Recently in Current legislation Category

Like many of you, I come from a family in which someone has proudly served our country in war, so I take veterans' health and civil justice issues very seriously. On Memorial Day, we'll honor vets in our families and across the country with parades, special ceremonies and prayers in thanksgiving for their sacrifice. So it really bothers me when I see Congress and state legislatures across the country dishonor veterans by diluting their right to compensation for injuries endured while serving, or by compromising their medical privacy. Yet that's what's happening in Washington and across the country to the veterans who suffer from asbestos-induced disease such as mesothelioma. Veterans groups are just now beginning to realize the potentially lethal result, and they're getting organized in opposition.

The asbestos issue is important to veterans because although they comprise only 8% of the US population, they account for nearly 30% of all mesothelioma deaths nationally. If you served in the U.S. Navy before the mid-1970's, you were likely exposed to asbestos aboard a ship. During and after World War II, asbestos use in Navy ships and other armed forces applications greatly expanded as the asbestos manufacturing companies began producing more products and infrastructure for the U.S. Navy and the building of its ships. This caused hundreds of thousands of workers and sailors to be unknowingly exposed to dangerous asbestos dust in the cutting and manipulation of insulation products. As a result, many of those men and women contracted an asbestos-related disease decades later.

As early as the 1950's, the asbestos industry knew asbestos exposure was killing workers and their families and failed to issue warnings or proper protection. In 1994 Congress recognized the enormous damage caused by asbestos and enabled the creation of privately funded trusts, funded by the asbestos companies, for the benefit of asbestos victims now and into the future. But the asbestos industry continues to fight to minimize their liability, with the ultimate goal of avoiding accountability until the victim dies, leaving grieving families and taxpayers with astronomical medical bills, and decreasing compensation to victims.

In Congress and in state legislatures, the asbestos industry and those who generally want to limit our 7th Amendment rights are pushing bills to delay compensation or raise legal barriers to full payment. On Tuesday, the House Judiciary Committee approved the so-called "Furthering Asbestos Claim Transparency (FACT) Act of 2013," while in states such as Wisconsin, FACT Act-like bills are being enacted or considered. Veterans are waking up to the possibility that they might suffer as a result.

The FACT Act would do three things not currently required: 1) it would require the trusts to publicly disclose extensive, individual and personal claim information; 2) it would allow asbestos defendants to demand any additional information from the trusts at any time and for virtually any reason; and 3) it would apply retroactively to the initial creation of the trust, forcing the trusts to look back to every claim ever filed and paid. Under the bill, many victims could die before their case resolves.

The FACT Act violates federalism principles by overriding state tort law and state law governing the release of personally identifiable information, while hypocritically allowing defendants to maintain confidentiality. Veterans could face the public disclosure of their private work history, asbestos exposure information, the last four digits of of their Social Security numbers, and even the personal information of their children. They've done nothing to deserve their private information being splashed all over the Internet! Sadly, proposals by Reps. Bobby Scott and Hank Johnson to protect veterans' claims and their medical privacy from the FACT Act were rejected by the Republican majority. Rep. Ted Poe of Texas was the only Republican to vote with veterans by opposing the bill.

In Wisconsin, a bill similar to the FACT Act was introduced in the Wisconsin State Legislature due to pressure from asbestos companies. Wisconsin is home to a high number of asbestos-diseased vets; from 1999 to 2005, the state ranked 14th in the nation in the number of mesothelioma and asbestos-related deaths.

Wisconsin veterans' groups are up in arms about the bill. The state chapters of the Military Order of the Purple Heart, the Veterans of Foreign Wars and the American Legion all came out in strong opposition. Nevertheless, the bill continues to proceed towards enactment, with proposals to protect veterans defeated there.

The national headquarters of these organizations are aware of the FACT Act, but haven't yet weighed in publicly to warn Congress against delaying the right to compensation or compromising medical privacy. This Memorial Day, let's honor our veterans by calling the MOPH, VFW and American Legion to urge them to oppose these bills nationwide, and let's tell Congress to keep their hands off our veterans' injury claims and privacy.

Every day, American consumers are vulnerable to injury or death from dangerous foreign products manufactured abroad. We've read and seen numerous stories about poisonous drywall and toys manufactured overseas, with no compliance with our consumer products standards. While U.S. manufacturers must comply with our laws, safety regulations, and judicial system, foreign manufacturers can skimp on safety in order to rush a product to market, knowing there is little to no threat of legal recourse for an unsafe product sold in the United States.

American businesses have an incentive to produce quality goods because they will be held liable by our civil justice system. Foreign companies, on the other hand, have no such incentive because it is often difficult or impossible to subject them to the jurisdiction of U.S. courts. These manufacturers are able to avoid accountability to U.S. consumers while continuing to line their pockets with profits and export billions of dollars worth of merchandise to all 50 states.

Foreign manufacturers should have to play by the same rules as American manufacturers and not be able to escape responsibility because they are beyond the reach of our judicial system. There's a new push by Congress to change the status quo and hold foreign manufacturers accountable.

The "Foreign Manufacturers Legal Accountability Act" was introduced today by Congressmen Matt Cartwright (D-PA) and Mike Turner (R-OH), with Rep. Walter Jones (R-NC) as an original cosponsor. This bill is similar to bills introduced in previous sessions, and I hope a bipartisan majority of Congressmen and Senators support it.

The bill would make it easier for an injured consumer to serve the foreign manufacturer with notice of pending claims, so the consumer can proceed with a lawsuit. Foreign manufacturers or producers of covered products would be required to register an agent, located in a state where the company does business, who would be able to accept service of process for civil and regulatory claims. By registering the agent, the foreign manufacturer or producer also consents to state and federal jurisdiction for civil and regulatory claims. Covered products include drugs, devices, cosmetics, biological products, consumer products, chemical substances, and pesticides manufactured or produced outside of the United States.

The bill is good for U.S. businesses and consumers. Our companies should not be forced to unfairly compete against foreign businesses that can easily skirt the law. As in the case of toxic drywall, U.S. businesses also end up shouldering monetary losses when they cannot hold foreign suppliers accountable for dangerous products. The bill would make it easier for U.S. consumers injured in the United States to hold foreign manufacturers accountable for the injuries they cause. Why should a consumer have to travel to China to serve the defendant when the defendant does business in the U.S. and has an agent-importer located here? Why should Chinese law apply to a U.S. consumer injured in their own home?

The "Foreign Manufacturers Legal Accountability Act" addresses those problems.km Call your Congressman and ask him to support the bill.

The Constitution & Civil Justice subcommittee of the House Judiciary Committee held a hearing today on a proposed Constitutional amendment to give victims of crime additional rights during and after the prosecution of the criminal. Some states allow the victims to participate in the sentencing or plea settlement process or in other ways, and some do not in any part of criminal proceedings. The bipartisan "Victims' Rights Amendment," or VRA, was first proposed by President Reagan and has been championed by Members of both parties in Congress and Presidents of both parties.

One of the provisions in the VRA would entitle victims of crime "to restitution." That's great - I'm all for it - with no argument at all. But Committee Members should remember that the Founding Fathers already recognized that right by fashioning a civil justice system based in the God-given right to have civil claims heard before a local jury. The 7th Amendment was the only amendment in the Bill of Rights unanimously adopted by all of the original states. It reflects the centuries-old recognition of the right to civil jury trials in British law, back to the Magna Carta in 1215, and the Biblical recognition of that right in various texts in the Old Testament. The Founders described that right as "sacred" and "a valuable safeguard to liberty."

Many victims of crime have, over the decades, exercised that right to pursue the assets of the criminal after the prosecution is completed. The successful civil suit against O.J. Simpson by the family of Ronald Goldman, who was killed in the attack, comes to mind.

And American victims of terrorism have had the specific right, added to federal law in the 1990s, to pursue restitution against state sponsors of terrorism. I've assisted victims of the 9-11 attacks, Qaddafi s reign of terror, and Iran-sponsored terrorism to obtain a measure of justice through legislation and administrative action. Last year, Congress enacted a special section in an Iran sanctions act to enable several groups of American victims to enforce a judgment against Iran in federal court. Recently, the first judicial ruling after that bill's enactment was favorable to the victims, a promising development.

Members of Congress should remember that Founding Fathers didn't consider the right to restitution to be exclusive to victims of crime or of any other specific act. They created ONE civil justice system, grounded in the unalienable right to a civil jury trial, for civil claims of all types and all origins. Victims of medical malpractice and product liability have an equal right in the eyes of God to seek restitution as victims of crime and international terrorism, and Congress shouldn't seek to abridge those rights through "tort reform" or artificial caps on civil damages. Congress should spend its energy upholding 7th Amendment rights for all Americans in all circumstances.

Some Members of Congress continued to pursue federal medical liability limits this spring, notably Republican leadership in both houses; Reps. Paul Ryan, Marsha Blackburn and Renee Ellmers; and Sen. Rob. Portman. They ignore the warnings from experts in constitutional law cited often by Republicans, such as Prof. Randy Barnett, Virginia AG Ken Cuccinelli, Prof. Ilya Somin, Rob Natelson, Ted Frank and Walter Olson. The protestations of states' rights advocates such as the National Council of State Legislators; Sens. Tom Coburn and Mike Lee; Reps. Ted Poe and Louis Gohmert; and the leaders of Tea Party Patriots and Tea Party Nation go ignored. Republican experts on health care policy, such as Tom Miller, Jim Capretta and Avik Roy, advised Republicans to pursue measures other than liability limits to improve health care quality or reduce the cost, but the Republicans named above ignored that advice.

All these experts and 10th Amendment advocates have opined that a federal medical liability limit is an excessive use of federal power and now has little chance of surviving scrutiny by the Supreme Court under its rulings on the Commerce Clause and the Necessary & Proper Clause in the Obamacare decision. Nevertheless, Republican House and Senate leaders forced a medical liability limit provision into their budget plans, and did so without committee debate.

A better name for any federal medical liability limit would be the "Dr. Gosnell & Abortion Butchers Civil Protection Act." Almost every such proposal would have the impact of protecting abortion butchers like Dr. Gosnell, now on trial for murder in Philadelphia, from full accountability before a local jury.

Medical malpractice suits brought by families against other abortion butchers, as well as against other dangerously incompetent doctors and medical professionals, could be severely limited in impact, and the Gosnells of America would be allowed to keep much of the "blood money," if federal limits are imposed. Most medical liability limit proposals would sharply limit non-economic and punitive damages, so butchers such as Gosnell wouldn't feel the full sting of a jury verdict on his assets. And they even protect doctors who commit intentional torts, such as sexual abuse! All this is lost on the politicians who ignorantly repeat whatever the medical lobbies put in front of them.

For John Boehner, Rob Portman and Paul Ryan, medical liability limits are an article of faith to beat trial lawyers over the head. Even though these Republicans are vocally protective of the right to life, they don't stop to think that liability limits are a blank check for butchers like Gosnell.

But I'm really surprised that Republican women in Congress, such as Reps. Blackburn and Ellmers, so thoughtlessly ignore the impact of federal liability limits on women's health. Didn't they read the horrific accounts of the deaths of the born babies and 41-year-old Karnamaya Mongar, who died at Gosnell's hands? Don't they realize the danger of their insensitivity? Why don't they see the value of the civil justice system that the Founders designed, grounded in the 7th Amendment right to a civil jury trial, as a means of punishing dangerously negligent doctors?

If Republican women politicians and their leaders want to avoid being accused of waging a "war on women," they should start by ensuring that deadly doctors, hospitals, nursing homes, and drugs and devices don't receive legal protection from civil liability in federal law.

Here we go again. Today the House Permanent Select Committee on Intelligence voted to recommend H.R. 624, the "Cyber Intelligence Sharing and Protection Act of 2013," or CISPA, to the entire House for approval. The bill supposedly enables only a "sharing" of "anonymous cyber threat information between the government and the private sector so they can protect their networks and their customers' private information." But it's basically the same bill as last year's, when groups from all points of view, from Tea Party groups to the ACLU, objected to the lack of protection for personally identifiable information and other violations of our internet privacy.

The Electronic Frontier Foundation recently released a laundry list of problems with the bill. Here are the highlights:

(1) The bill supposedly limits exposure to only "cyber threat information." But the definition of that term doesn't exclude personally identifiable information. Social Security numbers are "cyber threat information" in the wrong hands. Private emails are too - is that what you want your cable company to turn over to the Feds? If you tell your relatives that Obama is a socialist, will Comcast or Verizon turn it over to the FBI? You up for that?

