Gang of Six "Medmal Reform" Proposal is Unconstitutional

Andrew Cochran Jul. 24, 2011, 8:40am


The Gang of Six proposal includes a sentence to save "an unspecified amount through medical malpractice reform."

But that's unconstitutional. Sen. Coburn said so three weeks ago when he compared the idea to ObamaCare: "What I worry about as a fiscal conservative and also as a constitutionalist, is that the first time we put our nose under the tent to start telling Oklahoma or Ohio or Michigan what their tort law will be, where will it stop? In other words, if we can expand the commerce clause enough to mandate that you have to buy health insurance, then I'm sure nobody would object to saying we can extend it enough to say what your tort law is going to be."

Conservative Professor John Baker, a Federalist Society superstar, says enacting national medmal reform could boost ObamaCare: "Both national medical malpractice reform and Obamacare are radically at odds with our constitutional structure of federalism..."

Anti-ObamaCare Professor Randy Barnett also says federal tort reform is unconstitutional: "Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power."

Conservative and anti-ObamaCare legal scholars Ilya Somin and Jonathan Adler concurred with Barnett's op-ed. So did tort reform advocates Walter Olson ("most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems") and Ted Frank (referring to Congress: "It doesn't need to impermissibly federalize all medical malpractice litigation to accomplish reform.")

And Constitutional scholar Rob Natelson of the Independence Institute wrote the first letter to House Republicans on this subject months ago, warning against the medmal reform bill there: "H.R. 5 flagrantly contravenes the limitations the Constitution places places upon Congress, and therefore violates both the Ninth and Tenth Amendments... Here's a real irony: The Republicans supporting HR 5 justify it by parroting exactly the same ridiculous 'Commerce Clause' claims the President uses to justify ObamaCare."

There's more. Rep. Ron Paul, a medical doctor, said during the Fox News South Carolina Presidential debate that federal medical malpractice reform is unconstitutional: "It's a state matter; tort law is a state matter."

Veteran GOP Congressmen such as Rep. John Duncan agree with Sen. Coburn and Dr. Paul: "I have faith in the people - I have faith in the jury system. It's one of the most important elements of our freedom, and it was so recognized in the Constitution..."

And the nonpartisan National Conference of State Legislators wrote to Congress slamming H.R. 5, the "medmal reform" bill: "Federal medical malpractice legislation inappropriately seeks to preempt various areas of state law."

Mark Meckler, Tea Party Patriots co-founder and coordinator, says "'It's not for the federal government to be adjusting the legal system of individual states."

This week, veteran social conservative leader Ken Connor, former president of the Family Research Council, criticized federal tort reform as unconstitutional.

I'm disappointed that Sen. Coburn flip-flopped on his statement of three weeks ago and that the Gang of Six didn't research the constitutionality of the medmal proposal before including it.

There are lots of great ideas for reducing health care costs out there in the medical community, readily available to anyone who has an Internet connection. The rest of Congress shouldn't ignore the Constitution and should drop that sentence from future deliberations.

More News