Constitutional Conservatives: Federal Tort Reform Violates States’ Rights and the 10th Amendment

A variety of news outlets have reported that next week the U.S. House of Representatives will vote on a bill (H.R. 5) that would decimate the legal rights of patients injured by medical negligence, nursing home abuse, or defective drugs and devices.  While many Democrats have announced their opposition to the bill, there is also a chorus of Republican elected officials and conservative scholars that see this bill as a massive federal government overreach.  Below are some of the top conservative voices leading the charge against federal medical liability legislation.

Ken Cuccinelli, Virginia Attorney General:

Senate Bill 197 takes an approach that implies “Washington knows best” while trampling states’ authority and the 10th Amendment. 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. I have little doubt that the senators who brought us S. 197 oppose the use of the commerce clause to compel individuals to buy health insurance. Yet they have no qualms about dictating to state court judges how they are to conduct trials in state lawsuits. How does this sort of constitutional disconnect happen?

And if [S.187] 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).

-Washington Post Op-ed, Keeping the feds at bay, 10/28/11


Randy Barnett, constitution law professor at Georgetown Law Center and senior fellow at the Cato Institute:

This bill [H.R.5] alters state medical malpractice rules by, for example, placing caps on noneconomic damages. But tort law — the body of rules by which persons seek damages for injuries to their person and property — have always been regulated by states, not the federal government. Tort law is at the heart of what is called the ‘police power’ of states.  What constitutional authority did the supporters of the bill rely upon to justify interfering with state authority in this way?

Constitutional law professors have long cynically ridiculed a ‘fair-weather federalism’ that is abandoned whenever it is inconvenient to someone’s policy preferences. If House Republicans ignore their Pledge to America to assess the Constitution themselves, and invade the powers ‘reserved to the states’ as affirmed by the Tenth Amendment, they will prove my colleagues right.

-Washington Examiner Op-ed, Tort reform and the GOP's fair-weather federalism, 5/22/11


Senator Tom Coburn (R-OK):

What I worry about as a fiscal conservative and also as a constitutionalist, is that the first time we put our nose under the tent to start telling Oklahoma or Ohio or Michigan what their tort law will be, where will it stop? In other words, if we can expand the commerce clause enough to mandate that you have to buy health insurance, then I'm sure nobody would object to saying we can extend it enough to say what your tort law is going to be. Then we are going to have the federal government telling us what our tort laws are going to be in healthcare, and what about our tort laws in everything else? Where does it stop?

One of the things our founders believed was that our 13 separate states could actually have some unique identity under this constitution and maybe do things differently, and I think we ought to allow that process to continue as long as we are protecting human and civil rights.

-MedScape Today, The Sustainable Growth Rate -- What Happens Now?, 6/30/11


Congressman Lee Terry (R-TX):

If you’re a true believer in the 10th Amendment, then why are we not allowing the states to continue to create their own laws and decide what’s in their best interest for their residents?

-Congressional Quarterly, House GOP Weighs Curbs on Malpractice Suits to Offset IPAB Repeal Cost, 3/9/12


Congressman Ted Poe (R-TX):

The question is: does the federal government have the authority under the Commerce Clause to override state law on liability caps? I believe that each individual state should allow the people of that state to decide – not the federal government. … If the people of a particular state don’t want liability caps, that’s their prerogative under the 10th Amendment....but I have concerns with the current bill as written.

-Politico Pro, Tort reform bill hits speed bump, 2/10/11


Congressman Louie Gohmert (R-TX):

The right of the states for self-determination is enshrined in the 10th Amendment … I am reticent to support Congress imposing its will on the states by dictating new state law in their own state courts.

-Politico Pro, Tort reform bill hits speed bump, 2/10/11


Congressman Ron Paul (R-TX):

The federal government shouldn’t be involved.  It's a state matter; tort law is a state matter.

-FOX News GOP Primary Debate, 5/5/11


Congressman John Duncan (R-TN):

I have faith in the people — I have faith in the jury system. It’s one of the most important elements of our freedom, and it was so recognized in the Constitution, was felt to be so important, it was specifically put into the Constitution in the Seventh Amendment. And I’ll tell you, it’s a very dangerous thing to take away rights like that from the people.

-What’s Up Radio with Terry Lowry, 4/11/11


Senator Mike Lee (R-UT) on tort reform:

Congress needs to be very careful when it enters into a uniquely state law area like tort. So tort reform needs to be undertaken very carefully insofar as it’s done at the federal level.

-Think Progress, GOP Sen. Mike Lee Calls Part Of GOP ‘Jobs’ Bill ‘Constitutionally Problematic,’ 10/24/11


Judson Phillips, founder of Tea Party Nation:

Some conservatives complain opposing unconstitutional tort reform rewards the trial lawyers. The trial lawyers may benefit from stopping unconstitutional tort reform, but we fight to protect the Constitution. In this case, the trial lawyers are with us supporting the 10th Amendment., 3/13/12


Robert Natelson, senior fellow at the Independence Institute:

To be blunt: H.R. 5 flagrantly contravenes the limitations the Constitution places upon Congress, and therefore violates both the Ninth and Tenth Amendments. ... During the debate over ratification of the Constitution, leading Founders specifically represented that the subject-matter of H.R. 5 was outside federal enumerated powers and reserved to the states.

-Letter to Chairmen and Ranking Members of House Judiciary and Energy & Commerce Committees, 4/5/11


John Baker, Catholic University law professor:

House Republicans hope to nationalize medical malpractice law, which is traditionally a matter of state tort law, by passing H.R. 5, a bill that would wipe out all state medical malpractice laws and complete the nationalization of healthcare. Passage of H.R. 5 would undercut arguments that Obamacare is unconstitutional.

-The Daily Caller, National medical malpractice reform could boost Obamacare, 6/22/11


Carrie Severino, chief counsel and policy director at the Judicial Crisis Network:

Among other things, S.197 sets a statute of limitations for claims, caps damages and creates standards for expert witnesses...but they are not within the constitutional powers granted to the federal government for the very same reasons Obamacare is not.

The law’s own justification for its constitutional authority should be chilling to anyone committed to limited federal power. The bill’s findings state that health care and health insurance are industries that 'affect interstate commerce,' and conclude that Congress therefore has Commerce Clause power to regulate them — even when it involves an in-state transaction between a doctor and patient, governed by in-state medical malpractice laws.

-National Review Online, Senate GOP Jobs Bill Contains a Landmine for Federalism, 10/18/11