In a special memorandum issued to House Republicans this week, the four senior House Republicans (Reps. Boehner, Cantor, McCarthy and Hensarling) laid out their plan for implementing a ten-year federal budget under Rep. Paul Ryan’s plan and that would avoid cuts in national security and certain domestic programs. In so doing, they thoroughly trashed the concept of state sovereignty over their own judicial systems, and ignored real budget reforms that save far, far more than would their beloved federal medmal limits bill, H.R. 5, the bizarrely named “HEALTH Act.” Anyone with a true allegiance to the Constitution and Bill of Rights should see this plan as a death knell of states’ rights, delivered by House Republican leadership as a diktat to the Congressmen.
The last section of the memo is titled, “Reforming the Medical Liability System,” and it begins by condemning state supreme courts: “Many state supreme courts have judicially nullified reasonable litigation management provisions enacted by state legislatures… ” So the leaders apparently don’t have much respect for the state judges selected or elected under the state constitutions. But state legislators don’t get any respect either, with the leaders stating later in that section, “Further, abusive state tort laws drive what is known as ‘defensive medicine,’…” Well, those state tort laws don’t just drop out of the sky; they’re enacted by the elected representatives of the people under state constitutions.
So, in a little more than a page, the House GOP leaders tell the 50 states and the people who elect the state legislators that they’re all idiots unworthy of governing themselves. It’s the arrogant, Washington-know-it-all attitude on open display, exactly what the House Republicans were elected to replace under the Capitol dome.
And in between those two quotes is another one, the Big Lie about H.R. 5: “The HEALTH Act also does not preempt any state law that otherwise caps damages.” EVERY constitutional scholar who has studied and written on the bill, from Randy Barnett and Rob Natelson and the Heritage Foundation to Ted Frank and Walter Olson, has concluded otherwise. In almost 8 hours of debate on the House floor, and several more this week in the House Judiciary Committee, proponents of H.R. 5 haven’t been able to point to ONE, just ONE current scholar who believes that H.R. 5 protects or respects state laws.
The leaders’ utter disregard for the Constitution, buttressed with their extraordinarily hypocritical stand against Obamacare on constitutional grounds, is the reason why a small but increasing number of House Republicans are vocally rebelling against the leaders’ insistence on H.R. 5. They know that federal tort reform is as violative of states’ and individual rights as Obamacare, as both are based on the overly broad, Wickard v. Filburn interpretation of the Commerce Clause and the Necessary and Proper Clause.
These Members also realize that the pittance supposedly saved by H.R. 5, now estimated at $41 billion over ten years (under 1% of the total budget for that period), is dwarfed by Rep. Ryan’s own proposal to change Medicare and Medicaid, where the real health care dollars are spent. He estimates his plan would save hundreds of billions of dollars. Whether you agree with that proposal or not, it’s an option defended by the senior House Republican on the federal budget.
But House GOP leaders won’t propose or defend that plan. Instead, it’s full speed ahead on the road to federal control of state courtrooms.