These Leading Conservatives Oppose Federal ‘Med Mal’ Reform

They’re the opposite of FINOs (federalists in name only).

The other day I came across a collection of quotes by leading conservative, libertarian, and federalist voices in opposition to federal medical liability reforms.

What a breath of fresh air! These leading scholars and thinkers all take the correct, and principled, position that the Tenth Amendment precludes such legislation. They reject the ‘Chamber of Commerce’ Republican orthodoxy which holds that Congress knows best and should impose federal med-mal reform on the states, even to the point of overwriting some very good state liability reforms.

I hereby reprint these quotes for the public’s benefit. (Note: I’ll add more, as I find them.) Enjoy.

Sen. Mike Lee (R-UT), commenting on the federal med-mal reform section in a 2011 Senate Republican jobs bill: “There was one portion of this Republican jobs package that would have told state courts, applying state law, reviewing state causes of action, that they were subject to certain limits, all in the name of interstate commerce; all because these things, like everything else, have a substantial effect on interstate commerce. I wanted to vote for the bill. Were I a member of the state legislature in the State of Utah, I would have voted for that kind of tort reform. But I couldn’t do it, because it’s not within my power.”

Prof. Randy Barnett (Georgetown University Law School), on the same bill: “Now Senate Republicans are emulating their colleagues in the House by including medical malpractice reform as part of their new ‘jobs’ bill… Senate Republicans are claiming that Congress has power over the judiciary of the states because state courts are an activity that ‘affect[s] commerce.’ With friends like these, constitutional federalism does not need enemies. Can we coin a new pejorative, FINO: ‘Federalists in Name Only’?”

Ken Cuccinelli (former Virginia Attorney General), commenting on a section in a 2011 Senate Republican jobs bill: “With Senate Bill 197—legislation that would have the federal government dictate how state judges are to try medical malpractice cases and cap what state courts may award—several Republican senators have reminded us that federal impositions on states that run contrary to the U.S. Constitution and to the spirit of federalism have never been the sole prerogative of just Democrats.”

Carrie Severino (Judicial Crisis Network), on the same bill: “Unfortunately, the bill would also enact S.197, ‘The Medical Care Access Protection Act.’ Among other things, S.197 sets a statute of limitations for claims, caps damages and creates standards for expert witnesses. These may sound like great ideas, 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.“

Ramesh Ponnuru (conservative pundit): “And medical malpractice reform, as popular as it is among Republicans, shouldn’t be done at the federal level. Medical torts have traditionally been regulated by states, and states have the incentive to set their policies on it the right way—because their residents will pay the price if they don’t.”

Dean Clancy (conservative pundit): “There’s neither a legal nor a practical justification for federal medical malpractice reform. States have this. They can reform their tort systems, and many have done so, with success.”

Prof. Ilya Somin (George Mason Law School): “Hopefully, at least some Republican conservatives will begin to see that you can’t advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other. In this post, I explained why federally mandated tort reform is, in most cases, both constitutionally dubious and unnecessary.”

Prof. John Baker (Catholic University Law School): “To justify their efforts to nationalize medical malpractice law, House Republicans are stretching the Supreme Court’s New Deal Commerce Clause jurisprudence almost as far as Democrats did for Obamacare. Both national medical malpractice reform and Obamacare are radically at odds with our constitutional structure of federalism, though Obamacare is especially radical because it represents the first time that the federal government has required people to purchase a product (health insurance). What compels House Republican leaders to ignore the Constitution?”

Rep. Ted Poe (R-TX): “But now we’re being asked to go ahead and control liability throughout the nation and not just in federal courts but in state courts. I have no problem with this amendment applying to federal courts because we’re supposed to control the federal courts, but when you go to state court, this bill or the legislation overrides a state constitution that prohibits caps in liability. I got problems with that. I think it’s a violation of the Tenth Amendment, and I don’t believe the federal government has any more authority to regulate health care under the Commerce Clause than it does to regulate liability caps in states under the Commerce Clause.”

