Posted by Rob Natelson
It’s a stunning betrayal of all those hardworking, pro-Constitution Americans who gave U.S. House Republicans their majority.
Republicans controlling the House Rules Committee have added sweeping new mandates on the states to a bill repealing part of Obamacare. The result is revised H.R. 5.
Just on good government grounds, those two very different items do not belong in one bill. But what is particularly thuggish is how it forces conscientious members of Congress to violate their solemn oath to uphold the Constitution. If you vote “aye,” you get the unconstitutional mandates. If you vote “no,” then you vote to retain an unconstitutional part of Obamacare.
It’s really true.
THE FIRST PART of revised H.R. 5 is a resurrected zombie that was the original H.R. 5. Although promoted as “medical malpractice reform,” the measure is actually a big step toward federal control of state court systems. Essentially, it’s a lengthy set of mandates telling state and federal judges how to run their own courts whenever they deal with any health-care-related personal injury cases. I’ve written on this subject before, so only a short take is necessary here.
This measure tells state judges and legislatures what damages they can allow, when they can allow them, how to instruct their juries, what the time period for bringing suit must be, etc. etc. One section beginning with the words “The provisions governing health care lawsuits set forth in this title preempt . . . State law” is given the Orwellian title, “State Flexibility and Protection of States’ Rights.”
THE CLAIMED JUSTIFICATION
How do its sponsors justify this under the Constitution? The same way the national health care zealots justify Obamacare: The Constitution gives Congress power to regulate interstate commerce, so Congress may regulate everything that “affects” commerce, presumably including breathing.
Of course, this justification is bogus. When the Constitution was being debated, its supporters emphasized that personal injury law within state boundaries would be a state concern. And although the modern Supreme Court has smudged constitutional boundaries a good deal, it has never authorized congressional micro-meddling of state judicial systems. On the contrary, the Supreme Court has ruled repeatedly that states and state courts are constitutionally free of most federal “commandeering.” (Incidentally, one of the first cases students read in law school is a 1938 case, Erie Railroad v. Tompkins, holding that common law personal injury suits are reserved to the states by the Tenth Amendment.)
THE OTHER PART of revised H.R. 5 would repeal a portion of Obamacare that is so ludicrously unworkable, it’s probably doomed for the trash heap anyway. (Even many Democrats have signed up for repeal.) This is the portion creating the Independent Payment Advisory Board (IPAB)—which, in a display of telling incompetence, the Obamacare law consistently calls by a different name until making a correction 834 pages into the 906-page statute.
In a nutshell, IPAB is 15 people (18, including non-voting members) given the impossible job of top-down control of Medicare expenses. And they have to do all this, the law says, without rationing care, raising premiums, or restricting benefits. In other words, squeeze the blood out of physicians and other providers. Of course, as everyone now recognizes, this will just force providers to stop seeing Medicare patients.
As if this were not absurd enough, the Obamacare law tries to give IPAB “proposals” the force of law, unless Congress overrides them. The law then tries to prevent both judicial review, and to obstruct future Congresses from overriding IPAB “proposals” or repealing IPAB. (The Obamacare law even tries to tell future Members of Congress how they must title their repeal resolution!)
So, Representatives, here’s the choice your Rules Committee has given you: Vote for the unconstitutional mandates or vote for the unconstitutional health controls.
Lord Voldemort couldn’t have said it any better.
Members have only till Monday, March 19, to propose amendments.
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See: www.constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.
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