The infidelity of states’ rights proponents
NOTE: This post includes material published in a post late last week. It is published here as the electronic version of today’s column in the AJC, to give AJC readers a chance to comment and share.
In Congress and at the state Legislature, states’ rights are all the rage. According to many conservatives, Congress can act only in those areas in which the Constitution explicitly empowers it to act. All other responsibility resides with the states.
In particular, conservatives claim that the commerce clause — which gives Congress the power to regulate commerce between the states — has been distorted to apply to areas well beyond what the Founders intended, particularly in health care.
Georgia’s Republican congressmen have been among those leading that charge. Last year, U.S. Reps. Phil Gingrey and Tom Price — both of whom are physicians — were co-sponsors 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 that requires bill sponsors to cite a specific power enumerated in the Constitution that would authorize the proposed action.
However, the true test of your allegiance to principle comes not when you apply it to the other guy, 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.
In Washington last week, the House Judiciary Committee failed such a test. By a vote of 18-15 — all Republicans for, all Democrats against — the committee approved a law that would pre-empt and override state laws and longstanding state authority. It did precisely what Gingrey had complained about in another context; it imposed a “‘Washington-knows-best’ solution and a one-size-fits-all approach.”
The issue was medical malpractice, a favorite conservative cause. The bill approved by the committee would override state laws by putting a nationwide cap of $250,000 on non-economic damages. It would also cap punitive damages at $250,000 or twice the economic damages, whichever was greater.
According to the National Conference of State Legislatures, roughly one third of the states place no limits or caps on malpractice awards. And since most malpractice suits are argued in state courts, under state laws, why should Congress butt in? (Georgia law, by the way, limits punitive damages to $250,000 in most cases. However, the state Supreme Court has ruled that limits on other non-economic damages violate the Georgia constitution. That ruling would also be rendered moot by the proposed change in federal law).
To borrow the rhetoric of the right, where in the Constitution does it say that Congress can dictate to state governments, state courts, state judges and state juries how they should handle 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.
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, and malpractice insurance is sold on a state-by-state basis.
So what justifies such an intrusion on states’ rights? You may recall that under new House rules, sponsors are required to cite constitutional authority for their proposed bill. So I went looking through the Congressional Record and there it was:
On Jan. 24, the bill’s sponsor — a “Mr. Gingrey of Georgia” — claimed that the intrusion on states’ rights is authorized under the commerce clause.
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164 comments Add your comment
barking frog
February 22nd, 2011
8:50 am
JKL2 Like the congressmen you want less government ?
But..less government means that the states should get
bigger. We can easily do without States but we cannot
do without the Federal Government. If you want less
government you must cut somewhere..
JKL2
February 22nd, 2011
8:51 am
USinUK- so, does that mean you’re endorsing government-subsidized health care?
NO. It’s an example of why everything costs so much (for anyone who can actually pay for their own services). If he had to rely on the government he would be in another profession. I would rather have him charge $15 to everyone and actually get paid $15 for everyone he saw.
Doggone/GA
February 22nd, 2011
8:51 am
“And if it is about all things and was in place during Katrina, would there have been no “You’re going a heck of a job, Brownie”, because the crisis would have belonged solely to the States involved?”
My sister tried to make that argument, that it was a state problem…but it isn’t. There are Federal highways involved, other Federal facilities…and bottom-line, New Orleans is a national seaport, not just a local one.
TaxPayer
February 22nd, 2011
8:52 am
Evidence from the states indicates that premiums for malpractice insurance are lower when tort liability is restricted than they would be otherwise. But even large savings in premiums can have only a small direct impact on health care spending–private or governmental–because malpractice costs account for less than 2 percent of that spending.
Tart reform is the only way to really reduce healthcare cost because if doctors such as Gingrey could not hire good looking nurses and assistants to distract them while working, they could not make as many mistakes.
Granny Godzilla
February 22nd, 2011
8:54 am
How about Georgabama or Louisissippi?
Money savings jumping out all over the place.
Doggone/GA
February 22nd, 2011
8:55 am
“How about Georgabama or Louisissippi?”
But why stop even there? Keep going, make the whole country just one great big state, and we only need one government for everyone!
Paul
February 22nd, 2011
8:56 am
Normal
“Seriously folks, my 0830. I would like an answer…”
Does Bait’s Rights include sushi?
Not if you’ve got a hot date at a Japanese restaurant…..
USinUK
February 22nd, 2011
8:56 am
“NO. It’s an example of why everything costs so much ”
okay, I’m going to need for you to expand on that one. The government PAYS him $4/visit, so he HAS to charge $75???
