National medical malpractice reform could boost Obamacare

John Baker Contributor
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Lawyers for states challenging the constitutionality of Obamacare must privately think that with friends like House Republicans, they need not worry about enemies in the Justice Department.

House Republicans hope to nationalize medical malpractice law, which is traditionally a matter of state tort law, by passing H.R. 5, a bill that would wipe out all state medical malpractice laws and complete the nationalization of healthcare. Passage of H.R. 5 would undercut arguments that Obamacare is unconstitutional.

To justify their efforts to nationalize medical malpractice law, House Republicans are stretching the Supreme Court’s New Deal Commerce Clause jurisprudence almost as far as Democrats did for Obamacare. Both national medical malpractice reform and Obamacare are radically at odds with our constitutional structure of federalism, though Obamacare is especially radical because it represents the first time that the federal government has required people to purchase a product (health insurance).

What compels House Republican leaders to ignore the Constitution? Nationalizing medical malpractice law would not necessarily protect hometown doctors. Some states currently offer doctors better protection, without being subjected to federal bureaucrats. Other states would do so if doctors worked their own state legislatures, rather than relying on a Washington lobby, the American Medical Association.

The explanation for the eagerness of House Republican leaders to nationalize even more of the economy is a simple reality: both Congressional Democrats and Congressional Republicans like the New Deal interpretation of the Commerce Clause, which allows them to expand national power. They would just do so for different purposes.

The failure of both parties in Congress to respect constitutional federalism will not be lost on the Supreme Court. Seeing that Republicans are as willing as Democrats to nationalize different parts of healthcare, the justices might conclude that there is a Congressional consensus to nationalize all of healthcare. Since justices tend to defer to Congress, that might be enough to tip the scales in Obamacare’s favor.

Dr. John Baker is a Distinguished Scholar at Catholic University Law School and a Professor Emeritus at LSU Law School.