law has always been governed by the states.

The 10th Amendment means what it says. It is not a campaign slogan that we throw out when it is convenient and ignore the rest of the time. The 10th Amendment is one of the best defenses we have against tyranny.

We supported Republicans in 2010 because we believed them. We did not elect them because we thought they were hypocrites.

We in the Tea Party do not insist in ideological purity but we insist that the candidates we support, support the Constitution. That means all of it.

Not just the parts we find convenient.

Multiple House Republicans will co-sponsor an amendment to strip the tort reform language from the combined bill and leave the good IPAB repeal language. They need to know that real conservatives out there support them!

One of the ways in which attorneys general protect the integrity of state laws and constitutions is by carefully reviewing the actions of the federal government and responding when they break the law or overstep the bounds of the Constitution.

Federalism is the division of authority between the federal and state governments that the Founding Fathers created to provide a check on federal power so that the federal government would not become destructive of the very liberty it was instituted to protect.

So states a press release on the website of the Republican Attorneys General Association. That's a great statement of the mission of state Attorneys General, and state AGs of both parties have often backed that statement up with real action to defend states' and individual rights from attack by Uncle Sam.

But thus far, we've heard nothing from state AGs about the intention of House Republican leaders, announced from behind closed doors without consultation with the AGs, to force a vote on a sweeping federal takeover of state courts and their jurisdiction over health care-related lawsuits. The leaders are forcing House Republicans to vote for that bill, H.R. 5, and making it difficult to oppose by combining it with the popular bill to repeal part of unconstitutional Obamacare, the section creating the IPAB "death panels." House Republican leaders then made it very difficult to amend the bill by setting an amendment deadline of 3 pm ET Monday, a time when most House Republicans will still be out of town.

Numerous states' rights advocates have spoken out against H.R. 5, recently an in the past year. Last week, the National Conference of State Legislators, constitutional scholars Rob Natelson and Ilya Somin, and Tea Party leader Judson Phillips again criticized the bill, reiterating previous denunciations of H.R. 5, or federal tort reform laws in general, by them and by Profs. Randy Barnett and John Baker; Sens. Tom Coburn and Mike Lee; and other conservatives and libertarians,

So it will be up to state AGs to take a stand for their states, and call attention to this overreach in federal power. Virginia AG Ken Cuccinelli sharply condemned the Senate version of H.R. 5 last fall but has been strangely silent thus far.

There's not much time left for House Republicans to hear from the self-proclaimed guardians of state constitutions and of states' and individual rights.

It's a stunning betrayal of all those hardworking, pro-Constitution Americans who gave U.S. House Republicans their majority.

That's how Rob Natelson, premier constitutional scholar and past Republican candidate, yesterday described the plan concocted by House GOP leaders to force House Republicans to vote for either a bill crushing states' rights or to affirm a key section of the equally unconstitutional Obamacare health care law. After the House adjourned last week, Speaker Boehner and Majority Leader Cantor announced that they would push Members to vote for H.R. 5, a bill mandating sweeping a federal takeover of all medical malpractice lawsuits. That bill has been on the shelf for months, thanks to strong conservative opposition. So to make it extremely difficult for GOP Congressmen to oppose it now, Boehner and Cantor attached a very attractive Obamacare repeal bill to H.R. 5. The result is the Hobbesian choice as described succinctly by Rob Natelson: If Republicans vote "aye," they get unconstitutional tort reform. If they vote "no," then they're retaining an unconstitutional part of Obamacare.

Mr. Natelson, a former law professor at the University of Montana, has made a national reputation in constitutional scholarship for identifying the early writings and letters of the Founding Fathers. He has been warning Republicans to avoid H.R. 5 for almost a year. Once again, he takes dead aim at it on the Tenth Amendment Center website:

Although promoted as "medical malpractice reform," the measure is actually a big step toward federal control of state court systems. Essentially, it's a lengthy set of mandates telling state and federal judges how to run their own courts whenever they deal with any health-care-related personal injury cases... This measure tells state judges and legislatures what damages they can allow, when they can allow them, how to instruct their juries, what the time period for bringing suit must be, etc. etc. One section beginning with the words "The provisions governing health care lawsuits set forth in this title preempt . . . State law" is given the Orwellian title, "State Flexibility and Protection of States' Rights."

Mr. Natelson's new blast at the plan to push H.R. 5 was joined yesterday by Prof. Ilya Somin of the George Mason Law School, who criticized House leaders on the legal blog, "Volokh Conspiracy."

"It is indeed true that I have argued that federally mandated tort reform is both constitutionally suspect and largely unnecessary, because interjurisdictional competition gives states strong incentives to reign in their tort lawsuits on their own, as many have already done. House Republicans' support for federal tort reform calls into question the genuineness of the GOP's commitment to respecting constitutional limits on federal power."

