The GOP Immunity Disease Violates Federalism Pledge Expands Washingtons Power



Lots of Congressional Republicans profess allegiance to federalism and the protection of states’ rights enunciated under the Tenth Amendment, as well as to protecting First and Second Amendment rights. But when industry associations look for special deals so they don’t have to be held accountable, too many Republicans catch “immunity disease,” support bills that violate states’ rights, immunize whole industries from civil litigation, crush our Seventh Amendment rights and expand the federal government’s power over our lives. These Republicans morph before your eyes from Federalists into Crony Capitalists. Two examples tell the story.

1. S. 1009, the “Chemical Safety Improvement Act”

S. 1009, the “Chemical Safety Improvement Act,” is a proposal to supposedly “modernize” and “update” the Toxic Substances Control Act (TSCA), the federal law governing the regulation of toxic substances such as formaldehyde, asbestos and lead. But this 127-page bill gives new and frightful powers to the EPA and the chemical industry to strangle the constitutional rights of average Americans. It’s actually the result of a combo of Crony Capitalism and Enviro-Wackoism, mixed in with Democrats’ sympathy for a dead colleague. It’s the late Sen. Frank Lautenberg’s last bill, and some Democrats signed onto it just out of respect, without actually reading it – I know this for a fact. But some pro-industry Republicans are lining up for it without concern for states’ or individual rights.

The bill gives broad new powers to the EPA Administrator to “promote innovation and sustain a globally competitive chemical industry in the United States.” Have Republicans forgotten EPA’s “Cross-State Air Pollution Rule” that threatened power plants, or EPA’s attempts to shut down boilers and cement plants? Why would Republicans now think that the Obama EPA will “promote competition?”

Under Section 4, the EPA will force industry to provide business-sensitive data and information through the use of what the bill calls “voluntary agreements.” Does Uncle Sam ever make us do anything “voluntarily?!” If a company doesn’t “volunteer,” will they get raided like Gibson Guitar, or see the Obama IRS knocking at their doorstep? Haven’t we had enough snooping?

The EPA would have the sole authority to define what constitutes the “best evidence” and a “safety standard” that would then be forced upon any dissenting state, company or individual in a local agency or court case. Right now, state legislatures and courts can use studies from different sources to regulate the toxic substances covered by this bill. That will end under S. 1009; the states would be forced into accepting the EPA’s decisions. So much for the Tenth Amendment.

That led the nonpartisan National Conference of State Legislators to object to the chairman and top Republican of the Senate committee with jurisdiction over the bill. “However, NCSL cannot support any reform of TSCA that preempts state regulations in this area. Section 15 of the bill entitled “Preemption” is a broad state preemption provision that adversely impacts states’ abilities to protect their citizens.”

Finally, if the EPA takes any action on any chemical under this bill, American consumers injured or killed by a toxic chemical would be effectively banned from suing the company based on state tort law. Section 15 of the bill states that no state may create a new, or continue to enforce an existing, restriction on the manufacture, processing, distribution, or use of a chemical after EPA completes a safety determination for that chemical. When the EPA completes a safety determination for a high-priority substance under Section 6, that safety determination becomes: 1) admissible in state and federal courts, and 2) “determinative of whether the substance meets the safety standard under the conditions of use addressed in the safety determination.” Not only does this provision strip away the power of state judges to determine relevant evidence in their own courtrooms, it would grant total immunity from state tort law claims for any chemical that the EPA has determined to be “safe.” Even when the EPA doesn’t act on a specific chemical, the presumption will be that the chemical is safe.

Instead of overriding state law, Congress should retain state-law based causes of action and ensure that injured parties can be compensated by negligent chemical manufacturers for their injuries. Moreover, if state tort law is preempted, chemical companies will not have the same incentives to ensure their products are safe.

Too many Republican Senators who claim to be “Constitutional conservatives” are co-sponsors of S. 1009. Even Sen. Mike Crapo, who normally acts to protect Seventh and Tenth Amendment Rights, signed up for this bill. Fortunately, it appears that the House GOP is in no mood right now to expand the power of the EPA, override states and endanger our rights in this area.

That doesn’t mean the House GOP has rid itself of the “immunity disease.”

2. H.R. 2300, the “Empowering Patients First Act of 2013”

Republican Rep. Tom Price, M.D. has proposed H.R. 2300, the “Empowering Patients First Act of 2013,” as an alternative to Obamacare. In previous Obamacare alternatives, Dr. Price has proposed unconstitutional federal limits on damages in medical malpractice lawsuits, but those are not in this bill. While it’s encouraging to see that he doesn’t propose federal caps on medical malpractice damages in the bill, there are still Seventh and Tenth Amendment issues in at least two sections in the bill.

Section 502 would authorize the HHS Secretary to award grants to States “for the development, implementation, and evaluation of administrative health care tribunals,” a new set of courts devoted solely to resolving health care disputes. And the section stipulates the qualifications of the members of the tribunals and interferes with the decisions of state judges now operating under state law. Is Dr. Price seeking to immunize medical professionals from negligence by substituting “expert opinion” for the decision of a jury of the plaintiff’s peers, the system the Founding Fathers protected? What section in the Constitution gives Congress the authority to create these courts and dictate their makeup? Why should Republicans encourage the creation of another court system in each state and then tell the states who can serve on the court? Why would we Republicans use federal law to take the authority to decide these cases out of the hands of local juries? Since when do Republicans turn disappointment over “unjust” jury verdicts into federal law overriding state law and courts? And why do health care professionals deserve their own set of courts when they’re sued? Why not teachers or first responders or some other special profession?

Section 503 states orders that certain payments in excess of $50,000 “in any health care lawsuit” should be made in accordance with the Uniform Periodic Payment of Judgments Act promulgated by the National Conference of Commissioners on Uniform State Laws. Again, which section of the Constitution authorizes Congress to so order payments in a state court case to be made that way? And why would Republicans ignore each state’s established procedure for payments and a jury’s damages determination in court decisions? And again, why do “health care lawsuits” deserve special treatment over lawsuits over other decisions?

Again, some Republicans who pride themselves on protecting states’ rights, such as Rep. Rob Bishop, have mysteriously co-sponsored this bill, perhaps thinking that a bill without federal caps honors federalism and individual rights.

These and other bills expand federal authority in ways the Founding Fathers never envisioned. And for some reason, some Republicans (not all) still don’t realize that by overriding state law and courts, they invite Democrats to do the same for their agenda – Republicans play right into Democrats’ hands. Republican arguments for preemption of state law, based on Commerce Clause rulings by the Supreme Court starting with Wickard v. Filburn, led eventually to the enactment and defense of Obamacare.

Republicans have to reject the “immunity disease” that leads to Crony Capitalism and a bigger federal government.