Rep. Louie Gohmert (R-TX): “I also know that if the Congress decides we need to start dictating to every state what their state court system can or can’t do, then when a far more liberal Congress comes in they will be able to say, Look, you so-called ‘conservative’ Republicans dictated to the States what their State tort law should be, so now we’re going to dictate to the States what we think it should be, and it ends up being a federal takeover of something that is entirely a state system.” (Remarks on House floor, May 18, 2012, Congressional Record, page H3150.)

Rep. Morgan Griffith (R-VA): “[I]f we adopt the California model and adopt it statewide, we completely reverse four hundred years of Virginia law. There are ways to have tort reform without making it one-size-fits-all from Washington, and I think that’s what most people would want us to do. So we just have to be careful.”

Hans von Spakovsky (Heritage Foundation): “… Congress has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims. Doctors are licensed by states, and state legislatures and state medical authorities have the authority to promulgate the standards of medical care in their states, applying to their residents and how tort claims will be adjudicated in state courts.”

Rob Natelson (Independence Institute), on the impact of the Supreme Court’s 2012 Obamacare decision: “Little-noticed amid the commentary on the Supreme Court’s health care decision is the decision’s blow to congressional efforts to federalize medical malpractice law—a potential element of the Republican plan to “replace Obamacare.” Medical malpractice cases, like most areas of civil justice, traditionally are judged by state courts under state law rather than by the national government. This is because, as American Founders such as Alexander Hamilton and John Marshall explained, the Constitution reserves most such matters to state control. … It seems clear that the Supreme Court will not tolerate efforts by Congress to dictate rules and procedures to state courts.”

Judson Phillips (Tea Party Nation): “Some Republicans want to impose federal tort reform on all of the states. Many people have a knee jerk reaction to tort reform. Oh, we don’t like the trial lawyers. We don’t like lawyers, period. Let’s hurt the lawyers. Since 1787, states have regulated state courts. Since 1787, states have regulated licensed professionals in those states including doctors, lawyers and others. In federal court, unless there is a lawsuit governed by a specific federal statute, state law controls the federal courts. … To allow the federal government to impose tort reform on the states wipes out some of the last vestiges of state sovereignty, namely the ability to make its own laws.”

Jenny Beth Martin (Tea Party Patriots): “The malpractice reform will affect not only federal law but also state law. It would take the authority to create tort law (i.e. medical malpractice) from the state and hand it over the federal government. This is an outright violation of the 10th Amendment. … The malpractice reform contains two components that are troubling. The first is that it is federal malpractice reform, even though tort law is supposed to be made at the state level. Second, not only will it affect federal law but, it goes a step further and overrides existing state law! This brings to light a new unconstitutional overreach by the federal government, violating our core value of constitutionally limited government.”

Prof. Randy Barnett (Georgetown University Law School), referring to “fair-weather federalists”: “But tort law—the body of rules by which persons seek damages for injuries to their person and property—has always been regulated by states, not the federal government. Tort law is at the heart of what is called the “police power” of states. … Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power.”

Also, here’s an authoritative bipartisan voice that leans conservative (because Republicans currently control a strong majority of state legislatures):

National Conference of State Legislatures (NCSL): Federal medical malpractice legislation inappropriately seeks to preempt various areas of state law. All 50 states have statutes of limitations for medical malpractice suits. All 50 states have rules of civil procedure governing the admissibility of evidence and the use of expert witnesses. Many states have caps on noneconomic damages and limitations on attorney’s fees in medical malpractice cases. … [S]tates have this issue covered and federal medical malpractice legislation is unnecessary. [Emphasis in original.] … NCSL’s opposition will extend to any bill or amendment that directly or indirectly preempts any state law governing the awarding of damages by mandatory, uniform amounts or the awarding of attorney’s fees. Our opposition also extends to any provision affecting the drafting of pleadings, the introduction of evidence and statutes of limitations.”

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

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