Oops! House ‘Conservative’ Budget Includes Three Unconstitutional Provisions in Just One Sentence

Some people, it seems, are a bit slow.

Are House conservatives serious about following the Constitution? Apparently not, if the unconstitutional provisions in the latest House ‘conservative’ budget are any indication—three of them in just one sentence.

The House is preparing to vote tomorrow on a fiscal year 2016 budget resolution. The GOP leadership’s plan to balance the budget in ten years would, as a general matter, be an improvement over current law, which is basically ‘trillion-dollar deficits as far as the eye can see.’

But the ‘conservative alternative’ to the leadership plan, offered by the Republican Study Committee (RSC), contains a number of unconstitutional provisions, making it arguably the less ‘conservative’ of the two options.

A budget resolution is important. Although technically non-binding, it’s a formal statement of policy, and one that guides and affects almost every other bill considered in the chamber that passes it. And when it includes policies that run afoul of the Constitution, as the current RSC alternative does, well, anyone sworn to uphold the Constitution should obviously not vote for it.

The RSC budget plan, which will be offered as an ‘amendment in the nature of a substitute’ to the leadership’s plan, manages, as I say, to pack three unconstitutional policies into just one sentence:

It is the policy of this resolution that the President’s health care law must not only be repealed, but also replaced by enacting the American Health Care Reform Act. (Emphasis added.)

Those last few words are the problem. The American Health Care Reform Act is a comprehensive health care reform proposal introduced last Congress by Rep. Phil Roe, M.D. (R-Tennessee), and endorsed by RSC as its official ‘Obamacare replacement’ plan. It is in many respects a good package, with a ton of cosponsors. It has yet to receive a vote, but if the House were to pass the sentence quoted above, it would obviously take a giant leap down the road to enactment. Alas, among other things, the bill would:

  1. Prohibit health insurance companies from excluding anyone with preexisting-conditions, if he or she has maintained ‘continuous coverage.’
  2. Permit the purchase of health insurance ‘across state lines.’
  3. Impose federal rules on state courts in the area of medical malpractice law.

These reforms all sound nice, and poll well, but violate the U.S. Constitution. They exceed the limits on federal power imposed by the American people through that Constitution.

Republicans deserve three cheers for working to repeal Obamacare. But the federal government has no warrant to regulate or subsidize health insurance outside the context of federal employment. Indeed, the whole area of health care is left to the states under the Tenth Amendment. Likewise, the areas of education, welfare, and many others. The states are perfectly capable of handling these matters. They got this.

So the only thing Obamacare should be replaced with is … nothing … except, that is, for a return of health care regulation to the states.

1. Continuous Coverage. While the Republican ‘continuous coverage’ mandate is certainly better than Obamacare’s preexisting-conditions exclusions ban and other mandates, it’s still a mandate that drives up costs; and it is still beyond Congress’s authority to enact. It is ‘doing the wrong thing in a less-worse way.’

2. Interstate Purchase. The idea of enacting a federal ‘across state lines’ bill is extremely popular, but, as I’ve explained elsewhere, is unnecessary and based on false assumptions, namely, that private health-insurance contracts are a form of ‘interstate commerce’ in the constitutional sense, and that Congress has broad power under the Commerce Clause to regulate any ‘activity’ that ‘affects’ the national economy. Rather than expanding federal jurisdiction further, as ‘across state lines’ bills clearly do, we should seek to facilitate the harmonization of state-level insurance regulations by means of an existing voluntary interstate compact.

3. Medical Malpractice. The medical malpractice provision is particularly blatant in its breach of the federal Constitution, dictating to state courts in great detail how to handle malpractice lawsuits, including capping damages and regulating attorney’s fees. Where do the feds get the power to reform state courts? Certainly not in the U.S. Constitution, which protects citizens’ access to jury trials but doesn’t authorize Congress to regulate such trials at the state level. Many states have reformed their medical liability systems quite successfully. Once again, the states got this.

Roe’s med-mal package isn’t just unconstitutional, it’s cronyist. The American Medical Association and Chamber of Commerce are strongly supporting it in hopes of weakening their mutual enemy, the trial lawyer lobby. Republicans and Democrats line up on opposing sides of this old fight—Republicans with business, Democrats with plaintiffs’ attorneys—for their own selfish reasons. It’s basically special-interest legislation colored by partisan passion.

Last week, House Budget Committee Republicans, led by chairman Tom Price, M.D. (R-Georgia), released a p.r. video that declared:

Washington doesn’t have all the answers, and Congress should be humble enough to admit that. Our budget will respect the principle of federalism by returning authority to state and local leaders, so they have the flexibility to better serve their unique communities.

Sound observations—promptly ignored by the RSC ‘conservatives.’

Are conservatives serious about the Constitution? If the House passes the RSC budget, as currently written, the answer will be No.

Posted: March 24, 2015.

Author: Dean Clancy.


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