Madison - St. Clair Record

Thursday, February 20, 2020

Obamacare Victory Could Boost Federal Medmal Limits Efforts

By Andrew Cochran | Jun 28, 2012


"If this law is upheld as constitutional by the Supreme Court, then there's virtually nothing that's beyond Congress's reach, and I think that would be a horrible, horrible precedent for the country."

So said Sen. Mike Lee (R-UT), member of the Senate Judiciary Committee, discussing the potential impact of a Supreme Court ruling affirming the constitutionality of the Obamacare individual mandate. Sen. Lee confirms what I've been trying to tell pro-Obamacare civil justice liberals for almost two years - that if Obamacare wins, federal medmal limits will be considered as more permissible under the Commerce Clause and therefore far more likely to be enacted.

Go look at my Archives, back to my post in January 2011 ( about Justice Thomas' warning on the unlimited danger of an unlimited Commerce Clause. Look at what anti-Obamacare legal experts such as Randy Barnett, Virginia Attorney General Ken Cuccinelli and John Baker wrote about H.R. 5, the bill to impose federal limits on awards in medical malpractice lawsuits. Read what I wrote in my post titled, Obamacare and Federal Tort Reform, Perfect Together. The theme is the same:

Obamacare and federal medmal limits, and indeed most federal tort reform bills, are based on the same abusive interpretation of the Commerce Clause, to the detriment of states' and individual rights. The Obama Justice Department and the tort reform advocates cite the same landmark Supreme Court ruling, Wickard v. Filburn, for their bills.

So if Obamacare wins, the cause of federal tort reform will advance. If Obamacare wins, courtroom doors around America could close. If Obamacare wins, victims of medical malpractice, defective drugs and devices, nursing home abuse, and deadly hospital errors could eventually see their lawsuits dismissed. Nationwide.

A few groups get this. Constitutional conservatives like Sen. Lee, the legal experts I cited, Tea Party leaders such as Judson Phillips, all get it. They want nothing to do with Obamacare OR federal tort reform.

The medical providers and associations get it too. They pushed Obamacare in Congress under secret deals with the Obama White House and backed it in court. They want millions of new patients, paid for by the rest of us. They push H.R. 5 and other federal tort reform bills because it gives them effective immunity from civil suits.

Pro-Obamacare civil justice liberals don't get it. I've seen post after post, article after article, from those who pledge to protect "justice for all" or whose entire business model depends on open courtrooms, nodding their heads at Obamacare in full bobblehead mode. I shake my head in wonder.

But soon, very soon, the Supreme Court will redefine the meaning of the Commerce Clause in the Obamacare decision. Then one side will win and another will lose, and we'll know more about the limits of federal power.

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