(2) The bill doesn't define "cybersecurity systems" either. Companies can use a "cybersecurity system" to "identify or obtain" information about a potential threat, but the term isn't limited to security software or intrusion systems; the term "system" is never defined. No privacy protection there.

(3) CISPA encourages companies to conduct their own surveillance on their networks and turn over whatever they deem "cyber threat information" to the government, with a promise of total immunity from civil or criminal lawsuits. So it strips the utilities, internet and telecom companies of any accountability and allows them to create a private spying program. CISPA strips us of our constitutional right to hold those companies accountable for turning over our personal information, whether by design or error.

House GOP leaders went through this exercise last year, only to find The People standing in the way. But they haven't learned. They're about to let the same wild-and-crazy gun-control liberals, like Obama, Pelosi and Dianne Feinstein, effective control over our private data and emails. DiFi has her own CISPA ready to go. WHAT ARE BOEHNER AND CANTOR THINKING?

Tell your Congressman and Senator NO, TODAY, and that YOU will personally hold THEM accountable for messing with our internet and our privacy. Tell them to give up on this year's version of CISPA.

Here's why real conservatives should oppose the Ryan budget:

1. It maintains the federal leviathan working to control our lives. FACTS: The Ryan budget won't result in the single closure of any sizable federal agency and explicitly avoids layoffs of federal workers. As Roll Call newspaper put it, "Ryan's budget eliminates the deficit in 2023 not because of large new spending cuts relative to his past budgets, but because he's keeping hundreds of billions of dollars a year of President Barack Obama's own budget policies in place." There's nothing "conservative" about using Obama's phony budgeting.

2. The Ryan budget also maintains the Obamacare and fiscal cliff taxes needed to fund Big Uncle Sam. Again, quoting Roll Call, "Ryan's budget also would not balance without the $600 billion-plus increase in taxes extracted by the president in the fiscal cliff deal." What's "conservative" about backing Obama's tax increase?

3. The result of the Ryan spending and tax decisions is that he sacrifices the conservative principle of reducing the role of the federal government for a goal of a balanced budget, which is a numbers exercise (albeit an important one). And that is exactly what happened in the Reagan budgets (I was there) and during the Gingrich era in the 1990s, when we achieved a budget surplus but didn't get Big Uncle Sam out of our lives. Is that what conservatives want?

4. The Ryan budget violates the 10th Amendment and restricts the 7th Amendment right to civil jury trials. It unconstitutionally crushes each state's right to maintain its own civil justice system, by mandating federal limits on damages available in healthcare-related lawsuits. The plan ignores the opinions of the most respected Republican-side and libertarian legal experts and officials who have repeatedly written that Congress has no authority to enact federal caps on medical malpractice lawsuits, especially under the majority opinion in the Supreme Court's Obamacare opinion. These experts include Prof. Randy Barnett; Virginia AG Ken Cuccinelli; legal experts Rob Natelson, John Baker and Carrie Severino; and Reps. Ted Poe, Louie Gohmert and Lee Terry, and Senators Tom Coburn and Mike Lee. The National Conference of State Legislators has always protested federal caps as a violation of the states' right to operate their civil justice systems without federal interference. Tea party leaders such as Judson Phillips and the Tea Party Patriots criticized the passage of caps by the Republican House in the last session of Congress.

5. The same caps do nothing to raise the quality of health care in the U.S., which is why Republican-side healthcare experts don't support federal caps on such lawsuits (e.g., Avik Roy, Jim Capretta and Tom Miller). A recent study by respected academics punctures five myths of medical malpractice, but these realities are ignored by Rep. Ryan and House leadership.

6. The combination of the continued federal presence in the regulatory agencies and the proposed civil immunity for the entire medical community, from doctors to insurance companies to nursing homes, make the Ryan budget a perfect vehicle for Crony Capitalism. Federal bureaucrats will feel free to preempt state laws and restrict individual freedom in all types of settings. There's no effective "STOP" sign on Uncle Sam in the Ryan budget.

Conservatives and Tea Partiers should oppose the Ryan budget. It doesn't promote the conservative vision of a reduced role for the federal government in our lives. It continues to "feed the beast." It infringes on states' and individual rights. It's not a conservative or Tea Party manifesto and should not excite or inspire any conservative, Tea Partier or libertarian. It doesn't project the Founding Fathers' vision for the nation or for a limited government. There's no reason to spill any political blood over it.

Yesterday was the 102nd birthday of Ronald Reagan, the greatest President of my lifetime, to whom I owe personal and professional thanks for my marriage (to one of his White House secretaries) and my Washington career (beginning as a Reagan Administration political appointee). His personally autographed photo congratulating us on our marriage is one of our most cherished possessions.

Almost two years ago, I researched all of his speeches and writings available on the internet to determine whether he would be considered a "constitutional conservative" by today's standards, meaning fidelity to the Bill of Rights, or whether he would stand with today's "Crony Capitalists" who lobby in Washington for special protection in federal law through the preemption of state law or, worse yet, immunity through federal tort reform. Too many politicians who pass themselves off as constitutional conservatives ditch the 7th Amendment right to civil jury trials and side with Crony Capitalists to protect companies they represent.

I then wrote a special post titled, "What Ronald Reagan REALLY Said About Tort Reform," which I re-posted in January of last year. The conclusion of my research is crystal clear.

Ronald Reagan was never for federal tort reform. He never proposed a federal tort reform bill in his State of the Union speeches, budget proposals, nomination acceptance speeches, or major addresses on the economy.

Reagan's silence in the issue is due primarily to his strong belief in the rights of the states and individual, as protected in the Bill of Rights. Reagan understood, better than almost any political figure of our times, the limitations on central power built into the Constitution and fortified by the Bill of Rights. He highlighted his fidelity to federalism in his first Inaugural Address in 1981:

All of us need to be reminded that the federal government did not create the states; the states created the federal government.

And before that, in his 1979 speech announcing his candidacy:

The federal government has taken on functions it was never intended to perform and which it does not perform well. There should be a planned, orderly transfer of such functions to states and communities and a transfer with them of the sources of taxation to pay for them.

That sounds like a constitutional conservative, not a Crony Capitalist. And I remember that Reagan was the presidential candidate for "Main Street Republicans," including the social conservative movement, while John Connolly of Texas was the guy backed by the "Wall Street Republicans."

In the decades in which he addressed public policy issues as a commentator, Governor and President, he addressed the issue of federal tort reform apparently only once, near the end of his Presidency. In remarks he gave in Washington in April 1986, he remained true to his roots, saying, "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." That's a man who knows that Uncle Sam's authority is limited to the powers enumerated in the Constitution. Unlike many on the left and right today, Reagan would have had no inconsistency between his opinion on Obamacare and his thoughts on federal tort reform. He would have found both unconstitutional.

Reagan would feel right at home with the Tea Party base of the Republican Party that recognizes and honors the 7th Amendment right to a jury trial for civil suits. He would have stood with legal scholars Randy Barnett and Rob Natelson; Senators Tom Coburn and Mike Lee; and Virginia Attorney General Ken Cuccinelli against the takeover of state tort law by the feds. I have to believe that anyone proposing sweeping preemption of the states' rights to protect citizens and manage courtrooms would've drawn severe skepticism or outright opposition by President Reagan.

So thank you, Ronald Reagan, for your vigorous defense of personal and states' rights, and for so much more.

It wasn't difficult to see liberals standing on the Mall in Washington, bundled in warm clothing and loudly cheering President Obama's Inaugural Address, with the promise of larger and more activist central government deployed to implement a "progressive" agenda. But I saw another group smiling softly deep in the background. It was the Crony Capitalists, watching from warm, comfortable Fortune 100 boardrooms across America and on Wall Street, and their K Street lobbyists in DC, all nodding their heads at the opportunity to transform that vision into new laws and regulations that would benefit their own interests. That's the way it works in Washington, and the rest of us are the cream in the Oreo cookie, stuck in the middle and crushed by both sides.

Liberals, especially those dedicated to the cause of civil justice, should be careful what they wish for in the next four years. An Uncle Sam unleashed from the limits on centralized power designed into the Constitution and Bill of Rights could hinder or even crush the individual right to have civil suits heard before a local jury and the right of state governments to enforce local laws benefitting the consumer. In the hands of Big Government Liberals and Crony Capitalists working behind closed doors in smoke-filled rooms, phrases of Obama's speech such as "collective action" and "common effort" could result in budget "compromises" and "Grand Bargains" that leave us with ugly surprises, such as federal caps on damages in medical malpractice lawsuits filed in state and county courts; preemption of state consumer protection laws; and limits on the authority of state Attorneys General. Is that what liberals signed up for when they cheered President Obama?

Civil justice activists of all stripes should heed and cite the majority decision by the Supreme Court in the Obamacare ruling. Thankfully, the Court expressed the need for the Executive Branch and Congress to recognize and follow constitutional limits on their authority under the Commerce Clause and the Necessary and Proper Clause. Constitutional experts whose theories were adopted by the majority, such as Randy Barnett and Rob Natelson, have already made it clear that the Roberts decision imposed new limits on the unbridled ambition to override state governments and individual rights. Randy Barnett promises to lead any legal challenge to an enacted federal cap on medmal damages, and both experts predict such a law would be struck down by the current Court. As long as that opinion isn't overruled through the appointment of justices who believe in an unlimited Commerce Clause, as promoted in Justice Ginsberg's minority opinion, the Founding Fathers' vision of a civil justice system dominated by local juries, and not bureaucrats in Washington, will remain alive.

Ironic, isn't it? Civil justice advocates on the left need libertarians and constitutional conservative thinkers such as Randy Barnett and Rob Natelson; conservative Republicans such as Ted Poe, Louis Gohmert, Tom Coburn, Mike Lee and Ken Cuccinelli; and wise Tea Party activists such as Judson Phillips, to keep the promise of equality under law. Let's hope civil justice liberals realize it.

Politicians in the state of New York want to cap the number of bullets in a clip or magazine, by law, from 10 to 7. Such a law would immediately transform all sorts of legally owned handguns into illegal firearms, and the owners into felons. Think the criminals will care about that cap, or will they just use an illegally modified clip to ensure they have enough to shoot as many innocent people as they want? How's that cap going to stop criminals? And what clause in the Constitution and Bill of Rights gives politicians the power to do that to us?

It's as unworkable an idea as mandating a cap on the number and type of words a blogger or journalist can use in a post or article. As one attorney put it recently, "Would you have the right of freedom of speech if that speech were limited to a certain vocabulary - say 500 words? Or even 350,000 words?.. If one is artificially limited in the words you can speak, then how does one have true freedom of speech?"

Too many Americans who claim to base their political decisions on the Constitution and Bill of Rights fold like a paper airplane when push comes to shove. Too many of us pick our founding documents apart to choose which of the limits on power in the Constitution, or which of the ten amendments in the Bill of Rights, we back at any given moment.

On no issue is that conflict more obvious than proposals to cap civil damages for medical malpractice or for broader health care-related lawsuits. First and Second Amendment absolutists ignore the right to a jury trial for civil suits, protected under the Seventh Amendment, at a moment's notice. Some politicians are so inconsistent that they back civil suits for all types of causes, such as excessive eminent domain actions or to protect religious liberty, but flip on a dime to close courthouse doors to Americans injured or killed by medical negligence.

Who made doctors, hospitals, drug companies, nursing homes and insurance companies so special? Certainly not the Founding Fathers. Not many Supreme Court Justices, or state Supreme Court justices, or modern constitutional conservatives and libertarians.

But some Missouri Republicans don't get it. Even though their own state Constitution makes the right to a civil jury trial "inviolate," a term used in many state constitutions, some there want to reinstate caps after the state Supreme Court ruled a Missouri cap law unconstitutional. Apparently, "inviolate" means one thing when it comes to freedom of religion and the right to bear arms, and something less when it comes to jury trials in Missouri.

Pro-cap legislators claim that only caps will prevent increases in health care costs. But the state caps haven't stopped health care costs from rising in Missouri, any more than caps in Texas have held down costs there. According to the Center for Medicare Services at H.H.S., health care spending per capita rose at an average of 5.1 percent each year from 2004 through 2009, during which caps were in effect.

