It’s a stunning betrayal of all those hardworking, pro-Constitution Americans who gave U.S. House Republicans their majority.
That’s how Rob Natelson, premier constitutional scholar and past Republican candidate, yesterday described the plan concocted by House GOP leaders to force House Republicans to vote for either a bill crushing states’ rights or to affirm a key section of the equally unconstitutional Obamacare health care law. After the House adjourned last week, Speaker Boehner and Majority Leader Cantor announced that they would push Members to vote for H.R. 5, a bill mandating sweeping a federal takeover of all medical malpractice lawsuits. That bill has been on the shelf for months, thanks to strong conservative opposition. So to make it extremely difficult for GOP Congressmen to oppose it now, Boehner and Cantor attached a very attractive Obamacare repeal bill to H.R. 5. The result is the Hobbesian choice as described succinctly by Rob Natelson: If Republicans vote “aye,” they get unconstitutional tort reform. If they vote “no,” then they’re retaining an unconstitutional part of Obamacare.
Mr. Natelson, a former law professor at the University of Montana, has made a national reputation in constitutional scholarship for identifying the early writings and letters of the Founding Fathers. He has been warning Republicans to avoid H.R. 5 for almost a year. Once again, he takes dead aim at it on the Tenth Amendment Center website:
Although promoted as “medical malpractice reform,” the measure is actually a big step toward federal control of state court systems. Essentially, it’s a lengthy set of mandates telling state and federal judges how to run their own courts whenever they deal with any health-care-related personal injury cases… This measure tells state judges and legislatures what damages they can allow, when they can allow them, how to instruct their juries, what the time period for bringing suit must be, etc. etc. One section beginning with the words “The provisions governing health care lawsuits set forth in this title preempt . . . State law” is given the Orwellian title, “State Flexibility and Protection of States’ Rights.”
Mr. Natelson’s new blast at the plan to push H.R. 5 was joined yesterday by Prof. Ilya Somin of the George Mason Law School, who criticized House leaders on the legal blog, “Volokh Conspiracy.”
“It is indeed true that I have argued that federally mandated tort reform is both constitutionally suspect and largely unnecessary, because interjurisdictional competition gives states strong incentives to reign in their tort lawsuits on their own, as many have already done. House Republicans’ support for federal tort reform calls into question the genuineness of the GOP’s commitment to respecting constitutional limits on federal power.”
Mr. Natelson also slams the hypocrisy of the House GOP leaders for basing their plan to take over state courts on the same constitutional justification as Obamacare:
“How do its sponsors justify this under the Constitution? The same way the national health care zealots justify Obamacare: The Constitution gives Congress power to regulate interstate commerce, so Congress may regulate everything that “affects” commerce, presumably including breathing. Of course, this justification is bogus. When the Constitution was being debated, its supporters emphasized that personal injury law within state boundaries would be a state concern. And although the modern Supreme Court has smudged constitutional boundaries a good deal, it has never authorized congressional micro-meddling of state judicial systems. On the contrary, the Supreme Court has ruled repeatedly that states and state courts are constitutionally free of most federal ‘commandeering.’
These two respected conservative scholars join the National Conference of State Legislators in opposing H.R. 5.
NOTE: In his post, Prof. Somin comments on my characterization of his positions in my post yesterday about Ted Frank’s and Walter Olson’s positions on H.R. 5. I certainly did not intend to refer incorrectly to Prof. Somin and have amended that post accordingly.