Earlier this month, Senate Republicans cobbled together many of their longstanding objectives, and called it a “jobs” bill to try to draw attention away from President Obama’s popular American Jobs Act. Yet this plan backfired on the Senate GOP leadership when Tea Party lawmakers began lining up to denounce a key provision of their makeshift “jobs” bill as unconstitutional. This provision — a proposal to impose damage caps on medical malpractice suits in both state and federal court — has now attracted the ire of yet another Tea Party heartthrob, Virginia Attorney General Ken Cuccinelli:
With Senate Bill 197 — legislation that would have the federal government dictate how state judges are to try medical malpractice cases and cap what state courts may award — several Republican senators have reminded us that federal impositions on states that run contrary to the U.S. Constitution and to the spirit of federalism have never been the sole prerogative of just Democrats. . . . This legislation expands federal power, tramples the states and violates the Constitution. And if it were ever signed into law — by a Republican or Democratic president — I would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law in March 2010 (15 minutes later).
In reality, the constitutional case against federal tort reform is very weak. Congress enjoys broad authority to regulation national economic markets, such as the market for health care, and that includes the power to regulate those markets badly. If people don’t like the laws their elected officials put in place, our democratic Constitution empowers them to vote those officials out of office — it does not empower the law’s opponents to simply declare anything they want unconstitutional.
Nevertheless, Cuccinelli’s strident opposition to this law — and that of others such as tenther Sen. Mike Lee (R-UT) — should stand as a warning to Republicans who raced to embrace a crackpot theory of the Constitution the minute President Obama signed a health care law they disapproved of. Federally imposed tort reform has been a centerpiece of GOP health care policy for many years, and now this longstanding Republican goal many be unachievable because too many Republican lawmakers were conned into embracing Cuccinelli and Lee’s tenther vision of the Constitution.
Those that live by crackpot distortions of our Constitution, die by crackpot distortions of our Constitution.