First and Second Amendment advocates who want to strip us of the right to a civil jury trial should remember that a jury of peers is the Founding Fathers' way of protecting those other cherished rights. Or, as Judson Phillips of Tea Party Nation puts it, we need to use the Seventh Amendment to save the Second Amendment.

At the end of the last session of Congress, members of both parties finally came together to enact the Strengthening Medicare And Repaying Taxpayers Act, or "SMART Act," and enacted it into law after a three-year effort. This bill helps to replenish the Medicare Trust Fund, make Medicare work for seniors instead of the other way around, and reduces paperwork burdens for businesses. Led by Rep. Tim Murphy, M.D., a Republican from Pennsylvania, a group of Members of Congress dedicated to resolving inefficiencies in one special part of the Medicare program pushed the bill through Congress as part of H.R. 1845, the "Medicare IVIG Access and Strengthening Medicare and Repaying Taxpayers Act of 2012," which also authorizes Medicare payments for intravenous immune globin (IVIG) for the treatment of immune deficiency diseases.

Here's the issue dealt with in the SMART Act: Under federal law, Medicare pays the medical bills while a recipient is injured and sues the other party, acting as the "secondary payer" for the bills pending the outcome of any legal action. Federal law requires the injured person's attorney to repay Medicare upon a judgment or settlement, before any funds are given to the injured senior. But the federal agency running Medicare hinders the repayment process, so it can take years to finally pay off even the smallest claim, and the senior doesn't see a dime of the settlement until that payoff. Moreover, the feds impose ridiculous reporting burdens and penalties on businesses under the same secondary payer law. The SMART Act streamlines the process, establishes real deadlines for the federal agency, and enables businesses to meet CMS reporting requirements while maintaining data security.

The leading sponsor in the House was Rep. Murphy, a career psychologist serving his district for over ten years. I first met and worked with him while he was on the House Financial Services Committee, where I was the senior Republican oversight counsel from 2001 through 2003. Rep. Murphy has always reached out to work with Members on both sides of the aisle, while maintaining core conservative beliefs about limiting the size and scope of the federal government. He was the perfect Congressman to lead the most bipartisan Medicare bill in Congress, with 140 House co-sponsors from Reps. Ron Paul and Allen West on the right to Reps. Diana DeGette and Tammy Baldwin on the left. And the effort was supported by the U.S. Chamber and trial lawyers, and by companies as large as Lowes, WalMart, BestBuy, Marriott International, and Disney, as well as by some of the largest insurance companies in America

A year ago, Rep. Murphy discussed the bill on a nationally syndicated radio show. "Now it's interesting: defense lawyers, plaintiffs' lawyers,, retailers, stores, restaurants, everybody wants to fix this problem, except Medicare. And so there are hundreds of millions of dollars that sit out there that take forever for the bureaucracy to try and claim, and some of the sad news about this is that sometimes what Medicare does, they will sue some elderly person or ask for the money to come back from the elderly person, and say that if you don't pay us back, we're going to take it out of your Social Security... So we're trying to correct this..."

And correct it he did. Congrats and thanks to Rep. Murphy, and thanks to other Members of Congress who championed this bill: Rep. Ron Kind (D-WI), the lead House Democrat on the bill; and Senators Ron Wyden (D-OR) and Rob Portman (R-OH), the lead Senators for the Senate version.

Three recent proposals by highly respected conservative health care experts indicate how far out of favor the idea of capping medical malpractice damages through federal law has fallen in the past two years. Increasingly, the experts who guide Republicans in health care policy are accepting the likelihood, as stated by Randy Barnett this summer, that the post-Obamacare Supreme Court would overturn any federal law mandating caps on damages in medmal lawsuits, while NECC's negligence leading to the meningitis outbreak across the country has turned federal immunity from liability into something politically radioactive.

Tom Miller of AEI has written a 62-page piece with a playbook for market-based reform. I knew Miller years ago when he worked at the libertarian Cato Institute; he has always been a strong proponent of federalism and never really signed up for federal medmal caps. On page 55 he writes that "Exclusive reliance on caps on damages for noneconomic injuries may provide some short-term relief in lowering malpractice insurance premiums, but they may prove too arbitrary. Imposing them at the national level (except for federal programs like Medicare and Medicaid) also threatens to infringe on the traditional role of states in handling such issues. Other medical liability reforms, like health courts, early-offer incentives, and a no-fault schedule of damage claim amounts, merit further consideration."

Jim Capretta of AEI, one of the most quoted health care experts among Republicans, has been a friend for years with whom I've had several great conversations on the topic. He has a new 10-page piece out in which he doesn't even mention medmal caps, the first time he's dropped it completely from his work. Jim has moved towards protecting federalism in all health care law as doctors' demands for federal protection exposed Republican inconsistency with the party's stand against Obamacare.

Avik Roy, a fellow at the Manhattan Institute and a health care policy advisor for Republican Presidential nominee Mitt Romney, has always argued against federal medmal caps. This year, he promoted a Tea Party-side plan proposed by Rep. Paul Broun, M.D., who also vocally opposes federal medmal caps. Now Roy has his own Obamacare replacement plan, and federal medmal caps are nowhere to be found.

Of course, politicians in a position of authority can propose whatever they want to do, but these proposals indicate that federal medmal caps are no longer a high priority in the Republican health care agenda. The constitutional arguments against it make it unlikely to survive in court, and the political cost of immunizing the NECC's of the country from deadly errors is too great.

Republicans are searching for ways to avoid automatic cuts of hundreds of billions of dollars in defense spending, and many are turning to the Simpson-Bowles Commission report for ideas. But deep inside the Simpson-Bowles recommendations and many Republican bills to avoid the sequester is an idea which could render any bill unconstitutional. That idea is a federal cap on damages in medical malpractice lawsuits. Anti-Obamacare legal experts such as Prof. Randy Barnett and Virginia AG Ken Cuccinelli are convinced that such a law is unconstitutional. Last year, Prof. Barnett wrote in May, and again in November, that tort law belongs to the states, and thus is beyond the reach of federal authority.

Recently Prof. Barnett took his opposition further, vowing to lead a court challenge to any enacted federal medmal law. He participated in a post-Obamacare teleforum run by the Federalist Society on July 17. I called in and asked Prof. Barnett about the impact of the decision on federal tort reform bills, and specifically on the federal medmal limits pushed by many GOP leaders.

Prof. Barnett responded by saying that the jurisdictional basis for federal tort reform can now be "easily challenged," He added, "I will help lead that challenge if ever enacted, and I think we would actually have an easier time defeating that than defeating the (Obamacare) mandate... In fact, this court would strike that down (referring to federal medmal limits)... I'll be involved in the lawsuit."

Attorney General Cuccinelli also promised in 2011 to sue to stop federal caps on medmal damages. "This legislation expands federal power, tramples the states and violates the Constitution. And if it were ever signed into law -- by a Republican or Democratic president -- I would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law in March 2010 (15 minutes later)."

They're not alone among conservative and libertarian legal experts and Members of Congress. On July 27, Rob Natelson of the Independence Institute and the Tenth Amendment Center posted, Obamacare Decision Suggests U.S. Malpractice Bill Unconstitutional, in which he wrote, "Chief Justice Roberts' health care opinion strongly suggests that the Necessary and Proper Clause is simply not broad enough to include the kind of control over state courts that H.R. 5 would impose... It seems clear that the Supreme Court will not tolerate efforts by Congress to dictate rules and procedures to state courts. In light of this new information, the sponsors of H.R. 5 should honor their oath to support the Constitution by promptly withdrawing the bill."

Other libertarians and conservatives opposing federal medmal caps on constitutional grounds include Senators Tom Coburn and Mike Lee; Prof. John Baker; Ms. Carrie Severino of the Judicial Action Network; Prof. Ilya Somin of George Mason Law School; and even Walter Olson and Ted Frank, who criticize the plaintiffs' bar at every opportunity. State legislators of both parties have repeatedly condemned Republican votes for a federal takeover of state tort law through medmal caps.

The SCOTUS Obamacare decision highlighted the limits of federal authority over states' and individual rights. Over and over again, Chief Justice Roberts wrote of the Constitution's enumerated powers for the federal government and of the need to protect states from an overreaching federal government. He defined states' rights in terms of the inherent "police power" which is reserved for the states.

So what is included under the umbrella of the constitutional "police power?" In May of 2011, Randy Barnett wrote, "Tort law is at the heart of what is called the 'police power' of states... Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power."

So any law which includes federal caps on medmal damages WILL face a lawsuit, led by Prof. Barnett and Attorney General Cuccinelli, and supported by many or most of the anti-Obamacare Legal Dream Team. And that law has a decent chance of being struck down as an unconstitutional exercise of the Commerce Clause and the Necessary & Proper Clause.

That's no way to avoid a sequester.

Prof. Randy Barnett was one of the leading theorists among Tea Party activists and Republicans in the court battles against Obamacare. He was co-counsel for the complaint filed by the NFIB, which was eventually the basis for the Supreme Court ruling that Obamacare is an excessive use of federal power and an invalid exercise of the Commerce Clause and the Necessary and Proper Clause.

Prof. Barnett has also been a staunch opponent of federal tort reform bills, and for the same reason as his opposition to Obamacare. Last year, he wrote in May, and again in November, that tort law belongs to the states, and thus is beyond the reach of federal authority. "Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power." He's been joined in that view by other libertarian and conservative legal scholars, such as John Baker, Carrie Severino, Ilya Somin, and Rob Natelson, and by elected Republicans such as Virginia Attorney General Ken Cuccinelli, Senators Tom Coburn and Mike Lee, and numerous House Republicans who honor federalism.

While GOP leadership has quoted and promoted Prof. Barnett's views on Obamacare, they've completely ignored him on the subject of federal tort reform, and in the process overridden opposition by constitutional conservatives in both houses. House leaders attached H.R. 5, a bill mandating federal limits on damages in medical malpractice lawsuits, to two bills to ensure House approval, and Senate GOP leaders attached their version of H.R. 5 to a Republican "jobs bill."

Now Prof. Barnett has taken his opposition further, vowing to lead court challenges to any enacted federal medmal law. He is convinced that the Supreme Court's Obamacare ruling makes a constitutional challenge to such a law much more likely to succeed. He participated in a teleforum on the post-Obamacare environment run by the Federalist Society for members on July 17, and the Society finally posted the podcast last week. As a member of the Federalist Society, I was entitled to participate, so I asked Prof. Barnett about the impact of the decision on federal tort reform bills, and specifically on the federal medmal limits pushed by GOP leaders.

Prof. Barnett responded by saying that the jurisdictional basis for federal tort reform can now be "easily challenged," He added, "I will help lead that challenge if ever enacted, and I think we would actually have an easier time defeating that than defeating the (Obamacare) mandate... In fact, this court would strike that down (referring to federal medmal limits)... I'll be involved in the lawsuit."

You can download and listen to the entire podcast from the Federalist Society's website (MP3 file). My question and his response start just after the 51:10 mark.

Prof. Barnett isn't the first Tea-Party-side constitutional scholar to write that the SCOTUS Obamacare decision makes a federal law limiting medmal damages more likely to be found unconstitutional. On July 27, Rob Natelson of the Independence Institute and the Tenth Amendment Center posted, "Obamacare Decision Suggests U.S. Malpractice Bill Unconstitutional," in which he wrote, "Chief Justice Roberts' health care opinion strongly suggests that the Necessary and Proper Clause is simply not broad enough to include the kind of control over state courts that H.R. 5 would impose... It seems clear that the Supreme Court will not tolerate efforts by Congress to dictate rules and procedures to state courts. In light of this new information, the sponsors of H.R. 5 should honor their oath to support the Constitution by promptly withdrawing the bill."

So it's likely the same group of legal libertarian and conservative scholars who opposed Obamacare will also oppose federal limits on medmal damages and other federal tort reform bills. Republican leaders who insist on capping victims' rights in federal law now face the embarrassing spectacle of seeing their brightest legal stars publicly opposing them in public and in the courts.

On July 18, Wheaton College, one of most famous evangelical colleges in the U.S., joined The Catholic University of America in protesting the Obamacare HHS mandate by filing its own suit, with the Becket Fund for Religious Liberty as the attorney of record. In a press release, the Becket Fund noted, 'This alliance marks the first-ever partnership between Catholic and evangelical institutions to oppose the same regulation in the same court.'

