:: welcome to


:: 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 ::

-- Eve Tushnet

"Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of Ninomania for Frankfurter."
-- Mark Tushnet
(I agree, and commented here.)

"The preeminent Scalia blog"
-- Underneath Their Robes

 Subscribe in a reader

Site Feed

Also please visit my opera blog, Box Five!

    follow me on Twitter


    Above the Law, by David Lat



    Duncan's Con Law Course Blog

    Eve Tushnet

    Eye of Polyphemus, by Jamie Jeffords

    How Appealing

    Hugh Hewitt

    Justice Thomas Appreciation Page

    Legal Theory Blog

    Lex Communis

    Opinio Juris


    Paper Chase (from JURIST)

    Point of Law (Manhattan Inst.)

    Professor Bainbridge

    Public Discourse

    Redeeming Law, by Prof. Mike Schutt

    SCOTUS Blog

    Volokh Conspiracy

    WSJ Law Blog

    Other fine sites:

    Alexander Hamilton Inst. for Study of Western Civilization

    Ave Maria School of Law

    Center for Thomas More Studies

    Family Defense Center

    The Federalist Society

    The Founders' Constitution

    George Mason University School of Law

    Immigration and Refugee Appellate Center

    Judged: Law Firm News & Intelligence


    Law Prose (Bryan Garner)

    Liberty Library of Constitutional Classics

    National Lawyers Association (alternative to ABA)

    Supreme Court decisions

    The Weekly Standard

    Something I wrote about marriage

    lawyer blogs


    :: Monday, September 16, 2013 ::
    Will there be an Obamacare repeal-and-replace bill coming out of the House this fall?

    Well, Rep./Dr. Tom Price's Empowering Patients First Act, H.R. 2300, seems to have some momentum. It has many good features. But - and this is its relevance to a blog about constitutional law - it also has some features that make me squint a little.

    Section 501 of the bill is about lawsuit reform. Fine. But if it this is to be done at the federal level, greater caution is needed, on federalist principle. This section of the bill imposes significant burden-of-proof rules on all courts dealing with “health care lawsuits,” including medical malpractice.

    Which forces the question: under a properly constrained view of Congress's powers, does Congress have power to tell state courts what rules of law they are to apply in cases originating in state law? Is a federal law (or a section of one) made "in pursuance of" the Constitution if its primary function is to rewrite the states' tort law? 

    Section 501 also directs the HHS Secretary to form partnerships with certain named doctors' organizations “to develop guidelines.” Now, quite apart from how tired Obamacare should already have made us of federal legislation that "directs the HHS Secretary...," this should raise some more red flags for constitutional conservatives. In the heady days of the early New Deal, Congress authorized the President, to consult with business organizations in setting the wage and price levels under the National Industrial Recovery Act. The Supreme Court struck this down, in a unanimous decision – A.L.A. Schechter Poultry v. U.S. – a decision that has, it is true, never been replicated, but has also never been overruled or even questioned by the Supreme Court.

    I don't mean that Title V of the Price Bill is unconstitutional in the same way the NIRA was; only that it pushes an envelope that has been found unconstitutional in the past, and found so for good reason. The Constitution makes Congress our lawmakers. Though this Non-Delegation Doctrine has proved difficult to enforce judicially, given that the executive branch has the enforcement power and all enforcement requires interpretation, one long "delegation step" further is taken when Congress directs a federal agency to work with outside parties (other than through the APA notice-and-comment process, of course.) 

    Attention should be paid as well Section 502: “Grants to Create Administrative Health Care Tribunals.” Back in Section 501 we found the bill telling state courts what rules to apply. Here it takes legal matters out of state courts – and away from state juries altogether – transferring them to new “tribunals.” Wasn't this one of the complaints against both HillaryCare and Obamacare – that they created too many unaccountable decision-making panels?

    Creating “tribunals” (or even, to be more precise, giving states strong incentives to do so) does something very similar at the state level, and also forces us to reflect on another endangered value – that of the civil jury. Here, two conservative goals may clash. Yes, some civil juries have reached verdicts (not all of them in medical malpractice cases) that were based on strange legal theories, awarded disastrous damages based on them, and generally drove up insurance rates and discouraged innovation thereby. All the same, it should not be left to liberals to remind us how important our Framers thought civil juries were.

    The original Constitution, as it came out of the Convention for ratification, already protected the right to a jury in criminal cases.  The absence of similar protection for juries in federal civil trials was an objection, the force of which took the pro-ratification forces by surprise. As part of the promise-giving that assured ratification, the Bill of Rights added, in the Seventh Amendment, protection for the right to jury trial in most (in effect, all) federal civil cases as well. 

    Of course it applied only to the newly-created federal courts, and even today, the Seventh has not been “incorporated” in its entirely against the states. But states protect the right to civil juries in their state constitutions, and almost all did so in the 1789-91 period, crucial for evaluating the Bill of Rights.

    I mentioned that Sec. 502 of the Price Bill gives incentives to form tribunals; it does not force states to do so. Problem gone? No. As a practical matter, states do what the federal government gives them grants to do. The Supreme Court considered, and unfortunately rejected, the argument that federal grants to states are de-facto coercion of state governments. South Dakota v. Dole. Despite Chief Justice Rehnquist's authorship, most conservative Court-watchers have felt this was wrongly decided – that it opens a wide back door for the dismantling of federalism.

    But Congress need not use every power the Court has said it possesses. It need not even agree that it possesses every power the Court has said it does. From the Court allowing Congress to do by grant-making what it cannot do by direct legislation, it does not follow that Congress should do so.

    "But isn't decision-making by expert tribunals a good thing?" Well on that hinges the whole rise of the administrative state, and the concurrent loss or real representative democracy, doesn't it? Interesting thing - the Founders thought juries were important to representative government, not just to deciding facts. Nosing them out of health care is scary; bad enought that Obamacare does so much of it.

    Rep. Price deserves praise for his work, and most of his bill deserves passage. But federalism and civil juries are two constitutional values that should not suffer injury in the imperative fight to repeal and replace Obamacare.

    :: David M. Wagner 6:39 PM [+] ::

    Site Meter
    This page is powered by Blogger. Isn't yours?