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.