And on Page 30 of the complaint, you'll see the sentence, "Wheaton requests a trial by jury on all issues so triable." Like many of the institutions filing suit against the mandate, Wheaton College is exercising its right to a civil jury trial as protected by the Seventh Amendment to the Constitution.

Faith-based groups and their allies across America are protesting the Obamacare HHS mandate to force the provision of abortion-inducing drugs and devices through health insurance policies. For the first time in American history, a President is trying to impose a narrow definition of "religious institution," in order to implement a political agenda. The definition could force the closure of faith-based services organizations, such as AIDS clinics, schools, and hospitals. If successful, the mandate would serve as the template for Uncle Sam to define any religious organization as it sees fit, and dictate hiring, financial, and all organizational decisions.

The Wheaton College lawsuit is the latest salvo in the ongoing protest. On June 14, the Catholic Heath Association, the largest groups of Catholic-based hospitals in the U.S., issued a letter opposing the HHS mandate. On June 11, over 150 faith-based organizations joined in a letter to HHS Secretary Sebelius, expressing "grave concern" over the impact that the Obamacare mandate will have on religious freedom. And on May 21, lawsuits were filed against the mandate by 43 Catholic dioceses, organizations and universities, specifically invoking their Seventh Amendment rights and demanding that local juries hear the suits, not judges. Other suits against the mandate were filed at various times by Christian colleges and state Attorneys General.

This legal battle is yet another reminder that the Founding Fathers designed a civil justice system rooted in the right to a jury trial for civil suits for all cases and causes. Religious liberty, property rights, free speech rights, medical malpractice claims, and products liability claims are treated equally under the Founders' grand design. The Founders wrote of the need to protect the right to a civil jury trial from before the Revolutionary War through the debates by the states on the ratification of the Constitution, and then to the adoption of the Seventh Amendment as part of the Bill of Rights. The Seventh Amendment was unanimously approved by the states. At no time did the Founders discuss abridging that right by splitting cases or causes of action into economic and non-economic, with different rights for different types.

The Supreme Court's decision in the Obamacare case (Acrobat document) highlighted the limits of federal authority over states' and individual rights. Over and over again, Chief Justice Roberts wrote of the Constitution's enumerated powers for the federal government and of the need to protect states from an overreaching federal government. He defined states' rights in terms of the inherent "police power" which is reserved for the states. Here is a key quote:

The Constitution may restrict state governments--as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional authorization to act. The States thus can and do perform many of the vital functions of modern government--punishing street crime, running public schools, and zoning property for development, to name but a few--even though the Constitution's text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the 'police power.' See, e.g., United States v. Morrison, 529 U. S. 598, 618-619 (2000).

And Justice Roberts was unwilling to enable the federal government to mandate the purchase of health insurance under the Commerce Clause, in contradiction to the "police power" of the states.

"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... The Government argues that the individual mandate can be sustained as a sort of exception to this rule, because health insurance is a unique product... The proximity and degree of connection between the mandate and the subsequent commercial activity is too lacking to justify an exception of the sort urged by the Government. The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to 'regulate Commerce.'"

Justice Roberts cited the U.S. v Morrison case, in which then-Chief Justice Rehnquist wrote several times that the Constitution reserved the "police power" to the states, and quoted from the Supreme Court's ruling in the U.S. v Lopez case: "[W]e always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power."

Paul Clement, who argued the case against Obamacare before the Court, also asserted that "the police power resides with the states" in a debate at the 2011 Federalist Society national convention. In the brief filed for the State of Florida before the Court, he asserted that the Constitution "reserves the plenary police power to the states" (page 17 of the brief).

So what is included under the umbrella of the constitutional "police power?" Well, one of the Republicans' favorite legal experts and anti-Obamacare theorists says that tort law is a "police power" not subject to federal authority:

Prof. Randy Barnett, in May 2011: "But tort law -- the body of rules by which persons seek damages for injuries to their person and property -- has always been regulated by states, not the federal government. Tort law is at the heart of what is called the 'police power' of states... Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power."

And other top Republican, anti-Obamacare constitutional experts clearly agree with Prof. Barnett's conclusion that Congress has no business regulating tort law through, for instance, federal limits on awards in medical malpractice lawsuits.

Virginia Attorney General Ken Cuccinelli, in November 2011, writing about a Senate bill to cap awards in medical malpractice cases: "The legislation is breathtakingly broad in its assumptions about federal power, particularly the same power to regulate commerce that lies at the heart of all the lawsuits (including Virginia's) against the individual mandate of the 2010 federal health-care law... This legislation expands federal power, tramples the states and violates the Constitution."

Sen. Mike Lee on Fox Business Network in March: "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."

Prof. John Baker, in June 2011: "To justify their efforts to nationalize medical malpractice law, House Republicans are stretching the Supreme Court's New Deal Commerce Clause jurisprudence almost as far as Democrats did for Obamacare."

Carrie Severino of the Judicial Action Network, in October 2011: "The law's own justification for its constitutional authority should be chilling to anyone committed to limited federal power... Congress would be nationalizing purely local activity because state-by-state solutions would require a lot of resources and hard work."

Rob Natelson, writing about the Founders' intentions in the Constitution in his monograph titled, 'The Roots of Judicial Federalism': "Reserved to the states would be nearly all the authority they had exercised previously, including power over state court procedures and over existing areas of substantive jurisdiction. With a few exceptions, therefore, the states were left in exclusive possession of the law of torts, contracts, inheritance, property, and criminal law."

So there's no argument among top Republican experts - tort law just isn't a federal issue, and the Obamacare decision only made that point perfectly clear.

Judson Phillips, founder of Tea Party Nation and Associate Director of TheTeaParty.net, has been defending the 7th Amendment for much of the past year, and is among the national conservatives most quoted on the unconstitutionality of federal limits on medical malpractice awards. Judson's years of experience in the courtroom as a litigator and prosecutor, and his years of political activism, endow him with special credibility on these issues. Last week, he challenged the conventional wisdom on the impact of Texas state limits on medmal awards in a post and a radio interview.

Judson posted 'A hollow liberty' on TeaPartyNation.com on July 9. In it, he discussed the deterioration of the constitutional right to a civil jury trial through tort reform laws. He then described a famous medmal case in Texas in which the victim was left with no means of exercising his right to hold the negligent doctor accountable in court, thanks to Texas medmal limits. Here is an excerpt:

"What good is a right if you cannot exercise it? That is not one of those, if a tree falls in the forest and no one hears it, does it make a sound questions. Our Constitutional rights are under assault from various sources. Those who want to attack our rights have learned they can never get those rights repealed, so instead they simply try to make it impossible for those rights to be exercised.

What happened to Charles Caldwell is a terrible example of what has gone wrong. Caldwell suffered from Parkinson's disease and went to a nursing home after surgery to recover. Among other things, a feeding tube was placed in his stomach because he could no longer swallow.

His son and daughter in law Bill and Kelly Putnam were visiting his father when the nurses at Signature Pointe Nursing home tried to give medications to Caldwell through his feeding tube. When the medicine did not go down the right way, the nurses tried the old fashioned method of "if it doesn't go, force it." After three tries it did not go. Finally Caldwell began to struggle and thrash. The medicine had gone into his lungs instead of going into his stomach. Caldwell drowned on medicine in front of his family.

When Putnam decided he was going to sue over his father's death, he found the hard truth about Tort Reform. No lawyer would take the case. It was not that it was not a strong case. It was a strong case. Simply put, because of Tort Reform lawyers can no longer take those types of cases because they are no longer economically viable for the lawyers."

Judson reminded his readers that it's impossible for us to exercise our 7th Amendment rights if we state-imposed limits disincentivize lawyers to take the case. "By imposing caps on so-called "non-economic" damages, lawyers can no longer take these types of cases. Lawyers have staffs they have to pay. They have expenses such as the costs of their offices. Plus in cases such as these, the lawyer will advance the costs for expenses such as the required experts who must review cases before a suit is filed. Without a lawyer, the 7th Amendment Right to a jury trial is effectively gone."

And he referred to recent studies concluding that Texas medmal limits have neither kept health care costs down nor attracted doctors to Texas. "The myth of tort reform is that it will reduce costs and will attract doctors to the profession. Unfortunately as with all myths, that one is untrue. Healthcare costs in Texas have not been reduced, nor are doctors flocking to Texas."

Judson Phillips concluded with a warning for Americans about the future if Congress imposes a federal limit on medmal awards. "What has happened is that another right has been lost. Freedom is reduced and liberty has taken another step towards becoming simply a hollow shell."

He was interviewed about this issue on July 11 by Terry Lowry for his nationally syndicated 'What's Up' program, heard weekdays on 12 radio stations and on Sirius Channel 131, Family Talk Radio. You can download and listen to the first segment here and the second segment here. That program is the only nationally broadcast program on radio or TV to regularly defend and discuss our constitutional right to a jury trial for civil rights and deserves our support.

I want to post links to podcasts of two interviews I've recently done on the unconstitutionality of federal tort reform.

The group 'Let America Know' interviewed me for their July 12 "You Should Know" newsletter, sent to 50,000 subscribers. In the podcast, I summarized the Founding Fathers' writings, assertions by legal experts on the unconstitutionality of federal caps on medical malpractice damages and other tort reform measures, and the impact of Texas medmal limits. For regular readers of my work, there's nothing new, but if someone wants a 15-minute summary of everything I've do, this podcast will do nicely (MP3 file). Please note that I recorded the interview before the Supreme Court's Obamacare decision, so it doesn't reflect the substantial impact of that ruling on this issue. LAK was founded by Art Kosieradzki, a practicing attorney in Minneapolis, and now partners with state trial lawyer associations and the American Association for Justice, one of my clients, to teach Americans about the civil justice system and Seventh Amendment right to a civil jury trial.

I was interviewed on July 10 by Terry Lowry for his nationally syndicated 'What's Up' program, heard weekdays on 12 radio stations and on Sirius Channel 131, Family Talk Radio, to discuss the post-Obamacare landscape for federal tort reform (MP3 file). That program is the only nationally broadcast program on radio or TV to regularly defend and discuss our constitutional right to a jury trial for civil rights and deserves our support.

I want to thank LAK and Terry Lowry for their invitations to discuss these issues and hope readers will distribute the podcasts nationwide, especially in this election year.

Catholic churches and Catholic-based social services groups have filed lawsuits throughtout America to defend religious liberty from President Obama's mandate to pay for abortion-inducing, baby-killing drugs, in violation of official Church teachings. For the first time in American history, a President is trying to impose a narrow definition of "religious institution," in order to implement a political agenda. The definition could force the closure of Catholic-based services organizations, such as AIDS clinics, schools, and hospitals. If successful, the mandate would serve as the template for Uncle Sam to define any religious organization as it sees fit, and dictate hiring, financial, and all organizational decisions.

All this is lost on Obama, who apparently sees his mission as telling the churches and all of the religions in the U.S. how to operate or face closure. Now he has created, out of thin air, a new constitutional standard for religious liberty. In an interview with a New Orleans TV station, Obama said it's "not fair" for the Catholic Church to deny abortion-inducing, baby-killing drugs to its employees. Somehow this former professor of Constitutional law thinks that he can dictate a Fairness Doctrine on Catholics and any other church in America. Where did he make this up?

Our Founding Fathers must be rolling over in their graves. They knew that religious liberty was the reason why many left England, and in the First Amendment they defended the right of all faiths to practice in accordance with their own doctrines. And they practoced what they enshrined in law. The first Catholic Bishop in the U.S., John Carroll, was a close friend of George Washington and sought, at Washington's request, to persuade the French to provide assistance to the colonies seeking freedom from England. And Washington, though not a Catholic, donated the first funds to build the first Catholic church in Alexandria, Virginia, near his home at Mount Vernon.

Fortunately, the Founders created a civil justice system and protected the right to seek justice before a local jury. Many of the Catholic groups have exercised that right, protected under the Seventh Amendment to the Constitution, to ask a local jury to hear their cases. They don't want to entrust their precious, God-given right to a federal judge nominated by any President.

A terrific story in the Wall Street Journal and Congressional testimony by a Republican Lt. Governor depict why health care costs are still soaring and how to bend the curve. And a new study by the Texas Medical Association shows why Texans on Medicare and Medicaid are having trouble accessing quality health care. In neither case is the cost of medical malpractice awards even mentioned, an indication of its actual irrelevance.

