Legislation that caps medical malpractice awards and limits
attorney fees cleared the House 229-196 on March 13. That’s the
seventh malpractice “reform” since Republicans took over the House
in 1995. They can expect rougher going in the Senate. Meanwhile,
the hypocrisy on both sides of the aisle was thick enough to
slice.
Democrats professed their abiding faith in federalism. Never
mind that those same Democrats were apoplectic when the Supreme
Court held in 1995 that federal power is not plenary: states were
perfectly capable of prosecuting the possession of guns near
schools (United States v. Lopez). Five years later, the
Court held that victims of gender-motivated violence could not sue
their alleged assailants under federal law (United States v.
Morrison). Predictably, both baby steps to rein in federal
authority were met by caterwauling from the Democratic left.
But medical malpractice is different, says Melvin Watt (D-NC).
“It should be about setting a public policy framework that the
founding fathers set up. And for the life of me, I can’t figure out
what the federal nexus is.” Amen to that. Even newly minted
Democratic federalists are better than no federalists at all. And
surely the Democrats would be joined by Republicans eager to
reaffirm the GOP’s traditional respect for state sovereignty as a
check on overweening federal power.
Well, no, actually the Republicans had a change of heart. Senate
Majority Leader Bill Frist (R-Tenn.) insists that “we, at the
federal level, absolutely must respond.” Rep. Tom Feeney (R-Fla.)
claims to have “wrestled with the issue” of federal damage caps but
decided they were necessary despite more than two centuries of
state control over virtually all tort and contract litigation.
After all, said Feeney, it would be unfair if doctors, concerned
about malpractice insurance premiums, denied treatment to Florida
constituents. How’s that for an enduring constitutional
principle?
No doubt, Feeney is correct when he explains that outlandish
jury verdicts can drive up insurance premiums and may cause doctors
to curtail services. And no doubt that scene could unfold in more
than one state — perhaps threatening a malpractice mess
nationwide. But not every national problem is a federal problem.
State legislators, courts, medical practitioners, and their
patients are not powerless. More than three dozen states have
passed damage caps. All 50 states have passed, or are considering,
various tort reform proposals. Doctors have a final remedy when
state courts permit abusive lawsuits. They can withdraw from doing
business there. Indeed, physicians have staged high-profile
walkouts in at least five such states. That remedy honors the
federalist idea that the states serve as 50 experimental
laboratories. Ultimately, consumers in oppressive states will have
to choose between access to medical care and jackpot jury awards.
As more doctors leave, the choice will become obvious.
When Congress bothers episodically to pretend that it has
constitutional authorization for its laws, the Commerce Clause is
more often than not the cited rationale. The original purpose of
that clause was functional: to assure the free flow of trade among
the states. Of course, the large majority of federal statutes have
nothing to do with barriers to trade. Yet Congress has shamelessly
distended the clause — unleashing it from the operative word
“commerce” — preferring instead to posture on “hot button” issues
like guns near schools and violence against women. The result: a
federal government that assumes dominion over all manner of human
conduct, regulating anything and everything.
The fundamental principle is this: No matter how worthwhile an
end may be, if there is no constitutional authority to pursue it,
then the federal government must step aside and leave the matter to
the states or to private parties. The president and Congress can
proceed only from constitutional authority, not from good
intentions alone. If Congress thinks it necessary to expand its
powers, the Framers crafted an amendment process for that purpose.
But too often, rather than follow that process Congress has
disregarded the limits set by the Constitution and gutted our
frontline defense against concentrated federal power.
Unhappily, the Supreme Court’s recent Commerce Clause edicts
have left too much wiggle room for a Congress bent on enacting
regulations that appease politically connected constituents. That’s
not what federalism is all about. Federalism is a system of dual
sovereignty, of divided authority, with the states checking
excessive power in the hands of the federal government and vice
versa. Most particularly, federalism limits the federal role to
those few and defined powers enumerated in the Constitution.
Nowhere in that document — or in its “emanations and penumbras” —
is there a federal power to set rules that control state lawsuits
against doctors for malpractice. Even if some of the damage awards
are shocking, they are not commerce; they are not interstate; and
they are not the business of Congress.
