LSU Law’s Baker: House GOP Needs To Back Off Med-Mal Reform While Obamacare Suits Are In Progress

At the Daily Caller today, LSU Law School professor emeritus John Baker offers an interesting take on attempts by House Republicans to institute medical malpractice tort reform through federal legislation.

Namely, “what the hell are you guys doing?”

Lawyers for states challenging the constitutionality of Obamacare must privately think that with friends like House Republicans, they need not worry about enemies in the Justice Department.

House Republicans hope to nationalize medical malpractice law, which is traditionally a matter of state tort law, by passing H.R. 5, a bill that would wipe out all state medical malpractice laws and complete the nationalization of healthcare. Passage of H.R. 5 would undercut arguments that Obamacare is unconstitutional.

To justify their efforts to nationalize medical malpractice law, House Republicans are stretching the Supreme Court’s New Deal Commerce Clause jurisprudence almost as far as Democrats did for Obamacare. Both national medical malpractice reform and Obamacare are radically at odds with our constitutional structure of federalism, though Obamacare is especially radical because it represents the first time that the federal government has required people to purchase a product (health insurance).

Baker notes there’s a real danger that a Supreme Court – or most particularly Anthony Kennedy, who will likely be the swing vote on an Obamacare – likely terrified of the implications of finding Obamacare unconstitutional will look upon efforts by both parties to regulate medicine at the federal level as a Congressional consensus that hyper-expansive Commerce Clause interpretations are proper. And if that happens Kennedy, and thus the Court, would be able to essentially punt on the question whether the federal government forcing people to buy health insurance is an obnoxious violation of individual rights because hey, they’re regulating commerce.

He’s exactly right, in the legal and philosophical sense. The sensible interpretation of the Commerce Clause would be that health care isn’t practiced across state lines but usually in a hospital or a clinic, and thus it should be regulated at the state level. And that goes for the malpractice suits which naturally follow health care around. State legislatures have to fix the abuses in the med-mal system; for Congress to do so will only make a bad problem – too much power in Washington – worse.

In the political sense, though, it’s not so easy. There’s a calcified national consensus for repealing Obamacare. But there is also a consensus among the public that the system is broken and something needs to be done. And in our modern media age, national problems are never analyzed by what states are doing to fix them; it’s about what Congress or the President will do.

Which is not to say that Republicans – or Democrats who care about the 10th Amendment, for that matter – should just give in to lazy statements from Chris Matthews or Bill O’Reilly about how this problem or that has to be fixed NOW. But it means addressing the federalism issue that health care legislation creates carries with it a duty to educate the public as to why it’s such a bad idea for Congress to wade into all these questions.

It’s an esoteric discussion, though, and it promises incomplete results. A Texas will enact legislation that will be doctor-friendly and serve to limit costs from medical malpractice. A California is virtually certain to drive doctors straight out of the state. Folks would like to know that the problem will get fixed everywhere, and they’ll ask their Congressman and presidential candidates what they’re going to do about it.

There are scant few political consultants who will advise their clients to answer such questions with “you’ve got to call the governor or your state rep about that, because you don’t want me fixing this for you.” Unless it’s done correctly, and I mean VERY correctly, it’s going to sound like a dodge. Folks don’t like dodgers as their elected representatives, though dodgers are highly preferable to do-gooders and tyrants.

Baker’s advice has to be paired with a smart strategy for not just the med-mal question but scads of others for which federal intervention is fool’s gold. It’s imperative for the public to understand that it’s a Faustian bargain to turn local and state questions over to Washington.

And for all his faults, this might be a reason why Rick Perry is a good solution for the GOP’s presidential nomination next year. Perry has done good work defending the 10th Amendment and extolling the virtue of state action to solve social and economic issues; in fact, it’s one of the most prominent messages in his proto-campaign to date. Perry’s not perfect; his braggadocious rhetoric about Texan secession, intended for a local audience, will be used against him, as will his calls for federal intervention on the border (despite the fact that Perry has led on the issue from the state level). But the overweening nature of D.C. and the public’s fatigue with federal solutions present an opening for a discussion of devolution of power from the Beltway; if Perry as the nominee can emphasize the leadership his state has shown on policies like med-mal – Texas has reformed their system already and just instituted a “loser pays” system for tort law in general – then other Republicans can point to that leadership and note that if Texas is finding solutions then their states can find them as well.

But that’s more of a long-term solution to the politics of the federalism issue. In the short term, Baker has it right – the House GOP should get out of the way and let the Supreme Court kill Obamacare, if it can. Once it does, if it does, state-based solutions offered through Republican majorities in state houses and governor’s mansions across the country which are already being germinated might, coupled with a Perryesque message as a GOP nominee, create a political momentum away from our 80-year march toward centralized policy.



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