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Neither tort reform nor the “War on Drugs” trump the Tenth Amendment

It is de rigueur for some politicians to declare themselves believers in constitutionally limited government.

It seems this belief is limited, all too often, when the principles of constitutionally limited government conflict with something they believe to be a “great idea.”  Apparently “great ideas” trump the constitution. 
Many Republicans are proponents of tort reform. They believe frivolous lawsuits drive up the cost of doing business and that capping damages in civil lawsuits is a great idea.
There is such a bill pending in Congress. It would

“…put a three-year statute of limitations on medical lawsuits, cap non-economic damages at $250,000, and limit punitive damages to $250,000 or twice the economic damages, whichever is greater. It would apply to lawsuits in federal and state courts…”

Apparently this is such a great idea it trumps the Constitution. 
Nowhere among the enumerated powers of Article I, Section 8 is Congress given the authority to tell states how to run their civil justice systems. To argue that the Commerce Clause authorizes Congress to do so is a purely progressive notion. It is a repudiation of the Tenth Amendment. It is  repudiation of a constitutionally limited government. 
Yet it is Republicans, the party that proclaims itself the “limited government” party, that is behind this bill.
Those Republicans in favor of this bill believe tort reform trumps the Constitution.
They either do not understand what they are doing or they have very malleable principles.
Likewise, any congressperson proclaiming to be a believer in the Tenth Amendment should be working to defund the DEA’s effort to crack down on medical marijuana providers in states that have legalized the plant for such use.  To the extent marijuana is planted, cultivated, harvested, sold and consumed entirely within a state, one cannot be consistent and support both the DEA enforcement of these federal laws and the Tenth Amendment. The federal government has zero legitimate authority to enforce federal laws against such medical marijuana. (Yes, I know the U.S. Supreme Court has ruled to the contrary. However, the Supreme Court can declare the sun is the moon, but it does not make it so.)
The current conflict between the DEA and state law presents an excellent opportunity for states to assert their sovereignty under the Tenth Amendment. Colorado, for example, should tell the federal government that enforcement of federal marijuana laws in Colorado is ultra vires and msut be stopped. If the feds persist, the federal agents acting unconstitutionally should be arrested by local or state law enforcement. 
Of course, such action in Colorado would require not only a principled belief in the Constitution, it requires balls. Sadly, both are entirely lacking among state officials.

Rep. Cory Gardner (R-CO) threw his support behind a bill that will curb abusive medical lawsuits, lowering the cost of healthcare nationwide.

"This is a crucial step in replacing the President's healthcare law with common sense reforms that have been proven to work in multiple states such as Colorado, California and Texas," Gardner said.

H.R. 5, authored by Rep. Phil Gingrey (R-GA), places a limit on the non-economic damages that can be awarded in a medical liability lawsuit at $250,000 for states that do not have caps already. Currently, there are 28 states that cap medical liability damages, Colorado being one of them. This legislation will not override caps already in place.

Rep. Gardner is one of my favorite politicians in the state. However, my affection for him is overshadowed by my affection for the Tenth Amendment.

Which one of the enumerated powers in Article 1, Section 8 of the Constitution gives Congress authority to set malpractice award limits on states? No matter what one thinks of malpractice caps and tort reform, the issue is for the states, and not Congress, to decide.


To be blunt: H.R. 5 flagrantly contravenes the limitations the Constitution places upon Congress, and therefore violates both the Ninth and Tenth Amendments. H.R. 5 is purportedly an exercise of the Constitution’s Commerce Power. Yet as I shall explain, its subject-matter—civil actions in federal and state courts—is not within the Constitution’s meaning of “Commerce."
(See "Fedzilla Hungry Again: State Courts Threatened.")

It is hard to defend the Tenth Amendment when both Democrats and Republicans ignore it for their own political ends. I urge Rep. Gardner to reconsider his support of H.R. 5.

Tort reform is not a federal issue.