The Wall Street Journal story, "The Crushing Cost of Care," describes several real cases in which a 41-year-old who needed a heart transplant suffered so many complications that he became "one of the most expensive Americans on Medicare." It presents some simple facts about the cause of rising health care costs:

A sliver of the sickest patients account for the majority of U.S. health-care spending. In 2009, the top 10% of Medicare beneficiaries who received hospital care accounted for 64% of the program's hospital spending, the Journal's analysis found.

As for Medicare's long-term cost trajectory, it is relentlessly upward. The program's net expenditures totaled $486 billion last year, according to the Congressional Budget Office, or 13.5% of all federal expenditures. In March, the CBO projected that Medicare expenditures would grow an average of 5.7% per year through 2022 and equal 16.2% of all federal outlays.

Medicare patients rack up disproportionate costs in the final year of life. In 2009, 6.6% of the people who received hospital care died. Those 1.6 million people accounted for 22.3% of total hospital expenditures, the Journal's analysis shows.

Notably, the costliest patients aren't necessarily the oldest, even though Medicare mainly cares for people 65 or older. Of the top 10 costliest people on Medicare in 2009, eight were on disability, including Mr. Crawford. Disability is the main way people under 65 qualify for Medicare.

The medical personnel appear to have done everything they could, and nowhere in the article is either medical malpractice, or awards in medical malpractice lawsuits, discussed as an issue in soaring Medicare/Medicaid costs.

Testimony today by the Republican Lt. Governor of Kansas, who is also a practicing surgeon, also points to soaring Medicare & Medicaid costs as a primary driver in the overall cost of health care. Lt. Gov. Jeffrey Collyer, M.D., testified before a U.S. House subcommittee on the impact of Obamacare on doctors and patients. Dr. Collyer summarized the cost curve prior to his taking office with a new Republican Governor in 2011:

From 2002-2008, Kansas Medicaid spending grew 33 percent, while enrollment increased 25 percent. This growth occurred as Kansas tax revenues remained strong. Since then, Kansas' Medicaid budget has ballooned from $2.4 billion in 2008, at the onset of federally mandated "maintenance of effort" requirements, to what will reach nearly $3 billion in 2013 without reforms.

He then described the steps taken to bend the cost curve and remake Medicaid, without cutting anyone off. Projected savings will be over $1 billion, and the reforms even added new services.

The Lt. Governor recommended nine innovations to enable states to remake their own Medicaid systems. None of the steps involve closing courthouse doors to victims of medical malpractice.

In Texas, a new survey of doctors by the Texas Medical Association shows that an increasing number are refusing to take on new patients who depend on Medicare and Medicaid. The TMA blames the "government regulatory burdens, red tape, payment hassles, and low pay" that result from accepting Medicare and Medicaid reimbursements. The real victims are theose Texans who can least afford it. "Hardest hit are low-income Texans who rely on Medicaid for their care. Texas physicians available to treat new Medicaid patients have plummeted from 42 percent in 2010 to 31 percent -- an all-time low."

Nowhere in the press release does the TMA claim that doctors' fear of medical malpractice awards in other cases is a factor in their refusing to take on new Medicare/Medicaid patients. That's not a surprise, given that recent studies show that the Texas law limiting medmal awards has neither reduced the increase in health care costs or improved access to health care.

A great trial lawyer and Founding Father, John Adams, is credited with saying, "Facts are hard things." The debate over tort reform is driven far too often by myths, not hard facts. It's time for those pushing an unconstitutional, one-size-fits-all, federal solution to see the facts behind the rise in health care costs and stop using medical malpractice as a convenient punching bag.

In my opinion, the single biggest problem with the Republican Party today is that its leaders claim to represent the cause of limited government, or "constitutional conservatism," but either don't know what that really means or hypocritically ignore its meaning to advance an "un-conservative" political agenda. The Obamacare decision by the Supreme Court revealed an incredible disconnect between the claims of top Beltway Republicans and their stands on the specific use of federal power to limit states' and personal rights. House Republican leaders such as Speaker Boehner and Reps. Hensarling and Price toss out "medmal limits" as a response to Obamacare, mindless of the constitutional inconsistency.

And where is Mitt Romney on this issue? Well, he's been confused for a long time and remains so. It's no surprise that Tea Partiers had such a tough time accepting his winning the Republican Presidential nomination, because his record is anything but "constitutionally conservative."

As Governor, Mitt Romney pushed through tort reform measures with caps on damages, and he's continued to push tort reform as a panacea for rising health care costs and poor economic growth. The attached Word file documents the numerous instances in which he called for state and federal medmal limits prior to starting his current campaign.

Romney is full of contradictions in his own recent statements on federal interference in health care. I wrote on June 13 that in a speech billed as a "major health care speech," Romney pledged to uphold and protect the 10th Amendment in all of his health care policy decisions. Moreover, he didn't call for federal medmal limits.

However, on the 'Health Care section of his campaign website he proposes to "Cap non-economic damages in medical malpractice lawsuits." Never mind that it follows a section proposing to "Restore State Leadership and Flexibility."

That's not all. In the 'Regulation' section, he proposes to "Reform legal liability system to prevent spurious litigation."

So it looks pretty clear that Mitt Romney is for federal tort reform, with little regard for states' rights.

If Romney is going to "believe in the 10th Amendment," as he says, maybe he needs a short refresher course in its meaning and history. The Founding Fathers clearly intended for Americans to take their civil suits before a local jury of their peers, and they never differentiated between economic claims (i.e., personal injury) and non-economic claims (i.e., free speech and property rights). They did so from long before independence from Britain through the great debates over the ratification of the Constitution and then the Bill of Rights. In 1765, John Adams condemned the British for abrogating the right to a civil jury trial through a provision in the Stamp Act. Constitutional scholar Rob Natelson has documented the texts in the pre-Revolutionary pamphlets and pre-Constitution ratification debates indicating the dedication of the Founders to preserving state sovereignty over civil law, including the right to trials by jury. And in her award-winning book, Ratification: The People Debate the Constitution, 1787-1788, historian Pauline Maier documents the ratification debates over the right to a civil jury trial in Pennsylvania, Connecticut and Virginia. The Founders added the 10th Amendment as a rule of construction to steer future generations away from imposing on state sovereignty and personal liberty.

There can be no debate over the intent of the Founders. Summarizing them, Rob Natelson wrote, "The effort to impose federal control over state courts and state civil justice violates one of the core principles of our federal system: That most judicial matters are local. Keeping courts and procedures local is, in fact, a crucial protection for individual liberty."

Romney and Beltway Republicans either don't know of these writings or don't care. Instead, many Republicans have taken the position that the Constitution itself, through the Commerce Clause and the Necessary & Proper Clause, enables Congress to override state tort law and direct state courtrooms how to hear claims over medical malpractice.

Not only did the Obamacare decision not support that theory, I assert (without rebuttal thus far) that Justice Roberts' opinion makes it much more likely that this Supreme Court would rule against federal tort reform laws. Current constitutional scholars, including the leading anti-Obamacare legal theorists such as Randy Barnett, Virginia Attorney General Ken Cuccinelli, Ilya Somin and Rob Natelson, have written numerous times that federal tort reform is not a valid exercise of the Commerce and the Necessary & Proper Clauses.

Romney has never proposed a coherent approach to constitutional rights and the limits on federal power. He deserves the skepticism of the real conservatives in his party and of all 7th and 10th Amendment advocates.

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."

Judson Phillips, founder of Tea Party Nation, continuously "gets it." He knows that Obamacare and federal tort reform bills are "the Wickard twins," equally unconstitutional ideas arising from the Supreme Court decision in 1942 that unleashed a runaway Commerce Clause on an unsuspecting American public. States' and individual rights don't have a prayer if we let an unlimited Commerce Clause govern aspects of American life in ways never envisioned by the Founders, starting with health care and tort law. That's why Judson has written and spoken often against federally imposed on caps in medical malpractice cases, such as those proposed in H.R. 5. We've even seen the spectacle of Democrats challenging the states' rights position of Republicans with Judson's own words, for which the pro-H.R. 5 Republicans have no response.

He's at it again in a post on Tea Party Nation, as follows:

If the Republicans are successful in taking the White House and the Senate (they will keep the House), then we will see the next incarnation of attacks on state sovereignty.

That will come in the form of Federal Tort Reform. Some Republicans want to impose Federal Tort Reform on all of the states. Many people have a knee jerk reaction to tort reform. Oh, we don't like the trial lawyers. We don't like lawyers, period. Let's hurt the lawyers.

Since 1787, states have regulated state courts. Since 1787, states have regulated licensed professionals in those states including doctors, lawyers and others. In Federal Court, unless there is a lawsuit governed by a specific federal statute, state law controls the federal courts. Lawyers cannot be admitted to practice before federal courts until they are admitted before the highest court of one of the states.

To allow the Federal Government to impose tort reform on the states wipes out some of the last vestiges of state sovereignty, namely the ability to make its own laws.

State sovereignty has always been the bulwark against they tyranny of a massive federal government. Our founding fathers knew that. That is why they purposefully made the Federal Government weak.

As we hopefully approach the end of the Obamacare Era, either by judicial decision or through an election, Republicans must resist the urge to respond to polls favorable to medmal caps. After all, polls were once favorable to Obamacare, too.

Instead, they should listen to the wisdom of Tea Party-side experts and activists such as Judson Phillips, and avoid any incursion on the Constitution and Bill of Rights.

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.

"If this law is upheld as constitutional by the Supreme Court, then there's virtually nothing that's beyond Congress's reach, and I think that would be a horrible, horrible precedent for the country."

So said Sen. Mike Lee (R-UT), member of the Senate Judiciary Committee, discussing the potential impact of a Supreme Court ruling affirming the constitutionality of the Obamacare individual mandate. Sen. Lee confirms what I've been trying to tell pro-Obamacare civil justice liberals for almost two years - that if Obamacare wins, federal medmal limits will be considered as more permissible under the Commerce Clause and therefore far more likely to be enacted.

Go look at my Archives, back to my post in January 2011 about Justice Thomas' warning on the unlimited danger of an unlimited Commerce Clause. Look at what anti-Obamacare legal experts such as Randy Barnett, Virginia Attorney General Ken Cuccinelli and John Baker wrote about H.R. 5, the bill to impose federal limits on awards in medical malpractice lawsuits. Read what I wrote in my post titled, Obamacare and Federal Tort Reform, Perfect Together. The theme is the same:

Obamacare and federal medmal limits, and indeed most federal tort reform bills, are based on the same abusive interpretation of the Commerce Clause, to the detriment of states' and individual rights. The Obama Justice Department and the tort reform advocates cite the same landmark Supreme Court ruling, Wickard v. Filburn, for their bills.

So if Obamacare wins, the cause of federal tort reform will advance. If Obamacare wins, courtroom doors around America could close. If Obamacare wins, victims of medical malpractice, defective drugs and devices, nursing home abuse, and deadly hospital errors could eventually see their lawsuits dismissed. Nationwide.

A few groups get this. Constitutional conservatives like Sen. Lee, the legal experts I cited, Tea Party leaders such as Judson Phillips, all get it. They want nothing to do with Obamacare OR federal tort reform.

The medical providers and associations get it too. They pushed Obamacare in Congress under secret deals with the Obama White House and backed it in court. They want millions of new patients, paid for by the rest of us. They push H.R. 5 and other federal tort reform bills because it gives them effective immunity from civil suits.

Pro-Obamacare civil justice liberals don't get it. I've seen post after post, article after article, from those who pledge to protect "justice for all" or whose entire business model depends on open courtrooms, nodding their heads at Obamacare in full bobblehead mode. I shake my head in wonder.

But soon, very soon, the Supreme Court will redefine the meaning of the Commerce Clause in the Obamacare decision. Then one side will win and another will lose, and we'll know more about the limits of federal power.

Last week, scores of influential Catholic and Christian groups publicly backed the principles underlying the lawsuits filed on May 21 by Catholic dioceses and groups against the Obamacare drug and device mandates. The announcements should add considerable pressure on the Obama White House to rescind or amend HHS regulations ordering faith-based groups to engage in health care activities totally contrary to the congregations' religious doctrines.

