Conservative Republicans make a great show about states’ rights these days. It’s all the rage. The Tenth Amendment, they say, limits Congress to those areas in which the Constitution explicitly empowers it to act. All other responsibility resides with the states. They’re also not real happy with the way the commerce clause — in their eyes — has been stretched to apply to areas well beyond what the Founders intended, particularly health care.
Georgia’s Republican congressmen have been among those leading that charge. U.S. Reps. Phil Gingrey and Tom Price — both of whom happen to be physicians — were co-sponsors last year of a resolution declaring that “the very future of freedom and limited government depends on a restoration of American federalism and a real decentralization of government power.”
In remarks on the House floor, Gingrey has protested bitterly against a “‘Washington-knows-best’ solution and a one-size-fits-all approach,” and both men supported a new House rule requiring bill sponsors to cite a specific power enumerated in the Constitution that would authorize the proposed action.
Of course, the true test of your allegiance to principle comes not when you try to use it to restrict what the other guy does, but when you apply it to yourself. It’s all well and good to preach about the sanctity of marriage vows, for example, but the real test comes in whether you honor those vows in your own life.
So I found it interesting that earlier this week, the House Judiciary Committee decided to brush aside supposed concerns about federalism and states’ rights. By a vote of 18-15 — all Republicans for, all Democrats against — it approved a law that would directly pre-empt and override state laws and longstanding state authority and intrude on states’ rights by imposing a federal, one-size-fits-all solution.
The issue was medical malpractice, a favorite conservative cause. According to Politico, the bill in question would put a “three-year statute of limitations on medical lawsuits, cap non-economic damages at $250,000, and limit punitive damages to $250,000 or twice the economic damages, whichever is greater.”
For the moment, let’s set aside debate on the merits of the law and focus on its necessity: Why should Congress interfere in such an area, given that most medical malpractice suits are argued in state courts, under state laws? Until now, every state has had the right to decide such issues on its own. Some states have tough laws, some have more lenient laws. That’s the essence of states’ rights, as I understand it. So what’s the justification for imposing what Gingrey might call “a Washington-knows-best’ solution”?
More importantly, where exactly in the Constitution does it say that Congress shall be empowered to dictate to state governments, state courts, state judges and state juries how they should handle state cases of alleged medical malpractice? What’s the source of that federal authority? I’ve looked in my handy pocket Constitution, and I can’t find such a provision anywhere. Under conservative legal theory, it certainly can’t be the commerce clause, given that the commerce involved is strictly intra-state, not interstate. Most people do not cross state lines to get medical care.
Curious, I went digging into the Congressional Record. Under new House rules, remember, sponsors are required to cite congressional authority for their proposed bill. And sure enough, on Jan. 24, the bill’s sponsor — a “Mr. Gingrey of Georgia” — cited the commerce clause as his authority.
– Jay Bookman