Don’t Let Congress Seize Control Of State Malpractice Laws

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Rep. Louie Gohmert Congressman, Texas 1st District
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In the realm of the rights of each individual State, nothing should be more sacred than a State’s right to make its own laws regarding its own lawsuits, pending in its own State courts. Activities that occurred wholly within the State’s own borders, involving people that are all residents of that specific State, fall under the State’s own jurisdiction. That would normally be what informally is called a “no-brainer.” But, not so fast – not while the United States Congress is in session.

Here’s what the founders agreed upon in the 10th Amendment to the United States Constitution:

“The powers not delegated to the United States by the Constitution, nor prohibited by the States, are reserved to the States respectively, or to the people.”

The founders wrote this provision to round out the Top Ten Amendments called the “Bill of Rights,” with the hope that the federal government would be one of limited power, subject to the will of the people – not the massive, meddling, domineering, all-powerful bureaucracy that controls today. James Madison contoured the Bill of Rights in order to fulfill the promise that, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

In discussions over the questionable propriety of the United States Congress taking complete control over state court lawsuits, I and others stressed that we should not be doing this.

Republican Members of Congress asked, “Louie, don’t you want other states to have the good tort reform that Texas had?”

My answer has been, “That is completely up to each state.”

“No, Louie, we need to help them!”

And we know what Reagan said about the federal government being here to help you.

As a result of the Republican controlled Congress coming to “help” states with their own tort law, we are stepping in where even liberal Democrats have feared to tread because it was so clearly intruding into state law.

You may wonder what is the nominal basis for this intrusion. The federal nexus, we are told, is that if there are federal dollars used in any aspect of the healthcare, then our newly created federal state law reforms supersede your state laws. We are supposed to be comforted by the provision that if your state legislature has made your state’s tort laws more conservative than the federal law, then our federal creation will not supersede your state law.

The danger warnings are sounding loud and clear for some of us. The subliminal warnings that Republican leaders are not hearing are saying:


In Texas, those reforms were the result of a long, difficult battle that will not likely be won again.

You probably wondered – what is the incentive to put all the state tort reforms at risk, since conservatives have worked so hard to get them in so many states?  The answer is: MONEY.

According to the (usually wrong, but never in doubt) Congressional Budget Office (CBO), there is an illusory amount of hundreds of billions of dollars that will be saved. This is despite the CBO margin of error for their score on Obamacare ultimately being somewhere above 260%, plus or minus. With the horrendous lack of accuracy by CBO, their assessments should not be worthy of serious consideration.

The United States Congressional Republicans often point to the tort reform passed in Texas as the model to replicate. However, now that Congress has shown that it is OK to marginalize states’ rights in their own state courts, those reforms will be killed and removed just as soon as a Democrat swings the gavel again in Washington.

Repealing state tort law in state courts around the country is a night into which we should not go gently, but the United States House of Representatives just went there.

As for any other areas of law specifically reserved to the states and the people, Washington Republicans have now established that if you can find any federal money anywhere in the system (which you always can now), the United States Congress has a superior right to take over your state and local laws.

Ding Dong – the 10th Amendment is dead . . . almost.

Congressman Louie Gohmert is the Vice Chairman of the House Natural Resources Committee and the Vice Chair of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. He is also a member of the House Freedom Caucus. Prior to being elected to serve in Congress, he was elected to three terms as District Judge in Smith County, Texas and was appointed by then Texas Governor Rick Perry to complete a term as Chief Justice of the 12th Court of Appeals.