UPDATE, June 28: Great news on this one: the two most ardent supporters of unconstitutional federal medmal limits, Sen. Barrasso and Rep. Price, dropped out, replaced by Tevi Troy of the Hudson Institute. Read his bio here. I don't know his position on federal medmal bills, but he has to be an improvement. Here's the original post:
Every group in Washington with a stake in the upcoming Obamacare decision is planning a panel or session while it's announced, and the American Enterprise Institute is no exception. But I fear that the its panel might be stacked in favor of supporting unconstitutional federal caps on awards in medical malpractice lawsuits. Here are the advertised participants:
Sen.John Barrasso, Chairman of U.S. Senate Republican Policy Committee (R-Wyo.)
Karlyn Bowman, AEI
James C. Capretta, AEI and Ethics and Public Policy Center
Thomas M. Christina, Ogletree Deakins
Thomas P. Miller, AEI
Rep. Tom Price, Chairman of U.S. House Republican Policy Committee (R-Ga.)
Sen. Barrasso and Rep. Price are doctors and vociferous supporters of federal medmal limits, and have never paid any attention to the constitutional arguments against such a federal law. They've repeatedly ignored the warnings and opinions of Prof. Randy Barnett; VA Attorney General Ken Cuccinelli; other conservative legal superstars such as Carrie Severino, Hans von Spakovsky, Rob Natelson and John Baker; and Republican Members of Congress such as Reps. Ted Poe and Louie Gohmert and Sens. Tom Coburn and Mike Lee. Drs. Barrasso and Price can't cite any current constitutional scholarship for federal medmal limits; they just want to ram it into law in a political power play.
Thomas Christina is a corporate lawyer who has opposed Obamacare in court and in his writings - nothing wrong with that, I'm also opposed - but I find no indication that he understands that Obamacare and federal tort reform are equal "Wickard twins," arising from the expansion of the Commerce Claus after the Wickard v. Filburn decision. Plenty of Republican corporate lawyers oppose Obamacare, then turn right around and fight for federal medmal limits, either not realizing or not caring that tort law is no more an object of federal power under the Constitution than health care. I hope I'm wrong about Mr. Christina.
Ms. Bowman is a renowned expert on public opinion and a top-flight pollster, but she's not an expert in this field.
Messrs. Capretta and Miller offer some hope for balance. I've personally known Jim Capretta for almost 20 years, have discussed these issues with him, and have seen his writings evolve towards a more consistent approach towards federalism. I worked with Tom Miller on several issues while I was Senior Oversight Counsel to the House Financial Services Committee, and he's a consistent federalist. The health care plan plan described in April by Miller, Capretta, and Grace-Marie Turner honors federalist principles by not recommending federal limits on medmal awards.
But no one on the panel has actively worked with constitutional conservatives and Tea Party leaders who know that federal medmal caps are as violative as states' and individual rights as Obamacare, and for the same reasons. Rep. Price is the featured speaker, and he pushes federal medmal limits at every opportunity. Sen. Barasso spoke for caps on the Senate floor last fall when Senate Republican leaders pushed caps as part of a jobs plan. I know from experience that Members of Congress dominate panels such as these, and I suspect that protestations over the unconstitutionality of federal medmal caps will get short shrift. Instead, the AEI panel will be another opportunity to push federal tort reform on an audience of conservative listeners.