Senate GOP Jobs Bill Contains a Landmine for Federalism

by Carrie Severino

Douglas Holtz-Eakin offers three cheers for the “Jobs Through Growth Act,” the Senate Republican alternative to President Obama’s jobs bill.  For reasons I explain below, I’m not sure I’d even go with the old “two cheers.”

On the upside, the bill would repeal the Obama administration’s two most aggressive assaults on the Constitution — Obamacare and Dodd-Frank — and “require congressional approval by joint resolution of any federal rule that would cost the economy $100 million or more.” If they left it at that, Senate Republicans would be making significant improvements to the nation’s economic climate while vindicating important constitutional limitations on the national government’s power.

Unfortunately, the bill would also enact S.197, “The Medical Care Access Protection Act.” Among other things, S.197 sets a statute of limitations for claims, caps damages and creates standards for expert witnesses. These may sound like great ideas, but they are not within the constitutional powers granted to the federal government for the very same reasons Obamacare is not. 

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? The agriculture and manufacturing industries, long considered the paradigmatic areas not covered by the Commerce Clause, certainly fall under federal power under this broad analysis.

As Georgetown law professor Randy Barnett explains here, in a piece criticizing Republicans for their “fair-weather federalism, “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.” Of course, there are contexts — product liability, for example — in which states can take actions that set standards for the entire country, turning federalism on its head. (See Michael Krauss’s brief summary here.)  

But that’s not the case with S.197. The doctor-patient relationship at issue here is simply not commerce among the states. To say otherwise is to buy into the idea that everything we do (or don’t do) is subject to congressional authority because of some commercial effect somewhere in the cosmos. Congress would be nationalizing purely local activity because state-by-state solutions would require a lot of resources and hard work. 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. 

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