Federal Tort Reform Ideas Lost in Obamacare Decision

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In the Obamacare decision on Thursday, the five conservative Supreme Court Justices rejected the unlimited scope of the Commerce Clause and the Necessary & Proper Clause envisioned by proponents of federal tort reform bills (especially caps on damages in medical malpractice lawsuits). Justice Roberts was especially deferential to federalism, employing the terms "state sovereignty" and "enumerated powers" often in his decision. Proponents of federal tort reform are among the big losers in the Obamacare decision.

Moreover, the majority adopted the framework for decisions on both clauses as proposed in amici briefs or articles by numerous anti-Obamacare legal experts, such as Profs. Randy Barnett and Ilya Somin; Virginia AG Ken Cuccinelli; Rob Natelson of the Independence Institute and Tenth Amendment Center; Prof. John Baker of LSU and Catholic University Law Schools; Carrie Severino of the Judicial Crisis Network; and Senator Mike Lee.

Each of the conservative and libertarian legal experts cited above are anti-Obamacare AND anti-federal tort reform. They know that Obamacare and federal tort reform, especially H.R. 5, the bill to cap medmal damages, are the "Wickard Twins," equally based on the 1942 Wickard v Filburn decision by the Supreme Court. The decision, cited numerous times in the Obamacare decision by all of the Justices, led to the explosion in the scope of the Commerce Clause that finally ended with the Obamacare ruling.

And other legal experts, particularly Rob Natelson, have written frequently that the Necessary & Proper Clause doesn't create additional powers for Congress; it enables Congress to exercise those powers which are merely "incidental" to Congress's enumerated powers. The conservative majority adopted that view in toto, thus further limiting the constitutional basis for federal laws designed to take over state tort law and courtrooms.

So any Congressman or Senator looking for support from Randy Barnett, or any of the other experts cited above, for federal tort reform is in for a rude awakening. They've already warned Republican leaders that federal tort reform, especially medmal caps, are just as unconstitutional as Obamacare, for the same reasons. Those leaders just don't want to listen.

Here are illustrative quotes in Justice Roberts' rulings on the Commerce Clause and the Necessary & Proper Clause, equally applicable to any federal scheme to take over state tort law:

"State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power." New York v. United States, 505 U. S. 144, 181 (1992). Because the police power is controlled by 50 different States instead of one national sovereign, the facets of governing that touch on citizens' daily lives are normally administered by smaller governments closer to the governed. The Framers thus ensured that powers which "in the ordinary course of affairs, concern the lives, liberties, and properties of the people" were held by governments more local and more accountable than a distant federal bureaucracy. The Federalist No. 45, at 293(J. Madison).."

"The Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer."

"The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States."

"Applying these principles, the individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power...The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power... Rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it."

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This page contains a single entry by Andrew Cochran published on June 29, 2012 3:23 PM.

Tea Party Leader: Federal Tort Reform Kills State Sovereignty was the previous entry in this blog.

Mitt Romney: Ignorant Conservative or Hypocritical? is the next entry in this blog.

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