Senate GOP Jobs Bill Contains a Landmine for Federalism

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. 

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

Most Popular

Film & TV

Why We Can’t Have Wakanda

SPOILERS AHEAD Black Panther is a really good movie that lives up to the hype in just about every way. Surely someone at Marvel Studios had an early doubt, reading the script and thinking: “Wait, we’re going to have hundreds of African warriors in brightly colored tribal garb, using ancient weapons, ... Read More
Law & the Courts

Obstruction Confusions

In his Lawfare critique of one of my several columns about the purported obstruction case against President Trump, Gabriel Schoenfeld loses me — as I suspect he will lose others — when he says of himself, “I do not think I am Trump-deranged.” Gabe graciously expresses fondness for me, and the feeling is ... Read More
Science & Tech

Set NASA Free

The Trump administration has proposed shifting the International Space Station from a NASA-exclusive research facility to a semi-public, semi-private one. Its plan would nix all government funding for the ISS by 2025 and award at least $150 million per year to NASA to help with the transition. This would be a ... Read More
Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
PC Culture

Kill Chic

We live in a society in which gratuitous violence is the trademark of video games, movies, and popular music. Kill this, shoot that in repugnant detail becomes a race to the visual and spoken bottom. We have gone from Sam Peckinpah’s realistic portrayal of violent death to a gory ritual of metal ripping ... Read More
Elections

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More