The U.S. House Budget Committee Chairman, Rep. Paul Ryan, unveiled a budget proposal designed to cut trillions in federal spending and the deficit. Inside the 73-page proposal, in a section titled, “Fulfilling the Mission of Health And Retirement Security For All Americans,” is a short paragraph which would cap non-economic damages in medical liability cases:
Ensure that the cost of frivolous litigation is not passed on to consumers in the form of higher health-care premiums by capping non-economic damages in medical liability lawsuits. (Page 44.)
I’m always searching the writings of the Founding Fathers to write on their devotion to the unalienable right to bring civil suits before a local jury of our peers, as guaranteed by the Seventh Amendment to the Constitution and centuries of American and pre-colonial British law. My work has taken a turn into the development of the Commerce Clause and the interaction of that clause with the Bill of Rights, including not just the Seventh, but also the Tenth Amendment on states’ rights. In that regard, a quote by a delegate to the Constitutional convention in 1787 and voted to ratify Constitution, who later served as a historic Chief Justice of the Supreme Court, is pertinent to any discussion of the meaning and scope of the Commerce Clause. Chief Justice John Marshall established the Supreme Court’s initial interpretation of the Commerce Clause in Gibbons v. Ogden, 22 U.S. 1 (1824). Many politicians and commentators argue that Gibbons supports an expansive reading of the Commerce Clause in order to support their political views for pre-emption of state laws and courts (many Republicans) or for ObamaCare (many Democrats), but they conveniently (or purposefully) overlook one key paragraph of Marshall’s opinion:
That inspection laws may have a remote and considerable influence on commerce will not be denied, but that a power to regulate commerce is the source from which the right to pass them is derived cannot be admitted. The object of inspection laws is to improve the quality of articles produced by the labour of a country, to fit them for exportation, or, it may be, for domestic use. They act upon the subject before it becomes an article of foreign commerce or of commerce among the States, and prepare it for that purpose.They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass. (Emphasis mine.)
So Marshall explicitly stated that “health laws of every description” are reserved for the states and should never be the subject of federal legislation. Marshall’s express limitation on federal power under the Commerce Clause is a key element in an objection to H.R. 5, the bill to limit all health care-related suits, posted on the Independence Institute’s website by Rob Natelson, conservative Constitutional scholar and Senior Fellow in Constitutional Jurisprudence at the Institute. Natelson wrote to Congress with a complete Constitutional analysis of the bill, which you can download from here (4.7MB Acrobat file). I posted a short summary of that bill here on Tuesday. But a particular quote merits special attention:
In the Constitution, the word “Commerce” encompasses trade in goods among merchants and certain related activities, such as commercial paper, transportation, and cargo insurance. It does not include other economic activities, and it certainly does not include health care or the states’ administration of civil justice.
I urge readers to send their Congressman, especially any Republican, a copy of the Natelson letter to prove to them that a highly respected Tea Party-side Constitutional scholar condemns Congressional efforts at “tort reform,” and not just over health care-related cases.