Hat tip to Daniel Burton at Publius Online for this interesting story about potential federalism hypocrisy from the right side of the U.S. Senate.
In preparing its response to President Obama’s famous “pass this” jobs bill, Senate Republicans — specifically Senators Inhofe, Vitter, Burr, Cornyn, and Alexander — are resurrecting a prior house bill (previously known as the Help Efficient Access Timely Healthcare, or “HEALTH”) as the Medical Care Access Protection Act of 2011 (“MCAP”).
MCAP is nationwide tort reform, which would create a federal law of medical negligence that would not only govern medical tort suits in federal courts, but would govern medical tort suits in state courts and medical tort claims in private non-judicial proceedings, such as mediation and arbitration.
What MCAP Does
Specifically, MCAP would:
- Impose a nationwide statute of limitations of 3 years on any tort claim based on the the provision of “healthcare goods or services” by any “healthcare provider” or “healthcare institution” (collectively encompassing everyone from nurses to hospitals).
- Impose, for the above-referenced class of cases, a cap on noneconomic damages (defined as noncompensatory damages, i.e., punitive damages) of $250,000 per claim per defendant (capped at $500,000 total).
- Impose, for the above-referenced class of cases, a mandatory minimum sanction for state (or federal) Rule 11 violations (Rule 11 is the rule that, as a practical matter, prohibits frivolous lawsuits). Ordinarily, the decision to sanction, and severity of the sanction, is left to the discretion of the trial court.
- Require, in the above-referenced class of cases, the assessment of pure comparative fault and not allow damages to be assessed against any party for an amount inconsistent with its proportion of fault (i.e., no absolute or modified [51%] contributory negligence bar).
- Allow a court to alter or veto any contingent fee arrangement the court deems unfair, and to redirect monies that would, under a contingent fee arrangement, go to attorneys, to a plaintiff if the court concludes that doing so would be in the “interests of justice.”
MCAP does qualify its impact on state law somewhat. For example, MCAP allows for states to set their own maximum cap for noneconomic damages — whether that amount is greater or lesser than the $250,000/$500,000 cap that MCAP would otherwise imposed. In other words, MCAP only sets a limit on noneconomic damages where state law has not already set a limit. Furthermore, MCAP does not prohibit states from enacting laws providing greater protections to healthcare providers.
Despite those qualifications, MCAP, if it were passed, would be a major — indeed, almost unprecedented (?) — legislative encroachment on the autonomy of state courts, even though it would not alter much of the substantive law governing medical tort claims. The current consensus seems that the bill has zero chance of being passed in its current form, but let’s not allow that to prevent us from dissecting it. 
Constitutional Basis
I know the question you’re dying to ask: Is this kind of encroachment constitutional?
Here’s the purported constitutional basis for MCAP:
Congress finds that the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce by contributing to the high costs of health care and premiums for health care liability insurance purchased by health care system providers.
Sound familiar? It should. Read this from Patient Protection and Affordable Care Act (a/k/a Obamacare):
(1) IN GENERAL — The individual responsibility requirement provided for in this section (in this section referred to as “the requirement”) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).
(2) EFFECTS OF THE NATIONAL ECONOMIC AND INTERSTATE COMMERCE — The effects described in this paragraph are the following:
(A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.
(B) Health insurance and health care services are a significant part of the national economy. . . .
(C) The requirement, together with the other provisions of this Act, will add millions of new consumers to the health insurance market, increasing the supply of, and demand for, health care services. . . .
. . .(E) Half of all personal bankruptcies are caused in part by medical expenses. . . . .
(F) Under the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.), the Public Health Service Act (42 U.S.C. 201 et seq.), and this Act, the Federal Government has a significant role in regulating health insurance which is in interstate commerce.
A Federalism of Convenience?
Both MCAP and Obamacare involve health care. The Democrats justified Obamacare by reference to the so-called “substantial effects” doctrine of the Commerce Clause, and the Republicans do the same for MCAP. Is this just pure hypocrisy from the Republicans, or is there a legitimate basis for distinguishing (at least as a matter of constitutional enacting authority) Obamacare and MCAP?
As a matter of constitutional law, I don’t think there is a basis for distinction. Both bills claim on the Commerce Clause as enacting authority, involve the same industry, and rely on the Wickard v. Filburn substantial effects line of cases.
So, yes, there’s clearly some hypocrisy here. But I don’t think that Republican support for MCAP is pure hypocrisy (please note the emphasis), either, and let me tell you why. I suspect that if you were to press Republicans on the differences between the two bills they would say something like, “MCAP doesn’t require you to do (or buy) anything, while Obamacare does.”
An admission like this helps us drill down to what the furor over Obamacare’s insurance mandate is really about. In the judicial challenges to Obamacare, Republicans are trying to use federalism to do the constitutional heavy lifting that, in a prior time, would have been done by the Due Process Clauses of the Fifth and Fourteenth Amendments. As much as Republicans claim the judicial challenges to Obamacare are about ensuring that enforceable limits to Congress’ Commerce Clause authority remain (and make no mistake about it, they can make a good case for their position), what these challenges are really about is constitutionally enforcing a nationwide sense — a very smart federal judge referred to it as an intuition — that government should not be telling us what to buy and what not to buy when it comes to matters of our personal health.
In other words, if it wasn’t clear already, MCAP just makes it more clear that Republicans’ problem with Obamacare isn’t that it upsets the federal division of powers, it’s that it runs afoul of their idea of basic economic liberty. I referenced this briefly in a prior post dealing with Republican Presidential candidate Michelle Bachmann’s stance on state health insurance mandates, and received some interesting comments, especially from Ben Lusty, that I would recommend to readers interested in the relationship between economic liberty and health decisions.
So, do I think MCAP is just a matter of Republican hypocrisy on federalism? Well, to a point, yes, and Republicans should be called on it. Cries of hypocrisy are the price of embracing federalism primarily as a convenient stand-in for substantive policy provisions. But I also think that for many Republicans (whether these lawmakers are among them, I’m not sure) it’s not conscious hypocrisy. To many of today’s Republican federalist-types, what they really mean by federalism is substantive — as opposed to subject-based — limits on the legislative power of the national government. And when you look at MCAP from that perspective, Obamacare is quite easily distinguishable, and I suppose MCAP isn’t hypocritical at all.
