Earthquake GOPs Favorite Constitutional Scholar Opposes Federal Tort Reform Bills

Prof. Randy Barnett of Georgetown University Law Center is arguably the GOP’s favorite Constitutional scholar. He co-authored an amicus brief for the National Federation of Independent Business in the 11th Circuit review of the State of Florida’s anti-ObamaCare case; he has written often about and testified to the unconstitutionality of ObamaCare before the House Judiciary Committee and the Senate Judiciary Committee; and he’s among the leading experts on the original intent of the Founding Fathers’ writings, including the Constitution and Bill of Rights. Just last week, he appeared with Congressional Republicans to announce the introduction of the Repeal Amendment, which would allow states to repeal federal laws under certain conditions.

So it’s stunning that Prof. Barnett has written two pieces today on the unconstitutionality of any federally enacted tort reform, beginning with H.R. 5, the Republican-sponsored “HEALTH Act,” which would severely limit all health care-related lawsuits. In an op-ed appearing in the Sunday edition of the Washington Examiner, Prof. Barnett wrote:

Congress is now considering the “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011.” This bill alters state medical malpractice rules by, for example, placing caps on noneconomic damages. 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. This issue concerns constitutional principle, not policy: the fundamental principle that Congress has only limited and enumerated powers, and that Congress should stay within these limits. Constitutional law professors have long cynically ridiculed a “fair-weather federalism” that is abandoned whenever it is inconvenient to someone’s policy preferences. If House Republicans ignore their Pledge to America to assess the Constitution themselves, and invade the powers “reserved to the states” as affirmed by the Tenth Amendment, they will prove my colleagues right.

And in a piece on his blog hosted on the pages of the “Volokh Conspiracy,” he added to his objections as follows:

When I first heard that the House was planning on pursuing tort reform, I was skeptical that there was a constitutional basis for this effort at the federal level, but thought maybe there is some legitimate federal power that, if cleverly deployed, could influence tort law at the state level. So I was disappointed when I read the law firm report on which the sponsors of the bill relied for ‘constitutional authority.’ The report justified the bill under the ‘substantial effects doctrine.’ Not only does this post-New Deal doctrine extend Congress’s power well beyond the regulation of interstate commerce, it does so, not by independently determining whether the activity being regulated actually has a substantial affect on interstate commerce, but instead on whether Congress had a ‘rational basis’ for believing that it did. Thus does the Court defer to Congress, while the House Republicans — just like Congressional Democrats — defer to the Court’s assessment of constitutionality. This ‘double deference’ is one of the secret (to the general public) tricks by which the branches of the federal government can claim to be adhering to the Constitution while actually ignoring it. It is one of the ways important passages of the Constitution’s text became ‘lost.’

But the ‘findings’ of the bill are even worse:


“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.”

These ‘findings’ are based on the effects on interstate commerce, not only of the ‘health care and insurance industries,’ but also of ‘health care liability litigation systems throughout the United States’ — that is, on the affects on interstate commerce of state courts themselves! So Congress has the power to regulate tort law because state courts affect interstate commerce. By this principle, Congress has a general police power over any matter not adjudicated by state common law courts.

Prof. Barnett’s logic is irrefutable, if you believe in restoring the original intent of the Constitution and Bill of Rights. If, instead, you adhere to the position that the post-Wickard line of Supreme Court decisions justifies H.R. 5, then… get ready for ObamaCare.

This is an intellectual earthquake. Prof. Barnett’s two pieces and the posts and letter by Constitutional conservative Rob Natelson of the Independence Institute trump the theories behind the business community’s long war to pre-empt all state laws and courts and deprive us of our Constitutional rights. Now the battle in Congress is fully joined. It’s the Founding Fathers vs. the U.S. Chamber. It’s the original intent of the Constitution and Bill of Rights to limit Uncle Sam’s power vs. new judge-made doctrines expanding Uncle Sam’s power. It’s the moral authority of principle and conscience vs. the naked power of business-side PAC dollars and scores of lobbyists. If GOP Congressmen and Senators vote their conscience, it’ll be no contest. Call your Congressman and tell him to save the Constitution and Bill of Rights by opposing H.R. 5.