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.