FINO Republicans: Federalists in Name Only

Over the summer I criticized a House Republican medical malpractice reform as “fair-weather federalism” in this op-ed in the Washington Examiner: Tort reform and the GOP’s fair-weather federalism.  Now Senate Republicans are emulating their colleagues in the House by including medical malpractice reform as part of their new “jobs” bill.   On today’s NRO, attorney Carrie Severino, who has authored several excellent amicus briefs on behalf of Senate and House leadership in the challenges to the Affordable Care Act, has a column criticizing this proposal: Senate GOP Jobs Bill Contains a Landmine for Federalism.

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. Is there any industry that couldn’t be found to have an effect on interstate commerce?

But that is not even the worst part of the constitutional justification included in the bill.   Consider this statement of Congressional power:

EFFECT ON INTERSTATE COMMERCE- Congress finds that the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce by contributing to the high costs of health care and premiums for health care liability insurance purchased by health care system providers.

Yes, you read that right.  Senate Republicans are claiming that Congress has power over the judiciary of the states because state courts are an activity that “affect[s] commerce.”

As Carrie concludes:

There are serious problems with our current legal climate, and medical malpractice is an area of specific need. Like the proponents of this bill, I am no fan of frivolous lawsuits or the trial lawyers who use our civil justice system as a means of diverting wealth (usually into their own bank accounts). But if we sacrifice our commitment to the rule of law here, what standing do we have when the next iteration of Obamacare presents itself?

I hope Senate Republicans will consider replacing or removing S.197 from their jobs bill.

True that.  With friends like these, constitutional federalism does not need enemies.  Can we coin a new pejorative FINO:  “Federalists in Name Only”?   Oh well, I guess not.   But the best thing that can be said about this proposal is that it won’t become law.

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