A couple weeks ago, I had an op-ed in the Washington Examiner on the fair weather federalism of those Republicans who were supporting the federalization of state tort law in HR-5, a bill concerning medical malpractice. Today’s Daily Caller featured a new op-ed by Professor John Baker also criticizing the bill:
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? Nationalizing medical malpractice law would not necessarily protect hometown doctors. Some states currently offer doctors better protection, without being subjected to federal bureaucrats. Other states would do so if doctors worked their own state legislatures, rather than relying on a Washington lobby, the American Medical Association.
The explanation for the eagerness of House Republican leaders to nationalize even more of the economy is a simple reality: both Congressional Democrats and Congressional Republicans like the New Deal interpretation of the Commerce Clause, which allows them to expand national power. They would just do so for different purposes.
I am pleased to report that, likely due to internal opposition on constitutional grounds from members of the House Republican caucus, the already marked up bill does not appear on the House schedule for a vote this summer (though it could always be slipped into a larger bill). The Republicans members responsible for scuttling the bill (so far) deserve credit for standing on principle.
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