Rob Natelson, one of the leading Constitutional scholars of the Tea Party movement, declared on Tuesday that “H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments.” That bill, as I’ve described numerous times here, would place new federal limits on lawsuits filed against a broad range of health care-related companies, including doctors, hospitals, drug & device companies, insurance companies, and nursing homes. Professor Natelson is an expert on the Founding Era; a former Republican candidate for Governor of Montana; and now Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Colorado, a non-partisan, free-market-oriented public policy research organization. Writing in his personal capacity to the Chairmen and ranking Members of the House Judiciary and Energy & Commerce Committees, he cited the Founders’ writings for concluding that (1) civil actions in state and federal courts are not “commerce” under the Commerce Clause; and (2) H.R. 5 is not justified under the Necessary and Proper Clause. Moreover, according to Professor Natelson, the proper interpretation of the Commerce Clause excludes “health laws of every description,” a phrase used by Supreme Court Chief Justice John Marshall in the landmark case of Gibbons v. Ogden, 22 U.S. 1 (1824). Finally, Professor Natelson asserts that the section of H.R. 5 which purportedly protects states from pre-emption “grants protection only when the state undertakes policy choices preferred by Congress.” He describes that section as “more in the nature of an insult to the states than a protection of federalism.”
Professor Natelson also posted the letter on The Electric City Weblog in an entry titled, Yet MORE disregard for the Constitution — this time from Republicans. You can download Professor Natelson’s letter from that site (4.6 MB Acrobat). I hope you will disseminate his letter widely.