Commentary

Constitutional Malpractice

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.

For starters, the Democrats professed their abiding faith in federalism. Never mind that those same Democrats were apoplectic when the Supreme Court held in United States v. Lopez (1995) that federal power is not plenary: states are perfectly capable of prosecuting the possession of guns near schools. Five years later, in United States v. Morrison, the Court held that victims of gender-motivated violence could not sue their alleged assailants under federal law. Predictably, both baby steps to rein in federal authority were met by caterwauling from the Democratic left.

But medical malpractice is different, says MelvinWatt (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-TN) insists that “we, at the federal level, absolutely must respond.” Rep. Tom Feeney (R-FL) 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.

Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.