Randy Barnett Are Senate GOP Tort Reformers Federalists in Name Only


Professor Randy Barnett, co-counsel in the leading lawsuit case against ObamaCare and likely to argue the case before the Supreme Court, takes aim again at federal tort reform proposals in a post on “The Volokh Conspiracy,” this time at the inclusion of S. 197 the “MCAP Act’ tort reform bill, in the Senate GOP jobs plan released last Thursday. “Over the summer I criticized a House Republican medical malpractice reform as “fair-weather federalism” in this op-ed in the Washington Examiner: Tort reform and the GOP’s fair-weather federalism. Now Senate Republicans are emulating their colleagues in the House by including medical malpractice reform as part of their new “jobs” bill. ” I’ve quoted from that piece often here, most recently in my letter to the deficit reduction “supercommittee” considering cuts to future federal spending.

Professor Barnett approvingly quotes from Carrie Severino’s post critical of S. 197 on NRO’s “Bench Memos” today, and personally criticizes the Senate Republicans: “Yes, you read that right. Senate Republicans are claiming that Congress has power over the judiciary of the states because state courts are an activity that “affect[s] commerce.”

He then adds, “With friends like these, constitutional federalism does not need enemies. Can we coin a new pejorative FINO: “Federalists in Name Only”? Oh well, I guess not. But the best thing that can be said about this proposal is that it won’t become law.”

Let’s hope not. I am actually most concerned that pro-tort reformers among the House Republican leadership will ignore the Constitution, transform the Senate GOP plan into a House bill, and force their members into an up-or-down vote as a test of allegiance. Seventh and Tenth Amendment Advocates need to contact the Senate and House and tell them to drop this idea.