Mr. Natelson also slams the hypocrisy of the House GOP leaders for basing their plan to take over state courts on the same constitutional justification as Obamacare:

"How do its sponsors justify this under the Constitution? The same way the national health care zealots justify Obamacare: The Constitution gives Congress power to regulate interstate commerce, so Congress may regulate everything that "affects" commerce, presumably including breathing. Of course, this justification is bogus. When the Constitution was being debated, its supporters emphasized that personal injury law within state boundaries would be a state concern. And although the modern Supreme Court has smudged constitutional boundaries a good deal, it has never authorized congressional micro-meddling of state judicial systems. On the contrary, the Supreme Court has ruled repeatedly that states and state courts are constitutionally free of most federal 'commandeering.'

These two respected conservative scholars join the National Conference of State Legislators in opposing H.R. 5.

NOTE: In his post, Prof. Somin comments on my characterization of his positions in my post yesterday about Ted Frank's and Walter Olson's positions on H.R. 5. I certainly did not intend to refer incorrectly to Prof. Somin and have amended that post accordingly.

The National Conference of State Legislators (NCSL), the bipartisan group of state legislators in all 50 states, today announced its continued strong opposition to H.R. 5, the bill to establish federal limits on awards in medical malpractice lawsuits, and to House leadership's plans to force a floor vote on the bill early next week. In a letter to Speaker Boehner and Minority Leader Pelosi, NCSL leaders said that it opposes attaching HR 5 to any piece of legislation and opposes the "one-size-fits-all" approach enacted in the bill. "Medical malpractice, product liability and other areas of tort reform are areas of law that are regulated by the states."

You can download the letter here.

I've traded Tweets this morning with Ted Frank of the Manhattan Institute and is a leading critic of civil litigation, about his position on H.R. 5, the bill mandating limits on awards in medical malpractice lawsuits. With House leadership intent on forcing a floor vote on H.R. 5 next week, I want to remind everyone what Mr. Frank and Walter Olson, another esteemed member of the anti-civil litigation movement, wrote last year about H.R. 5.

On May 22 of last year, Prof. Ilya Somin of George Mason Law School, a noted libertarian and anti-Obamacare scholar, concurred with Prof. Randy Barnett's view that H.R. 5 is an unconstitutional infringement on states' rights and inconsistent with Republican opposition to Obamacare. "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." (CORRECTION, March 15: Prof. Somin is a libertarian and has never been in the "anti-trial lawyer" camp and I apologize for any confusion. I include his views in this post to establish the timeline.)

The next day, Ted Frank wrote his concurrence with that view. 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."

That day, Walter Olson wrote on his agreement with Randy Barnett. 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..."

I'm not taking anyone's words out of context. I truly respect Messrs. Frank and Olson for their views, even as I disagree with them. I'm just quoting two of the bright shining lights in the "tort reform" movement. each of whom are clearly opposed to H.R. 5 in its current form. House leadership should take note.

UPDATE: As I was posting the above, Mr. Frank wrote a new post on H.R. 5 on his blog (which I recommend to anyone interested in legal policy), and I'll quote in full below:

"HR 5, federal regulation of medical malpractice litigation, represents good public policy that would reduce abusive lawsuits and improve health outcomes. But since it would transfer wealth away from lawyers to patients and doctors, the litigation lobby has actively opposed it, and quoted me out of context in that regard. One would certainly prefer that HR 5 be tweaked to unambiguously comply with a vision of the Commerce Clause consistent with, say, the Randy Barnett view. It would be painless to do so. For example, one could structure the legislation to withhold 25% of Medicare funds from states that fail to meet certain medical malpractice litigation standards, rather than federalizing what is (unlike, say, product liability or consumer class actions) largely a local issue: the end result would be even better than this bill. And states that have already implemented reform might be legitimately offended that the benefits of their foresight will be blunted when Congress shunts competing states along; one solution to that might be to limit the reforms to patients who use federally-subsidized medicine, such as Medicare, Medicaid, or PPACA exchanges. But given trial lawyer support for an administration that has propounded PPACA, the trial lawyer opposition to this bill on Commerce Clause grounds is totally disingenuous. Let's see the trial bar lobby for repeal of PPACA, and then they can legitimately complain about HR 5's federalism issues. (Of course, as a political matter, this is largely counting angels on the heads of pins: Harry Reid will never permit this to come to a vote in the Senate, and even if it passed the Senate, Barack Obama would veto this on behalf of his trial-lawyer friends.)"

Four points in response: First, Mr. Frank is still clearly uncomfortable with H.R. 5 in its current form. Second, I wouldn't consider the changes that he proposes to be mere "tweaks," and I'll bet the bill's sponsors and supporters wouldn't either. Third, the trial lawyers' lobby (my clients) didn't lobby for the enactment of Obamacare and supports principled conservatives in the Republican Party every day, and my longtime readers know that I HATE OBAMACARE, mostly because it's as unconstitutional as H.R. 5. Fourth, a House bill's chances in the Senate are irrelevant; something like 90% of House-passed bills never get a Senate floor vote. That's no reason for the House to pass an unconstitutional bill.

I appreciate Mr. Frank's post and will update this post accordingly.