On June 11, over 150 faith-based organizations joined in a letter to HHS Secretary Sebelius, expressing "grave concern" over the impact that the Obamacare mandate will have on religious freedom. The Institutional Religious Freedom Alliance, a Washington, D.C.-based coalition, organized the letter. It was signed by aid organizations, including World Relief and the U.S. branches of the Salvation Army and World Vision, Inc, as well as by the National Association of Evangelicals; the National Hispanic Christian Leadership Conference; the Baptist Bible College & Seminary; and the North American Baptist Conference. Legal organizations involved in lawsuits against the Obamacare mandate, such as Liberty Counsel and the American Center for Law and Justice, also signed the letter. They wrote:

As leaders and supporters of faith-based service organizations, we write to express our grave concern about the two-class concept of religious organizations that has been created by your department and other federal agencies in connection with the contraceptives mandate of the health insurance regulations for preventive services for women.

But we are united in opposition to the creation in federal law of two classes of religious organizations: churches--considered sufficiently focused inwardly to merit an exemption and thus full protection from the mandate; and faith-based service organizations--outwardly oriented and given a lesser degree of protection. It is this two-class system that the administration has embedded in federal law via the February 15, 2012, publication of the final rules providing for an exemption from the mandate for a narrowly defined set of "religious employers" and the related administration publications and statements about a different "accommodation" for non-exempt religious organizations.

On June 14, the Catholic Heath Association, the largest groups of Catholic-based hospitals in the U.S., delivered a crushing blow to any hopes that the Obamacare mandates would find any approval among leading Catholic-based organizations. The Catholic Health Association, the largest group of Catholic-affiliated hospitals and nursing homes in the country, issued a letter opposing the HHS mandate. The CHA's opposition is especially damaging to the future of Obamacare because (a) it represents 600 hospitals and hundreds of nursing homes (one of every six patients in the U.S. is cared for in a Catholic hospital); and (b) it supported the enactment of Obamacare and was a key player in votes for the law by Catholic Democrats in the U.S. House.

CHA President, Sister Carol Keehan, wrote in the letter that, "we continue to believe that it is imperative for the Administration to abandon the narrow definition of "religious employer" and instead use an expanded definition to exempt from the contraceptive mandate not only churches, but also Catholic hospitals, health care organizations and other ministries of the Church."

In other words, the Obamacare mandate would force CHA-member institutions to either turn away non-Catholic patients or close. That's what numerous Catholic social services organizations have said - hospitals, nursing homes, AIDS clinics, and local clinics for the poor could all close.

These letters are precursors to the next stage of lawsuits against Obamacare by faith-based social service organizations, unless the White House amends or rescinds the current version of the mandate or the Supreme Court throws out the entire law.

The 43 Catholic dioceses, organizations and universities that sued the Obama administration on May 21 invoked their 7th Amendment rights and demanded that local juries hear the suits, not judges. It would be better if push doesn't come to shove, but if it does, the nation will see why the Founding Fathers were unanimous in including this "sacred" and "inviolable" right in the Bill of Rights.

What I would do is keep, as we have today, state responsibility for those that are uninsured. You see I believe in the 10th Amendment. I believe the states have responsibility to care for their people in the way they feel best.

So said Mitt Romney, Republican candidate for President, in his most detailed speech on health care policy to date. Speaking in Orlando under a banner announcing, "Repeal & Replace Obamacare," Romney pledged to replace Obamacare in several steps. Most importantly for my purposes, here is what Mitt Romney did and did not do yesterday:

He pledged to uphold and protect the 10th Amendment in all of his health care policy decisions.

He did not criticize Americans for exercising their 7th Amendment right to ask a jury to hold health care professionals responsible for deadly medical errors. He didn't even mention civil suits.

He was not inconsistent or hypocritical with the 10th Amendment by simultaneously proposing to crush states' and individual rights by instituting unconstitutional federal medmal limits.

He did not back the efforts by health care companies, their associations, or their Beltway allies to enact such laws.

He did not promise to reward the pro-Obamacare health care associations, the very groups that shoved Obamacare down our throats through their secret deals and lobbying, with another special deal to immunize them from civil liability.

He did not associate himself with the doctors in Congress who are trying to enact special interest legislation to protect their industry from accountability and responsibility through federal tort reform.

And he did not commit to using a phony CBO estimate of budget "savings" from medical malpractice limits as a way to pay for other budget items.

Now I know that as Massachusetts Governor, Mitt Romney enacted statewide limits on awards in medical malpractice lawsuits.

I also know that his campaign website includes a proposal to "Cap non-economic damages in medical malpractice lawsuits."

SO WHICH MITT ROMNEY WOULD BE PRESIDENT?

Is it the self-proclaimed protector of states' rights? Or is it the former governor who unabashedly closed state courthouse doors to victims of deadly medical errors? Will he convert into a true federalist?

I convert Republicans in Washington into consistent states' rights advocates. I show them what their own favorite constitutional experts say about the unconstitutionality of federal tort reform. I don't have to say much. I've seen it work time and again.

Mitt Romney? We'll see...

Robert Muise, Esq., is the co-founder of the American Freedom Law Center, a nonprofit litigation firm fighting for religious freedom in courtrooms nationwide. AFLC is one of the conservative religious liberty litigation firms that I refer to as the "Trial Lawyers For Religious Freedom," a group that includes the Alliance Defense Fund, the Becket Fund, and and the Thomas More Law Center, which Muise also founded.

Earlier this year, AFLC filed a lawsuit against the Obamacare contraception mandates on behalf on the Catholic group "Priests For Life." On Friday, Mr. Muise spoke at one of the scores of "Stand Up For Religious Freedom" rallies held nationwide, to discuss the lawsuits.

Mr. Muise, a Catholic, co-founded AFLC with David Yerushami, an Orthodox Jew, and highlighted the nonsectarian nature of religious freedom in his remarks. "This is not just a Catholic issue, it's an American issue." You can watch Muise's remarks here:

Republicans who condemn trial lawyers should remember that champions of religious freedom such as Muise are filing their suits under the same Constitution and Bill of Rights as trial lawyers filing medical malpractice and product liability claims.

Do anti-trial lawyer Republicans want to "tort reform" the religious freedom lawsuits filed by AFLC, ADF, and the Catholic groups and limit their rights in court?

Do anti-trial lawyer Republicans want to give orders to state courts on the procedures for hearing such suits, just as they do in H.R. 5, the bill to federally limit medmal awards?

Do anti-trial lawyer Republicans want to impose federal wage controls on trial lawyers for religious freedom, like they propose in H.R. 5 for attorneys filing medmal lawsuits?

When will the Republicans who slam trial lawyers realize that the Founding Fathers created ONE process for the disposition of civil suits for ALL claims - religious freedom, gun rights, property rights, AND medmal AND product liability claims? And protected the right to a jury trial for ALL civil suits in the 7th Amendment - a right now demanded by Catholic Bishops and charities around the country?

Because sooner or later, if the "tort reform" movement gets its way in Congress to protect health care professionals from negligence, some group might try to "tort reform" away our religious freedom.

House Republicans on the Energy & Commerce Committee have uncovered evidence of closed-door negotiations between major drugmakers and the Obama Administration in connection with the enactment of Obamacare, under which the former promised to back it with $80 billion in revenues in exchange for the Administration's promise to protect the industry in various ways, e.g., oppose the importation of drugs from abroad. It was Crony Capitalism at its worst, and the House E&C Republicans are right to expose and condemn it. I assume other health care-related companies touched by Obamacare made the same kind of deal and look forward to seeing the evidence.

BUT... some of the same Republicans condemning Obamacare Crony Capitalism want to protect the same industry, and all health care-related companies, in federal law by severely limiting awards in medical malpractice and all health care-related lawsuits. This is Tort Reform Crony Capitalism, and it's as bad in principle as Obamacare Crony Capitalism. And they're equally unconstitutional, according to House Republicans' favorite legal experts and many House Republicans.

So House Republican leadership would reward the very same health care associations and companies that gave us Obamacare! WHY?! This is what I can't comprehend about the charge to include a federal medmal bill in Republican "Repeal & Replace" plans. I don't find that chapter in my "Practical Politics 101" textbook!

UPDATE, June 7: I discussed these issues today on the 'What's Up' radio program, broadcast daily on 12 radio stations and on channel 131 of Sirius satellite radio. Download and listen to Segment 1 here and to Segment 2 here.

Only one nationally broadcast radio program regularly supports the right to a jury trial for civil suits, a right protected by the 7th Amendment to the Constitution. It's the 'What's Up' radio program, broadcast daily at various times on twelve radio stations and on Sirius satellite radio on Channel 131, Family Talk Radio, at midnight Eastern time.

Based in Houston, the program is hosted by Terry Lowry, a longtime broadcaster and dedicated Christian who has been involved in conservative causes for years. Terry's broadcasts mix discussions on the political issues, practical advice about life and family, and Christian-oriented spirituality.

But Terry is also dedicated to fighting to protect our constitutional rights, including our right to bring our medical malpractice and other tort claims before a jury of our peers, just as the Founding Fathers intended. Several times a week, Terry discusses the right to a civil jury trial with legal experts and Congressmen such as Professor Randy Barnett and Rep. John Duncan (R-TN), respectively.

I've been honored to be a frequent guest to discuss the need to protect the right to a civil jury trial for lawsuits over the full range of constitutional rights, from medmal claims to religious liberty issues and property rights.

Terry's broadcast on May 30 is a case in point. He broadcast a segment with me about Texas Republican Rep. Louie Gohmert's strong objections to federal tort reform as a violation of states' rights, and another segment focusing on the recent study in the failure of Texas state limits on awards in medmal lawsuits. You can download and listen to Segment 1 here and listen to Segment 2 here.

He then broadcast two segments with Alex Winslow, Executive Director of Texas Watch, a consumer watchdog group, about the history and failure of Texas medmal limits. I consider Alex among the premier experts on the truth underneath the wild claims of success by proponents of that law. You can download and listen to Segment 1 of that interview here, then listen to Segment 2 here.

Then Terry broadcast an interview with an Israeli government official about Iran's nuclear weapons program. That's Terry - he's able to pivot from local to international issues, from constitutional law to foreign affairs, and educate his listeners on all of them. And he's as well-versed on the history of the right to a civil jury trial, from the time of Moses to this year's votes in Congress, as any Member of Congress.

Anyone whose life, business or cause depends on open access to courtrooms and juries should download and listen to Terry Lowry's podcasts on the need to protect the right to a civil jury trial for all causes and cases. And then send the podcasts to your friends to open their minds to the intent of the Founders.

Terry needs and deserves our support, especially in an election year.

"When it comes to the States' tort system, the State court system, it's none of our business unless there is an adequate Federal nexus. That's guided a couple of votes that may have surprised people that I made, but I simply could not support Federal takeover of State tort law."

That was Rep. Louie Gohmert of Texas, who not only talks the talk of limited government under the Constitution and Bill of Rights, but walks the walk. When H.R. 5, the bill to mandate federal limits on awards from all medical malpractice and health care-related lawsuits, was under consideration, he spoke out against it and voted against it on the floor of the U.S. House. Last week, during debate on the defense authorization bill, Rep. Gohmert once again stood up for the rights of states to run their civil justice systems without federal interference from Congress. Here's more from those floor remarks:

"Congress has this power to create the courts, Federal courts. States take care of their own State system. It's one of the reasons, though, that I voted against a couple of bills recently, because medical malpractice reform was being dictated from here in Congress for every State in the country.

I love what Texas did with medical malpractice reform in its State court system, but it's a State court system. I also know that if the Congress decides we need to start dictating to every State what their State court system can or can't do, then when a far more liberal Congress comes in they will be able to say, Look, you so-called "conservative" Republicans dictated to the States what their State tort law should be, so now we're going to dictate to the States what we think it should be, and it ends up being a Federal takeover of something that is entirely a State system."

THAT is a federalist! I hope I have the chance soon to discuss with Rep. Gohmert the latest research on the Texas state medmal law, showing that there was no "hemorrhage of doctors" prior to its imposition and no big increase afterwards. In the meantime, it's great to see this authentic constitutional conservative standing up against the agenda of the medical groups demanding a Washington takeover of state law and a Beltway Cabal that would dictate health care policy from Washington.

While House Republicans consider whether to obey leadership's demands in a dictated health care policy agenda, they might want to consider that no fewer than four budget plans proposed by Republicans honor constitutional rights in all health care-related lawsuits. None of the four would unconstitutionally threaten to close courtrooms through federal interference with the individual and states' rights protected in the 7th and 10th Amendments to the Constitution.

