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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, September 19, 2013 ::
    Seems Republican healthcare alternatives are an addictive thing to follow, and, from a standpoint of principled federalism, a disheartening thing to watch.

    Apparently the Republican Study Committee has endorsed a bill by Rep. Phil Roe of Tennessee, H.R. 3121. It lacks the "tribunals" of the Price bill, but its mandated changes in medical malpractice law are even more detailed. For example: a $250,000 cap on both non-economic and punitive damages, a definition of, and evidentiary standard for, punitive damages that in effect reserves them for intentional torts, and a rule against telling the jury about the damage caps.

    Good arguments for and against all of these would be in play if they were being proposed by a state legislature as rules to govern med-mal suits within that state. But here it is Congress, proposing laws not only to govern suits in federal courts (which it can obviously do) but also in state courts, where a traditional state common-law cause of action - tort - is involved.

    As with the Price bill, everything else about the Roe bill looks excellent (given the short time I've had to eyeball it). In moving it forward, though, I hope this particular GOP House, which took over the majority in January 2011 with claims of unprecedented concern for constitutionality of legislation, will ask itself questions about "fair-weather federalism."

    Here is Rep. Roe's bill; see pp. 158 and following.

    N.B. Yes, the very involvement of the federal government in health care in any way would probably  have struck the generation of the Framers as beyond Congress's powers. For present purposes I'm assuming a lot of water under the bridge, and focusing on the federalism issue at hand that seems most acute: Congress telling state courts what their rules of decision are to be in a traditional matter of state, not federal, concern.

    :: David M. Wagner 10:53 AM [+] ::

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