For months, it appeared that House Republicans had largely agreed with conservatives and libertarians such as Virginia Attorney General Ken Cuccinelli; Randy Barnett; Senators Tom Coburn and Mike Lee; Tea Party movement leaders such as Judson Phillips and numerous House Republicans that federal tort reform bills violate the states' rights under the 10th Amendment to run their own legal systems without federal interference. There has been no floor action on H.R. 5, a bill mandating federal limits on awards in medical malpractice lawsuits and the subject of numerous posts on this website.

But last Friday, after the House adjourned for ten days, House Republican leadership reportedly decided to attach H.R. 5 to the bipartisan bill repealing the Independent Payment Advisory Panel (IPAB), a key staple of ObamaCare, with a floor vote as early as next week. Here's a reminder of the lineup against H.R. 5: Prof. Randy Barnett stands against both ObamaCare and federal tort reform, referring to pro-H.R. 5 Republicans as fair-weather federalists and FINOs ("Federalists In Name Only"). Prof. John Baker, a Federalist Society superstar, wrote last year that a vote for H.R. 5 would weaken the anti-ObamaCare legal argument before the Supreme Court. And Virginia Attorney General Ken Cuccinelli promised to sue against a federal tort reform bill even quicker than he sued against ObamaCare. Sen. Tom Coburn has told me personally that if the federal government is going to take over state tort law, there's no reason to even have states, and he opposed federal tort reform in an interview last year. Sen. Mike Lee refused to vote for the Senate Republican jobs bill precisely because it included a version of H.R. 5. State legislators warned Congress last year against mandating federal medmal limits. Other conservative politicians and leading intellectuals against H.R. 5 include Reps. Ron Paul, Ted Poe, John Duncan, Lee Terry, and Morgan Griffith; and Walter Olson, Ted Frank, Rob Natelson, Carrie Severino and Ilya Somin.

The upper echelon of conservative and libertarian legal theorists know that neither tort law nor health care are enumerated powers for the federal government in the Constitution. The pro-medmal law crowd abuses the Commerce Clause, as well as the Necessary and Proper Clause, as much as ObamaCare proponents. Yet House Republican leadership unilaterally decided, behind closed doors in the oak-panelled, leather-appointed chambers of the Capitol, to blast away at states' and individual rights. This cannot stand. Real constitutional conservatives should contact their Representatives immediately and oppose this assault on the Constitution and the Bill of Rights.

The drive to enact a bill to use Iran's funds frozen in a U.S. account to pay the families of U.S. victims of Iranian terrorism picked up a key endorsement yesterday. Judson Phillips, founder of Tea Party Nation, endorsed HR 4070, sponsored by Rep. Bob Turner (R-NY) and co-sponsored by a bipartisan group of Congressmen. In his endorsement, posted on the TPN website and his personal website, Judson wrote,

Taking this money away from Iran and making certain it cannot be used to advance terrorism is a great idea. Giving that money to the Americans who have been the victim's of Iran's terrorism is not just justice it is payback.

If Congress does not act, the order freezing the Iranian funds could be lifted. Can you imagine the celebration in Tehran if they get their money back? Just on general principles does anyone doubt Iran would not use some of this money for terrorism?

Judson Phillips recognizes that taking Iran's money to pay the families of our brave servicemen killed by Iran in the 1983 Beirut Marines barracks and 1996 Khobar Towers bombings is the right thing to do and smart policy. Those families exercised their God-given right to take their claims against Iran to federal court and obtained judgments against iran which can and should be satisfied by releasing Iran's funds in the account to them. Hopefully Judson's endorsement will lead to additional support for the bill in the U.S. House and eventual enactment of the provisions by the entire Congress.

This week the House of Representatives approved a resolution condemning the Government of Iran for its continued persecution, imprisonment, and sentencing of Pastor Youcef Nadarkhani. That's great, and that's important. But if Congressmen REALLY want to hurt Iran, they should support and approve the bill numbered H.R. 4070 and sponsored by Rep. Bob Turner (R-NY). That's the ONLY bill that actually takes Iran's money to compensate the families of our brave servicemen killed and wounded in Iran's terrorist attacks in the 1983 Beirut Marine and 1996 Khobar Towers bombings. The bill helps those families to satisfy federal court judgments against Iran with $1.8 billion of Iranian central bank funds in an account in a NYC bank, attached by the families' attorneys. Absent this legislation, Iran might break the attachment and reclaim its funds, then use them to finance more terrorism and nuclear proliferation. The bill is starting to pick up co-sponsors at a steady clip, but needs more to show Iran that House members won't hesitate to support Americans killed or maimed by Iranian terrorism. The language in this bill is NOT in the Iran sanctions bill passed by the House in December, but it is similar to the Senate version of the Iran sanctions bill, approved unanimously on February 2 by the Senate Banking Committee. Read more about the bill and the Beirut Marine long families' quest for justice on their press release. I'm proud to work alongside the Beirut Marine families and look forward to the day when Iran's money is in their hands and not in Ahmadinejad's.

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