Earlier this month, the Senate GOP cobbled together a hodgepodge of longstanding Republican objectives and called it a “jobs” bill in an attempt to neutralize President Obama’s popular jobs plan. One provision of this makeshift “jobs” plan would impose damage caps on medical malpractice suits in both state and federal court — a tort reform proposal that has been a centerpiece of GOP health care policy for many years.
Yet, in an interview with ThinkProgress’ Scott Keyes, Republican Sen. Mike Lee (R-UT) said he has very serious doubts about whether this longstanding GOP plan to restrict state courts is even constitutional. According to Lee, the federal government has full constitutional authority to tell federal courts how to operate, but only state legislatures have the same power to tell state courts how to operate:
LEE: Congress needs to be very careful when it enters into a uniquely state law area like tort. So tort reform needs to be undertaken very carefully insofar as it’s done at the federal level. There are some tort suits that proceed in federal court and, um, but if we venture much outside of that, particularly if we get into telling state courts how to interpret state law, that can be constitutionally problematic.
KEYES: [State tort reform] might not be justified as far as the enumerated powers go?
LEE: Correct, correct. . . . [tort reform] is something that can be addressed in some way at the federal level, but most of it needs to be done at the state level.
Lee is a notoriously bad judge of what is and is not constitutional, and he is probably wrong to suggest that the GOP’s tort reform bill is unconstitutional. Congress’ power to “regulate Commerce…among the several states,” gives it broad authority over the national health care market (although there are two Supreme Court cases that at least raise the possibility that a court could find the GOP’s plan unconstitutional).
Ultimately, however, it may not matter whether the GOP’s bill is constitutional or not. What does matter is that Lee promised last March to filibuster any bill that does not have “a clear and obvious basis connected to one of the enumerated powers” of the Constitution. Lee clearly doesn’t think that the GOP tort reform plan has this clear and obvious basis, so he is obligated by his own word to filibuster the GOP’s “jobs” bill.
More importantly, Lee’s objections to the GOP tort plan should be deeply embarrassing to the armies of GOP operatives who declared themselves the keepers of the Constitution the minute the Affordable Care Act appeared likely to become law. For nearly two years, Republicans have engaged in an unceasing lecture on how the ACA’s supporters were wrong to pass a bill that doesn’t comply with some entirely fabricated constitutional limit that no one had ever heard of before it was invented to attack the ACA. Now we learn that the GOP cannot even satisfy their own senators that a centerpiece of their health care plan is constitutional. Those who live in glass houses should not practice constitutional law.