JKL2
February 22nd, 2011
8:56 am
barking frog- We can easily do without States but we cannot
do without the Federal Government
I see freedom is lost on you. Just go sit on your couch, turn on CNN, and start waving your flag. Nothing to worry about. Papa obama will take care of all.
USinUK
February 22nd, 2011
8:57 am
Doggone – I dunno – Louisiannessee seems to work well – Memphis and NO all in the same state!
barking frog
February 22nd, 2011
8:58 am
No states would mean kids college tuition bills would not
be inflated just because they chose to cross an imaginary
line to attend school.
Del
February 22nd, 2011
8:58 am
Looks like trial lawyers wrote the topic for this thread.
Bosch
February 22nd, 2011
9:00 am
So, I see the wingnuts are not addressing the issue — the hypocrisy of their own and instead deciding who can and can not use the phrase “moral.”
Okay.
And a grown man who calls people “punkin” is just wrong.
Granny Godzilla
February 22nd, 2011
9:00 am
Ok, where I live with have city police, county sheriffs, state patrol and some pretty mean librarians…..
can’t we just have one “force”?
Doggone/GA
February 22nd, 2011
9:01 am
“No states would mean kids college tuition bills would not
be inflated just because they chose to cross an imaginary
line to attend school”
And there would be no need for the Commerce clause, because all commerce would be intrastate
barking frog
February 22nd, 2011
9:01 am
JKL2, Under what color of sky does having a State Government
give you more freedom?
TaxPayer
February 22nd, 2011
9:02 am
Despite what Republicans want to believe, making malpractice lawsuits disappear doesn’t make the health care costs of medical errors go away. It simply means that it’s just not the wrongdoers who pay for them.
Oh, and as a side note: Gingrey doesn’t seem to be paying much attention to the affairs in his home state. In 2005, Georgia passed a cap on malpractice damages much like the one Gingrey would like to impose on the whole country. Last year, in a 7-0 decision, the Georgia Supreme Court threw out the law, calling it a huge violation to the constitutional right to a jury trial, and one that infringed on the separation of powers.
JKL2
February 22nd, 2011
9:02 am
USinUK- The government PAYS him $4/visit, so he HAS to charge $75???
The only way he can keep his practice open is because patients willing to pay $75 cash for an office visit subsidizes all his welfare patients. He still bills the government $75, they just pay him $4 and call it even.
Bosch
February 22nd, 2011
9:02 am
“Under what color of sky does having a State Government
give you more freedom?”
frog, seriously, it’s OBVIOUSLY under the RED sky.
Doggone/GA
February 22nd, 2011
9:03 am
“where I live with have city police, county sheriffs, state patrol and some pretty mean librarians”
Consider yourself lucky, Gwinnett has *4* law enforcement agencies:
County Sheriff
County Constable
County Police
State Patrol
Paul
February 22nd, 2011
9:03 am
USMC Dawg
““NO. It’s an example of why everything costs so much ”
okay, I’m going to need for you to expand on that one. The government PAYS him $4/visit, so he HAS to charge $75???”
My sis is a teacher near Houston. Everyone in the district – teachers, bus drivers, janitors – has the same health insurance, with various options. It’s in the literature – you pick a high-deductible policy, the office call will be $250. That’s just the office call. It’s how the companies negotiate with the providers.
Just another example of people with no insurance who pay their own costs or those with high deductibles subsidize/cover the real costs/pay the way for those with cadillac plans. The doctors are going to make up their costs from those who haven’t the leverage to negotiate markdowns.
Bosch
February 22nd, 2011
9:03 am
What is a constable?
TaxPayer
February 22nd, 2011
9:04 am
At least JKL2 does not think of Obama as his Messiah, just his papa.
Adam
February 22nd, 2011
9:04 am
Hold on, didn’t you post this exact same article before?
Bosch
February 22nd, 2011
9:04 am
AND PAUL WINS WITH THE 9:03!!!!!!
Granny Godzilla
February 22nd, 2011
9:05 am
Bosch
a law enforcement officer who ate way too much cheese
Bosch
February 22nd, 2011
9:06 am
Hi Mrs. G!!
That sounds so “Andy Griffith” — the local “constable” — really?
barking frog
February 22nd, 2011
9:07 am
“and all subdivisions of the American Nation shall consist of
the several Counties”….that would make a good Deal of Georgia
and the rest
Paul
February 22nd, 2011
9:08 am
JKL2
“The only way he can keep his practice open is because patients willing to pay $75 cash for an office visit subsidizes all his welfare patients. He still bills the government $75, they just pay him $4 and call it even.”
Many other programs are linked to gov’t rates. So military, Medicare, Medicaid all fall into the welfare patient category, also.
Bosch
February 22nd, 2011
9:08 am
“So military, Medicare, Medicaid all fall into the welfare patient category, also.”