First, the House Republican Study Committee, the largest group of mainstream conservatives in the House, already proposed a budget that attracted over 100 votes on the House floor. Many House Republicans instead the budget proposed by Rep. Paul Ryan, but that plan breaks Ryan's own stated commitment to federalism by enacting federal limits on awards in medical malpractice lawsuits.

Two good budget plans were presented on the floor of the Senate last week. Neither gained enough support to have a full debate and floor vote. But both attracted more votes than the President's own budget plan, and both represent steps forward in the protection of constitutional rights. Senator Mike Lee proposed a budget, with health care policy based upon securing individual freedom and consumer choice instead of government mandates. Senator Lee has consistently demonstrated his commitment to protecting our constitutional rights in his votes and statements against unconstitutional federal tort reform, as I've reported several times here. And Senator Rand Paul's budget plan attempts to balance the budget in five years and begin paying down the national debt in ten years, all without resorting to a federal limit on awards in medical malpractice or other health care-related lawsuits.

Finally, Senator Tom Coburn's "Back to Black" budget plan, now the basis of his new book, "The Debt Bomb," also protects victims' constitutional rights to present their case in court. The Senator consistently opposes federal medmal limits, and has told me several times that "if the feds can take over state tort law, there's no reason to even have states."

House Republicans need not look too far to find options that protect their own promise to uphold constitutional rights. These budget plans, along with Rep. Paul Broun's "OPTION Act" health care plan endorsed by FreedomWorks, present real alternatives to an unconstitutional federal medmal bill.

"That's beyond my pay grade. That's the speaker. They're the ones doing that coordination."

That's how Rep. Joe Pitts, chairman of a powerful health subcommittee in the U.S. House, described how the House GOP majority is designing its future health care policy.

A small cabal of House GOP Members and leadership staff has recently taken the reins of policy formation away from the rest of the House GOP and the conservative base of the party, and is forcing the Members to accept it, whether it's constitutional or not. And it's not. They're copying what Nancy Pelosi did that drove the GOP nuts when Democrats ran the House.

For almost a year, the House GOP paid attention to constitutional principles and avoided crossing the line by not voting on the House floor for H.R. 5. After all, its finest legal experts wrote time and again that federally imposed limits on medical malpractice lawsuits, especially those imposed in H.R. 5, are an unconstitutional abridgement of states' and unconstitutional rights. And many GOP Congressmen listened.

The lineup against H.R. 5 is full of GOP legal superstars: Anti-Obamacare superstar Professor Randy Barnett, Virginia Attorney General Ken Cuccinelli, Federalist Society superstar Professor John Baker, Rob Natelson of the Tenth Amendment Center, Carrie Severing of the Judicial Crisis Network, Hans von Spakovsky of the Heritage Foundation, Professor Ilya Somin of George Mason Law School, and more. Even Ted Frank and Walter Olson, who sharply criticize the plaintiffs' bar, warned the House GOP that H.R. 5 is a bridge too far.

And important conservative political figures and groups joined them in condemning federal interference in state civil justice systems: Sens. Tom Coburn and Mike Lee, the Tea Party Patriots group, Judson Phillips of Tea Party Nation, the National Conference of State Legislators, the Cato Institute, and Reps. Ted Poe, Louie Gohmert, Lee Terry, Morgan Griffith, and many others.

Then, two months ago, House Speaker Boehner and his close lieutenants put the Tea Party in the rear-view mirror. They intentionally moved away from principles of limited government in the name of "practical politics," in order to gain more support from business interests. The new agenda included a cyber-security bill that raises privacy concerns; the reauthorization of the Export-Import Bank (which really angered conservative leaders); and a heavy push for H.R. 5.

The Beltway Cabal has since made it almost impossible for principled GOP Congressmen to vote for the Constitution and against H.R. 5. First, they announced after the House left town that H.R. 5 would be combined with a very attractive bill to repeal the Obamacare "death panels." Then they fixed the rules so hesitant Members had no opportunity to strip unconstitutional federal medmal limits from that combined bill. When that passed, they shoved H.R. 5 into a budget bill, again with no opportunity for conservatives to vote against it on the House floor.

Both times, GOP Members complained to Speaker Boehner's office that they were being forced to compromise constitutional principles - the very basis of their opposition to Obamacare - to support special interest legislation for the very groups that backed the enactment of Obamacare. Both times, the Speaker and his Beltway Cabal shut that opposition down with no floor debate or vote.

Multiple GOP Congressmen voted with the Constitution the first time, even though it meant not voting against Obamacare. I've been told by individual Members and key staff of "heated" conversations beetween Tea Party-side Republicans and leadership staff, but the Beltway Cabal doesn't care. Dissenting Republicans are afraid of losing committee seats and campaign dollars - just what Democrats who disagreed with Pelosi faced.

The Beltway Cabal consists of no more than a dozen GOP House Members. The Speaker and the other three top Republicans in the GOP Conference; the chairman of the Rules Commitee, which sets the terms of debate for bills in the House; two committee and subcommittee chairmen; and two powerful Congressmen who were doctors and are committed to medmal limits at all costs are running the show. It's "the Pelosi Rules," GOP style.

The message to Tea Party backers and average Americans is that when push comes to shove, the Constitution takes a backseat to Crony Capitalism.

UPDATE, May 22: I discussed this in a radio interview on the "What's Up" radio program, hosted by Terry Lowry and broadcast on Sirius Satellite Radio and on 12 FM radio stations. You can listen to Segment 1 here and to Segment 2 here.

Two things, actually.

First, none of the three are proper subjects for the federal government under the Constitution. Neither domestic relations law governing marriage, nor health care, nor tort law are matters enumerated for the federal government.

Powerful groups on the liberal or conservative side ignore the limits of the Constitution in order to change that in each case. Gay marriage advocates want the federal judiciary or Congress to override state marriage laws.

President Obama and Democrats forced the individual insurance mandate down our throats with the assistance of the AMA and health care-related associations, and those same health care associations have enlisted Congressional Republican leaders in an effort to override state tort law by effectively immunizing them from medical malpractice lawsuits.

In each case, the advocates ignore centuries of established common law precedent and the clear writings of the Founding Fathers. Congressional Republican leaders oppose gay marriage and Obamacare, but their own hypocritical campaign for federal limits on medmal lawsuits invites Democrats and gay marriage advocates to do so for their causes.

The second similarity is that truly principled constitutional conservatives and Tea Party-side legal experts recognize that Uncle Sam has no business overriding states' rights in any of these cases.

Ken Cuccinelli, Attorney General of Virginia, gave an interview last August in which he stressed the importance of maintaining a consistent defense of the state' authority over marriage. "The Supreme Court ruled that marriage is not a subject that the federal government can exercise jurisdiction over," he said. "Including the courts."

"Frankly, I think it is worth some consideration for the things that aren't reached by the federal constitution to just leave it to each state... As between the two options, I certainly prefer the states deciding these constitutional questions and I don't mean just the one you raised. I mean all the ones that fall in that gray area of whether or not the federal government can do it. If it is a gray area, the federal government shouldn't be able to do it."

Cuccinelli became nationally known for his lawsuit against Obamacare, and he took a forceful stand against federal tort reform last fall in an opinion piece and during the Republican Presidential debates.

I'm thankful that my state's Attorney General understands the proper role for federal power and won't hesitate to defend our rights in court.

Other Republicans have compromised their self-proclaimed "Constitutional conservative" status by pushing to federalize tort law and calling for a constitutional amendment banning gay marriage, even though most states have already done so through election referenda.

Rep. Michele Bachmann exposed her hypocrisy over states' rights, simultaneously slamming Obamacare while pushing federal medmal limits.

Cuccinelli nailed her on it during a debate, but Rep. Bachmann remains an undaunted flip-flopper on states' rights.

Rick Perry, Rick Santorum, and Rep. Bachmann failed to grasp their own inconsistencies on these issues during the campaign, while Ron Paul remained a true constitutional conservative on all three issues.

A constitutional amendment to define marriage isn't necessary unless the federal judiciary overrsteps the limits of its authority and crushes states' authority over marriage law.

Overstepping constitutional limits brings political consequences. Voters no longer trust Democrats who insist that they can force us to buy a commercial product such as private health insurance, and we want the Supreme Court to declare the mandate unconstitutional.

But Americans also won't easily trust Republicans who proclaim their allegiance to the Constitution and the Bill of Rights, then sell out to business interests in the heat of political campaigns by pushing for tort reform.

Gay marriage advocates who try to shove their interpretation of the Constitution down our throats also face a real backlash from a public sick of excessive federal power in areas reserved for local control.

UPDATE, May 19: I discussed this in a radio interview on the "What's Up" radio program, hosted by Terry Lowry and broadcast on Sirius Satellite Radio and on 12 FM radio stations. You can listen to Segment 1 here and to Segment 2 here.

A hyper-Political Correctness movement is running rampant on our public universities, with taxpayer-funded university bureaucrats and teachers trying to crush the First Amendment rights of students to openly express their faith and conservative political views. Students are reaching out to the top nonprofit pro-religious liberty litigators in America and exercise their God-given right to ask their neighbors and an independent judiciary to stop the universities.

For example, Vanderbilt University suddenly changed its student group recognition policy to demand that faith-based student groups remove any reference to their faith in the selection of group leaders. That's as stupid as telling the football coach to not time high school football recruits in the 40-yard dash before offering them a scholarship. Officials sent an e-mail to one recognized Christian student group, stating that the group's application to keep its recognition was deficient because the group's constitution requires officers to demonstrate a "personal commitment to Jesus Christ." The university demanded that the group eliminate that criterion.

What's wrong with these idiots? Whose business is it of theirs if a Christian, Jewish, or Muslim-based group insists that its officers actually believe in the tenets of the faith upon which that group is based? What do they expect, a Muslim group pick a Christian as the group president? And who made the university God anyway?

This story isn't unusual - universities across America are changing student group recognition policies, or imposing "Codes of Conduct," and purposefully discriminating against and punishing faith-based groups, especially Christian groups.

Time to go to court! The Founding Fathers experienced this type of heavy-handed discrimination against their faith at the hands of civil authorities, so they enabled us to sue the daylights out of anyone who steps on our First Amendment rights. The student groups are turning to the Christian Legal Society, the Alliance Defense Fund, and American Center for Law and Justice, and other faith-based litigation and religious liberty groups. These great organizations know that the civil justice system designed in the Constitution, and the God-given right to a civil jury trial protected in the 7th Amendment, are the protection and accountability system for all other rights enumerated in the Bill of Rights. The Founders used words such as "sacred" and "inviolable" to describe the 7th Amendment in state constitutions and declarations of rights.

And NO Founder wrote at ANY time of limiting or "tort reforming" any Americans right to take a grievance to court, whether the case was about religious liberty, free speech, or the loss of property or personal injury. Neither did the Founders differentiate between personal liberty and property or injury causes of action in their promotion of the civil suit in our Founding Documents.

That's why I don't understand the insistence by too many Republicans, and a few Democrats, that legislated federal limits on medical malpractice lawsuits is allowable under the Constitution and Bill of Rights. No complete, unbiased and accurate reading of the Founders' writings could come to that conclusion.

P.S. As I write, the Tennessee Governor has not committed to signing a bill that would protect the individual freedom of the Vanderbilt University students. Vetoing that bill would make a court case against Vanderbilt inevitable.

It's an article of faith among those who propose federal limits on awards in medical malpractice lawsuits. They always proclaim that the Texas state law limiting such awards resulted in thousands of doctors moving to the state. Examples:

"This last year, 21,000 more physicians practicing medicine in Texas because they know they can do what they love and not be sued." Texas Gov. Rick Perry, August 17, 2011.

"That's why some states, including my home state of Texas, have enacted tort reform to limit the amount of damages that can be awarded for pain and suffering. The result? More than 14,000 doctors have returned to Texas or set up new practices in the state." Rep. Lamar Smith, chairman of the House Judiciary Committee, March 8, 2010.

"Because Texas adopted comprehensive reform in 2003, it now has more obstetricians and emergency physicians and lower medical liability premiums." Rep. Fred Upton, chairman of the House Energy & Commerce Committee, in statement on May 10, 2011.

BUT a new study crushes that claim and endangers one of the key pieces of empirical proof cited over and over again by proponents of unconstitutional federal medical malpractice limits and broader tort reform bills. The study, "Does Tort Reform Affect Physician Supply? Evidence from Texas," concludes that, "After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim. Physician supply was not measurably stunted prior to reform, and did not measurably improve after reform. This is true whether one looks at all patient care physicians in Texas or at high-malpractice-risk specialties."

