The new House GOP Majority is set to repeal ObamaCare, which is fine with me, and try to save health care spending through some amorphous medical malpractice “reform.” Here is the short bill that the House will pass on Friday to instruct House committees to look for those “savings.” BUT WAIT, on December 17, they also promised to cite a “Constitutional authority” for each bill, and advised the Members to seek help from certain named think tanks, including some top conservative groups. But where will they find the authority for medmal reform, which abrogates the 7th Amendment right to civil jury trials and the states’ rights protected by the 10th Amendment?
It’s a good guess that the “conservative” organizations cited in the December 17 memo will point to the Supremacy and Commerce Clauses as their source for federal medmal reform of any kind. I wrote on December 6 that two top Republican legal experts, including one at the Cato Institute, cited those two clauses at a Federalist Society panel as rationale for the federal preemption of state jury decisions in medical device and drug cases. But they can’t hide their inconsistency. As I wrote on December 14, the ObamaCare decision exposed the Cato Institute as hopelessly inconsistent to the point of absolute hypocrisy. One Cato legal expert condemns the use of the Commerce Clause as a basis for the ObamaCare takeover of health care, while another Cato legal expert defends the Commerce Clause as the basis for tort reform through federal preemption of state jury decisions in drug and medical device cases. Is that really the type of guidance that House leaders want to give their new committee chairmen?
Other organizations cited in the December 17 memo are no better; on October 6, I documented the compromise of many conservative groups on Constitutionally protected rights. None of the mainstream conservative groups are willing to defend the 7th Amendment, and they also don’t appreciate how federal preemption of state jury decisions neuters the 10th Amendment, as well as the 7th Amendment.
As I wrote on December 14, the co-“Father of the Bill of Rights,” George Mason, knew 222 years ago that some group would eventually try to jam Supremacy Clause-driven federal law down our throats, and he insisted that the ultimate power of the Supremacy Clause be limited by the Bill of Rights. Will Tea Partiers accept the rollover of the 7th and 10th Amendments by the new majority, or will it speak up? Will they realize that compromising the right to sue for medical malpractice would also compromise the right to sue to protect religious liberty; protect the unborn and womens’ health; fight bureaucratic power; and promote other conservative causes. WE THE PEOPLE cannot allow any Congress to use the Supremacy and Commerce Clauses to gut our unalienable rights.