Oh, Paul, NOW you’ve gone and done it.
USinUK
February 22nd, 2011
9:09 am
“He still bills the government $75, they just pay him $4 and call it even.”
you are obviously under the mistaken impression that insurance companies don’t do the same.
USinUK
February 22nd, 2011
9:10 am
Bosch – 9:06 – the mister never saw Andy Griffith until he moved to the states when we were a-courtin’ … he la-la-LOVES that show!
Bosch
February 22nd, 2011
9:10 am
“Federal cuts might hurt local programs”
So?
http://www.ajc.com/news/federal-cuts-might-hurt-848060.html
How’d y’all like my wingnut impression?
barking frog
February 22nd, 2011
9:11 am
Bosch 9:02 Red Sky at morning, sailor take warning.
Red sky at night, Sailors delight. Good benefits, bad burdens.
I’ll take the good benefits…
Paul
February 22nd, 2011
9:11 am
Hey Bosch
I like Granny’s answer, but I’m going with – an elected official, law enforcement type, wants to be a cop, usually has duties that are specified to deliver court documents, but local governments give the constable a ton of money so he can buy cars and hire people and go around and write traffic tickets so the local tax coffers fill up… I mean, so they can assist real cops in crime prevention….
Dave R.
February 22nd, 2011
9:13 am
While not admitting to your term “wingnut”, Bosch, Ill say two things about this issue.
First, if the libs hadn’t already made this issue one of Federal scope with last year’s (and hopefully soon to be struck down) health care reform, there would be no need for the grownups now in charge in the House to fix it at the Federal level.
Next, to counter Taxpayers sorry (as usual) attempt to deflect the REAL costs, while malpractice INSURANCE costs amount to about 3% of the cost of providing health care, it is estimated that the cost of excessive tests to AVOID potential lawsuits contributes nearly 30% to the cost of our health care.
At the risk of sounding like a 6 year-old: “You libs started it”!
Bosch
February 22nd, 2011
9:13 am
Paul,
OHHHHH, okay, got cha. So, will the constable be the one who’ll go out and arrest people when they don’t buy health insurance in a few years?
Paul
February 22nd, 2011
9:13 am
Bosch
“Paul, NOW you’ve gone and done it.”
I try. SoCom said I was a slacker and he was going to revoke my EOI card -
Bosch
February 22nd, 2011
9:15 am
Dave R.,
OOOHHHHH, okay, so it’s ALL the liberals fault….
Got it.
Doggone/GA
February 22nd, 2011
9:16 am
“So, will the constable be the one who’ll go out and arrest people when they don’t buy health insurance in a few years?”
No, of course not. We’ll have to have a whole new Federal department of “Healthcare Enforcement” and the officers will be ENFORCERS!
USinUK
February 22nd, 2011
9:16 am
Bosch – 9:15 – that’s their story and they’re stickin with it.
barking frog
February 22nd, 2011
9:17 am
States were invented by the federal government and legislated
into existence to replace colonies established by the King. They
have outlived their usefulness and need to be legislated away.
Paul
February 22nd, 2011
9:17 am
Bosch
“So, will the constable be the one who’ll go out and arrest people when they don’t buy health insurance in a few years?”
Well, that’d be a federal issue, but my guess is the constables’ll figure out a way to get augmented to the team so they can put on bullet-proof vests and ride in helicopters and get those cool wrap-around sunglasses for free.
USinUK
February 22nd, 2011
9:17 am
doggone – 9:16 – one day, they all hope to be promoted to the DEATH PANELS
Dave R.
February 22nd, 2011
9:17 am
Sometimes constables are also referred to as “marshals”.
USinUK
February 22nd, 2011
9:18 am
barking – but … but … but … what cliches would the media use on election night if they can use red state / blue state???
red blob / blue blob?
USinUK
February 22nd, 2011
9:18 am
at least, with the demolition of states, we’d have to get rid of the gawd-awful ELECTORAL COLLEGE!!!
one person, one vote!!!
Normal
February 22nd, 2011
9:18 am
Oh well,
I gotta go. Guess I won’t get schooled today…Have a good one.
Jay
February 22nd, 2011
9:19 am
Just as a note, I published this revised version of a earlier post to serve as the electronic version of today’s AJC column. Fresh sheets upstairs now.
Bosch
February 22nd, 2011
9:21 am
“but my guess is the constables’ll figure out a way to get augmented to the team so they can put on bullet-proof vests and ride in helicopters and get those cool wrap-around sunglasses for fre”
Oooooo…. I wanna be a constable.