The authors continue: "There is no evidence that the number of physicians per capita practicing in Texas is larger than it would have been without tort reform. Any effect of tort reform is too small for us to measure, against the background of other, larger forces affecting physician supply, both in Texas and nationally."

The study is so powerful in its presentation of data that Ted Frank, longtime critic of the plaintiffs' bar, concluded that, "I, for one, am going to stop claiming that Texas tort reform increased doctor supply without better data demonstrating that. More study is needed to explain Black/Hyman/Silver's counterintuitive result, and partisans on both sides need to be more conservative with their policy claims." Good enough for me.

This is an enormous break in the tort reform paradigm. It's as important on the empirical side as the legal statements against federal tort reform by libertarians and conservatives such as Randy Barnett, Sens. Tom Coburn and Mike Lee, Rob Natelson, and Tea Party leaders such as Judson Phillips. Just getting to "no clear evidence in the data" strips Big Medicine and its allies of an important rhetorical device in their pursuit of unconstitutional special interest legislation. Now, not only can they not cite any current conservative scholar in favor of H.R. 5, they can't honestly use the "More Docs in Texas" claim.

UPDATE, May 23: I discussed this in a radio interview on the nationally syndicated "What's Up" radio program, hosted by Terry Lowry and broadcast on Sirius Satellite Radio and on 12 FM radio stations. You can listen to Segment 1 here and to Segment 2 here.

Judson Phillips, founder of Tea Party Nation, has once again come to the defense of the 7th Amendment protection given to the right to a civil jury trial in a post on TPN, as follows:

Some conservatives and far too many Republicans treat the Constitution as if it is some great big Chinese buffet. 'I'll have a little of the 1st Amendment. A lot of the 2nd . None of the 7th.'

That is not how the Constitution works. Our founding fathers designed it the way they did for a reason.

Many Republicans and some conservatives are quick to jump on the tort reform bandwagon. 'We hate lawyers and trial lawyers are big Democrat supporters.'

That still does not change the Constitution and what it says.

Some Republicans throw out the expression frivolous lawsuits out like a boogeyman. As with all rants, those who throw it out simple expect their position to be accepted without discussion.

Are there frivolous lawsuits?

To quote Sarah Palin, 'you betcha.'

How many frivolous lawsuits do attorneys file? Very few.

Presenting the actual writings of the Constitution and Bill of Rights and defending them in the face of political inconsistency and hypocrisy is nothing new for Mr. Phillips. While his strident defense of limited government and deep cuts in federal spending have been part of Republican campaigns for the past two years, his criticism of federal tort reform as unconstitutional has been quoted most often by Democrats in the House as a way to remind House Republicans of their self-professed allegience to the 10th Amendment. A few weeks ago, I witnessed Rep. Maxine Waters, who is not exactly enamored with Tea Party activists, quote Judson during the Judiciary Committee's consideration of federal medmal limits, while he was actually in the audience. Quite a sight indeed.

Judson Phillips represents the best of the Tea Party, willing to tell the truth even when it's not conventional wisdom. We need more Americans of all political persuasions to recognize and fight for the right that our founders called "sacred" and "inviolable."

I'm happy to see fellow Catholics wade into the public policy arena and inject our Church's teachings on moral responsibility and social justice into the debate on legislation. I haven't done so explicitly here, but my faith underlies much of what I write on the need to protect the right to a civil jury trial for religious liberty and pro-life lawsuits.

So when Rep. Paul Ryan said in an interview that the Catholic principle of subsidiarity underlies some of his proposals in the FY 2013 federal budget, I respected his attempt as a sincerely personal application of our common faith. Obviously, other Catholics, including the U.S. Conference of Catholic Bishops, disagree with him on the application of that principle, but I'm glad we're having the discussion on that plane.

But if Rep. Ryan seriously believes, as he said in the interview, that subsidiarity "is really federalism, meaning government closest to the people governs best," then he must apply it consistently. And that requires that he remove any current reference to federal limits on medical malpractice lawsuits, including caps on noneconomic damages, from his budget proposals. Rep. Ryan's favorite legal experts on federalism have been writing for over a year that federal limits on civil suits are as unconstitutional an infringement on states' and individual rights as the individual mandate in Obamacare. If, as one conservative commentator says, "A humane government is one that leaves decisions closest to the people," then surely the regulation of state courtrooms is not a matter for Congress to decide. The budget proposed by the conservative House Republican Study Committee doesn't include any federal limits on civil jury trials - I guess that makes it "more Catholic."

And please don't interpret this piece as an implicit acceptance of state-imposed limits on the right to a civil jury trial. I don't believe that the Founding Fathers meant for a right that they called "sacred" and "inviolable" to be limited to civil suits filed in federal courts, while enabling state legislatures to close courtroom doors anytime they see fit. But that's a subject for a different post.

But if Rep. Ryan wants to reflect Catholic social teachings in his proposed budget, then he needs to do so without infringing on that "sacred" and "inviolable" right at the federal level.

It's Federal Reform Quiz Time! House Republicans are pushing H.R. 5, the bill to impose federal limits on awards in medical malpractice lawsuits, despite universal opposition from conservative legal experts, Tea Party leaders, and conservative Congressmen and Senators. Let's see how closely you've been following the debates on this bill on the House floor and in committees.

1. Which Congressman introduced the opposition of Tea Party Nation founder Judson Phillips to H.R. 5 on the House floor?
A. John Boehner (Republican)
B. Eric Cantor (Republican)
C. David Dreier (Republican)
D. Maxine Waters (Democrat)

2. Which Congressman introduced Ronald Reagan's quote that tort law belongs to the states into the record on the House floor?
A. Phil Gingrey (Republican)
B. Dan Lungren (Republican)
C. Joe Pitts (Republican)
D. Sheila Jackson Lee (Democrat)

3. Which Congressman introduced the opposition to H.R. 5 of the Heritage Foundation, Randy Barnett, Rob Natelson, Ken Cuccinelli, Sens. Tom Coburn and Mike Lee, and other hardcore conservatives into the record?
A. Michelle Bachmann (Republican)
B. Fred Upton (Republican)
C. Bob Goodlatte (Republican)
D. John Conyers (Democrat)

4. Which Congressman introduced, on the House floor, the references in the Declaration of Independence and Seventh Amendment to the Constitution to protect the right to a civil jury trial?
A. Lamar Smith (Republican)
B. Steve Chabot (Republican)
C. Chuck Fleischmann (Republican)
D. Bruce Braley (Democrat)

5. In 65 printed pages recording 8 hours of debate on the floor, and in 4 hours of debate in two committees, which Founding Father and current constitutional scholar did the proponents of H.R. 5 cite or quote most often?
A. James Madison and Ted Frank
B. Thomas Jefferson and Walter Olson
C. John Adams and Hans Von Spakovsky
D. None at any time

"D" is the answer for all five questions. The positions of the conservative legal theorists and politicians named in questions 1 through 3, and references in Founding Documents to the right to a civil jury trial, were introduced entirely by Democrats.

The proponents of H.R. 5 have not referred to ANY Founding Father or current constitutional scholar throughout any of the debates on that bill. Each of the Founding Fathers named in question 5 explicitly protected that right, and each of the scholars named in that question opposed H.R. 5.

There was no constitutional authority, support or basis for the bill when it was passed by the House. No cite in the bill to the Constitution; no quote of any Founding Father; NOTHING.

There are no winners in this quiz. When the Constitution is ignored, all of us lose.

This week, House GOP leaders and two committee chairmen are forcing their Members to vote for a federal tort reform bill that their own favorite legal experts and many Republicans in Congress have said is unconstitutional. The leaders and the chairmen of the House Judiciary and the Energy & Commerce committees are forcing votes for H.R. 5, the bill to impose federal limits on awards in medical malpractice lawsuits, as a way to offset potential budget cuts of billions of dollars in spending over the next ten years. Eventually we'll see H.R. 5 on the House floor again, for the second time in two months, with House Republicans who oppose it on constitutional grounds forced to vote for it under arm-twisting by leadership.

Proponents of H.R. 5 cite an estimate by the Congressional Budget Office that enacting H.R. 5 will save somewhere between $40 and 60 billion dollars, depending on the version. I've written before about the CBO's many failures at ten-year budgeting and on its flawed methodology for calculating savings from H.R. 5. Recently, CBO admitted that its estimate of the costs of implementing Obama are was wrong by a whopping 100%. Republicans know this and cite the CBO's failures in Obamacare, yet are using its H.R. 5 estimate as a basis for pushing the bill in a budget exercise.

This exercise doesn't write an actual law and won't be even considered by the Senate. It won't save a dime in federal spending. And you won't see House Republican leaders use the alternative health care budget proposed by the Republican Study Committee, the group of over 100 conservative House Republicans, which doesn't include any tort reform. Neither will they offer Rep. Paul Broun's "OPTION Act," which is endorsed by the conservative FreedomWorks group in part because it doesn't have a "federalism problem" (their words).

All this is just a lust for cash. It's solely an exercise in bashing trial lawyers to fill a budget hole and to attract campaign contributions from "Big Medicine." Constitutional rights and the expert opinions of the Randy Barnetts of the world don't matter to the GOP Establishment forcing Members into the vote by not offering real health care reform. The so-called savings will be used to prevent real cuts in wasteful programs.

The final question is whether Tea Party activists, whom the leaders need to keep their positions, will see through this charade and withhold their help this November in enough races to at least send a signal. That awareness should be our next step.

Columnist Timothy Carney of the Washington Examiner, who has a strong following among conservatives, has followed the "K Street Republicans vs. Tea Party" for several years and wrote again about the conflict last week. And Carney identifies some of the practical points of conflict between the two groups: "The GOP establishment rallies industry donors behind the Republican seen as stronger in November. A deeper reason: The revolving-door clique of K Street and Capitol Hill operatives needs Republicans elected to upper chamber who are likely to play ball."

That's all true, but it's not complete. Industry-side Republicans just see the world differently than people like me and Tea Party allies, such as Judson Phillips or Jenny Beth Martin, who lead and populate the grassroots Tea Party groups, or Rob Natelson and Randy Barnett, who write about the constitutional bases for rolling back Obamacare and limiting the size of the federal government. The pro-Wall Street or U.S. Chamber types, such as the Koch brothers' groups and lobbyists, don't really see the imperative to radically reduce the size and scope of the mechanisms created over the past 50 years to regulate the everyday activities of the American people. They would be perfectly satisfied if the EPA, CPSC, and FDA were forever oriented to be pro-business. They don't care about the historical or constitutional arguments by the Founding Fathers for the right to a civil jury trial. That side of the Republican Party "talks the talk" of limited government but actually fights for federal pre-emption of state laws and courtrooms in almost every aspect of commerce, from products liability law to medical malpractice lawsuits to financial services regulation. That's the difference I see. I'm as pro-business as any of the Kochs towards taxes (too high), overt federal regulation that kills job creation (too much), Obamacare (the worst) and so on. We just fundamentally see the role of the civil jury trial and state courtrooms very differently. The Seventh and Tenth Amendments never enter into their discussions. That's why they argue for H.R. 5, a federal medical malpractice bill, with no citation to any recent constitutional scholarship, while I can point to the writings of numerous respected scholars and like-minded Republicans who know that bill is unconstitutional.

And not all politicians or groups who proclaim themselves as "Tea Party" are really Tea Partiers. The Club for Growth, one such "Tea Party group" named in the Carney article, has asked prospective candidates for their views on federal tort reform and, I assume is for that concept, regardless of its unconstitutionality. Numerous Republican politicians who pass themselves off as "Tea Partiers" or "constitutional conservatives," starting with many Congressional Republican leaders, are pro-federal tort reform in order to bash trial lawyers and collect campaign contributions from business. It's an old habit that dies hard.

Fortunately a growing number of Republican politicians, at all levels of government, are recognizing the reality that federal power isn't unlimited and all ten amendments in the Bill of Rights are worth protecting in law. I've personally seen a number of Republican politicians take a step back from the tort reform agenda and re-evaluate their position upon reading statements by experts they admire, such as Randy Barnett or Sens. Coburn and Lee. The mission for those of us seeking constitutional consistency inside the Republican Party is to persevere, support and convert those open to rational discussion, and recruit candidates to support limited government and constitutional rights before they become committed otherwise. And we have to differentiate between the phony and the real constitutional conservatives.