Is Paul Ryan a FINO?

A ‘federalist in name only’?

Next week Speaker Paul Ryan plans to ask the House a vote on a bill to nationalize medical malpractice law.

If that sounds pretty unconservative—you’re right.

The move comes just weeks after the Ryan-led House GOP abandoned its longstanding Obamacare repeal pledge.

Apparently one federal health care takeover was not enough.

The GOP leaders’ “med-mal” bill, H.R.1215, is universally opposed by Democrats, divides Republicans, and almost certainly cannot pass the Senate.

It is also publicly opposed by:

So why force a vote on it? Most likely, just to show the flag for certain favored interests, like the physicians lobbies and the chamber of commerce—and of course to needle the trial lawyers.

What does the bill do? It contains an array of national reforms, including caps on damage awards, limits on lawyer fees, new hurdles to filing medical injury claims, and higher burdens of proof for proving such claims.

The purpose, it seems, is to make it harder for patients to get into court, harder for them to win there, and harder for those who do win to obtain compensation.

All in the name of reducing health care costs.

Why are so many people opposed? Probably because the thing is unnecessary, unconstitutional, and, perhaps for some patients, harmful.

While some of the proposed reforms strike me as defensible—who could oppose capping lawyers’ fees?—the projected cost savings are likely overblown. Experts generally agree that costs attributable to excessive jury awards and defensive medicine are in the vicinity of 2 to 3 percent of national health spending.

As for the $5 billion a year or so in taxpayer savings that the Congressional Budget Office predicts the bill would produce, it’s almost certainly overstated, because it is based on out-of-date research.

But the deeper problem with the bill is legal. It may seem shockingly unfashionable to say it, but Congress has no power to regulate local jury trials in civil cases. None. That power is reserved to the states under Ninth and Tenth Amendments, and arguably the Seventh.

Individual states, of course, can reform their own tort systems at any time. Many have done so.

The “Protecting Access to Care Act,” as the bill is dubbed, is premised on an expansive interpretation of the Constitution’s Commerce Clause. It’s the sort of unfettered New Deal interpretation we usually hear from Democrats, and which Republicans usually denounce.

If that sounds a bit hypocritical?—you’re right.

Happily, a few principled Republicans are saying no. It would take only a couple of dozen GOP dissidents to kill the bill. Several members aligned with the House Freedom Caucus have already announced their opposition.

Two of the these, Ted Poe and Louie Gohmert, both of Texas, and both of whom are former judges, helped kill an earlier version of the bill last year in the House Judiciary Committee. More recently, conservatives came within an ace of killing it a second time, only to be thwarted by the unfortunate absence of Judge Gohmert at the crucial moment. The bill survived by one vote.

GOP leaders claim the bill is justified by the Commerce Clause, which exists (in this telling) to enable Congress to promote “a robust national economy.”

Their argument runs as follows: Since some states allow “excessive” medical tort liability, and since such liability impedes the movement of doctors across state lines in national labor markets, therefore Congress may use its commerce power to overwrite state court rules with uniform national ones.

If that seems a bit tortured to you?—ditto!

In reality, there is no evidence that the movements of physicians in interstate labor markets are impeded by state tort rules. The reports, for example, of a surge in physician supply in Texas (in the wake of its imposing damage caps) are, to put it politely, overblown.

And by the way, when did doctors become “articles of commerce”?

At the risk of over-generalizing, the Commerce Clause applies to things, not people. As Georgetown Law professor Randy Barnett and other scholars have shown, Congress’s commerce power exists, not to promote a “robust national economy,” but rather for the more limited purpose of removing barriers to interstate trade and exchanges of goods.

In the 1780s the term “to regulate commerce” was a widely understood, clearly defined term of art. According to originalist historian Robert G. Natelson:

To “regulate commerce” was to supervise imports and exports, control money and other weights and measures, oversee transportation, and administer the “law merchant”—that is, the law governing mercantile trade, markets and fairs, cargo insurance, and commercial finance. Governance of other activities… was, therefore, outside federal jurisdiction. … [S]tate governments retained exclusive and plenary authority over such subjects as torts, contracts, agency, property, municipal law, religion, family relations, and local business law. [Emphasis added.]

The Founders actually discussed the question of state court autonomy during the ratification debates, and both sides understood the regulation of “private justice between the citizens of the same State” (to quote Hamilton in Federalist 23) to be a reserved power of the states. Madison and Marshall confirmed this understanding at the Virginia state ratifying convention. Other founders echoed it, in speeches, letters, pamphlets, and newspaper columns. Prof. Natelson again:

During the ratification debates, supporters of the Constitution repeatedly … emphasized that the establishment and procedures of state courts would remain immune from federal interference, as would most of the substantive law those courts administered. Tort law, for example, was to remain almost exclusively a state affair. [Emphasis added.] Those representations are authoritative evidence of the ratifiers’ understanding; without them it is doubtful the instrument would have been adopted.

Why were the Founders so zealous about protecting state courts? To preserve the ancient right of trial by jury (specifically, a jury “of the vicinage,” meaning local citizens acting under local rules), which they cherished as a salutary check, in civil as well as criminal cases, on government power—a bulwark of liberty.

Question: Whatever happened to the old Republican commitment to federalism and “states’ rights”?

Answer: Beats me!

On the one hand, Speaker Ryan and colleagues would high-handedly nullify provisions of state constitutions (sovereign acts of the people) in at least 18 states. (If that seems pretty arrogant—I agree.)

On the other hand, Speaker Ryan seems to genuinely cherish federalism. For example, just last month, in announcing a new “task force on intergovernmental relations,” he declared:

Federalism is not a Republican or Democrat principle, but an American principle — and one that is integral to a thriving culture and economy. But [the Speaker lamented,] in recent years, the principle of federalism has been slowly chipped away at by an overzealous federal government.

Indeed.

And that’s a perfect reason why, Mr. Speaker, you and your colleagues should shelve this unnecessary, unconstitutional, and unconservative bill.

Dean Clancy, a former senior official in the White House and Congress, writes on U.S. health reform, budget, and constitutional issues. Follow him at deanclancy.com or on twitter @deanclancy.


[Originally published at The American Spectator, June 9, 2017. @amspectator. Republished at deanclancy.com.]

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