Normal
February 22nd, 2011
9:21 am
Before I go, Barking frogs idea sure would simplify government, wouldn’t it? King and Queen Obama and their High Court. Really gone now…Meetings! UGH!!!
barking frog
February 22nd, 2011
9:24 am
USinUK A reasoned examination of restructured government
without States reveals many benefits and the media can count
counties because only they would count as red and blue and
would provide enlargement of tote boards and blinking lights.
Dave R.
February 22nd, 2011
9:27 am
Bosch: “OOOHHHHH, okay, so it’s ALL the liberals fault….
Got it.”
Finally! As we used to say in Massachusetts, “Light dawns on Marble Head”!
Southern Comfort (E.O.I.)
February 22nd, 2011
9:35 am
I try. SoCom said I was a slacker and he was going to revoke my EOI card
And I’m still watching you and evaluating all the time.
@@
February 22nd, 2011
9:59 am
Did Gohmert and Poe, both Republicans from Texas, oppose the law? Last I heard, they were in agreement with you, jay. Imagine THAT…Poe, a member of the Tea Party Caucus was in agreement with YOU.
That must make YOU a RADICAL NUTJOB!!!!!
Jay
February 22nd, 2011
10:02 am
Poe and Gohmert did oppose the bill, @@, but magically, both somehow managed to miss the committee meeting in which it was voted on and approved.
Funny how that happens.
0311/0317 - 1811/1801
February 22nd, 2011
10:38 am
OUR NATIONAL ANTHEM
“So, with all the kindness I can muster, I give this one piece of advice to the next pop star who is asked to sing the national anthem at a sporting event: save the vocal gymnastics and the physical gyrations for your concerts. Just sing this song the way you were taught to sing it in kindergarten — straight up, no styling. Sing it with the constant awareness that there are soldiers, sailors, airmen and Marines watching you from bases and outposts all over the world. Don’t make them cringe with your self-centered ego gratification. Sing it as if you are standing before a row of 86-year-old WWII vets wearing their Purple Hearts, Silver Stars and flag pins on their cardigans and you want them to be proud of you for honoring them and the country they love — not because you want them to think you are a superstar musician. They could see that from the costumes, the makeup and the entourages. Sing “The Star Spangled Banner” with the courtesy and humility that tells the audience that it is about America, not you.”
Mark Corallo
http://www.lifeafter50.com/Lifestyles/Leisure/THE-NATIONAL-ANTHEM-ISN-T-A-POP-SONG
Jack Nine Offsuit
February 22nd, 2011
10:43 am
“But you gotta let the health insurance companies compete across state lines”
That sounds good on the surface, but in reality it won’t help a bit. The health insurance companies would just do the same thing that all the credit card companies have done—they’d all relocate to the state that has the least amount of insurance regulation/oversight and the so-called “competition” between them all to set lower rates would be a farce.
Jack Nine Offsuit
February 22nd, 2011
10:54 am
Excellent article Jay. No true conservative should support caps on malpractice lawsuits. Wasn’t it just recently that Repubs were saying that the litmus test they would use for any new law was that it should 1) decrease gov’t size or intrusion in our lives; and 2) increase personal responsibility????
Caps on medical malpractice lawsuits do neither–in fact they promote the exact opposite. 1) Caps are arbitrarily set by the gov’t and are essentially the gov’t telling juries (i.e., citizens) that “we know what’s right and you don’t” even though the jury has heard all the facts and evidence and the gov’t hasn’t. 2) Caps decrease the personal responsibility of the medical providers that have negligently/recklessly harmed one of their patients. When you set arbitrary caps you are saying that wrongdoers should not be held fully accountable for the harm they have done. How is that consistent with conservative values?
If you say you are against frivilous lawsuits then pass laws that actually target frivilous lawsuits. Laws that impose caps on damages are designed to target the most worthy and meritorious lawsuits by “keeping the numbers low” on cases where the medical providers have screwed up the worst and done the most severe harm to their patients. And that’s just shameful.
buck@gon
February 22nd, 2011
4:35 pm
Jay,
You posted this last week, as you say. You are repeating yourself. Are you going to post this same stuff next week too?
Why?
Jay
February 22nd, 2011
4:49 pm
Buck, the opening paragraph gives you your answer. But of course, some people don’t read that far….
Lil' Barry Bailout
February 22nd, 2011
10:41 pm
Jay still isn’t posting an explanation from our representatives as to the constitutional basis for their votes?
Still lame, Jay, still lame. Where is your intellectual curiosity?
stevie b
February 22nd, 2011
10:47 pm
Great piece, Jay. It shows the virulent hypocrisy of these men we somehow elected to Congress. BTW, studies have consistently demonstrated that capping awards has done nothing to reduce malpractice insurance rates in those states where they have been instituted. Bad doctors are still bad. And often right-wing nutcases.
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