From a press release just now issued from Congressman Cory Gardner’s office:
Rep. Cory Gardner (R-CO) threw his support behind a bill that will curb abusive medical lawsuits, lowering the cost of healthcare nationwide.
“This is a crucial step in replacing the President’s healthcare law with common sense reforms that have been proven to work in multiple states such as Colorado, California and Texas,” Gardner said.
H.R. 5, authored by Rep. Phil Gingrey (R-GA), places a limit on the non-economic damages that can be awarded in a medical liability lawsuit at $250,000 for states that do not have caps already. Currently, there are 28 states that cap medical liability damages, Colorado being one of them. This legislation will not override caps already in place.
Rep. Gardner is one of my favorite politicians in the state. However, my affection for him is overshadowed by my affection for the Tenth Amendment.
Which one of the enumerated powers in Article 1, Section 8 of the Constitution gives Congress authority to set malpractice award limits on states? No matter what one thinks of malpractice caps and tort reform, the issue is for the states, and not Congress, to decide.
Conservative Constitutional scholar and Independence Institute Senior Scholar Rob Natelson agrees:

To be blunt: H.R. 5 flagrantly contravenes the limitations the Constitution places upon Congress, and therefore violates both the Ninth and Tenth Amendments. H.R. 5 is purportedly an exercise of the Constitution’s Commerce Power. Yet as I shall explain, its subject-matter—civil actions in federal and state courts—is not within the Constitution’s meaning of “Commerce.”

(SeeFedzilla Hungry Again: State Courts Threatened.”)

It is hard to defend the Tenth Amendment when both Democrats and Republicans ignore it for their own political ends. I urge Rep. Gardner to reconsider his support of H.R. 5.

Rep. Cory Gardner (R-CO) threw his support behind a bill that will curb abusive medical lawsuits, lowering the cost of healthcare nationwide.

"This is a crucial step in replacing the President's healthcare law with common sense reforms that have been proven to work in multiple states such as Colorado, California and Texas," Gardner said.

H.R. 5, authored by Rep. Phil Gingrey (R-GA), places a limit on the non-economic damages that can be awarded in a medical liability lawsuit at $250,000 for states that do not have caps already. Currently, there are 28 states that cap medical liability damages, Colorado being one of them. This legislation will not override caps already in place.

Rep. Gardner is one of my favorite politicians in the state. However, my affection for him is overshadowed by my affection for the Tenth Amendment.

Which one of the enumerated powers in Article 1, Section 8 of the Constitution gives Congress authority to set malpractice award limits on states? No matter what one thinks of malpractice caps and tort reform, the issue is for the states, and not Congress, to decide.


To be blunt: H.R. 5 flagrantly contravenes the limitations the Constitution places upon Congress, and therefore violates both the Ninth and Tenth Amendments. H.R. 5 is purportedly an exercise of the Constitution’s Commerce Power. Yet as I shall explain, its subject-matter—civil actions in federal and state courts—is not within the Constitution’s meaning of “Commerce."
(See "Fedzilla Hungry Again: State Courts Threatened.")

It is hard to defend the Tenth Amendment when both Democrats and Republicans ignore it for their own political ends. I urge Rep. Gardner to reconsider his support of H.R. 5.

Tort reform is not a federal issue.

From a press release just now issued from Congressman Cory Gardner’s office:
Rep. Cory Gardner (R-CO) threw his support behind a bill that will curb abusive medical lawsuits, lowering the cost of healthcare nationwide.
“This is a crucial step in replacing the President’s healthcare law with common sense reforms that have been proven to work in multiple states such as Colorado, California and Texas,” Gardner said.
H.R. 5, authored by Rep. Phil Gingrey (R-GA), places a limit on the non-economic damages that can be awarded in a medical liability lawsuit at $250,000 for states that do not have caps already. Currently, there are 28 states that cap medical liability damages, Colorado being one of them. This legislation will not override caps already in place.
Rep. Gardner is one of my favorite politicians in the state. However, my affection for him is overshadowed by my affection for the Tenth Amendment.
Which one of the enumerated powers in Article 1, Section 8 of the Constitution gives Congress authority to set malpractice award limits on states? No matter what one thinks of malpractice caps and tort reform, the issue is for the states, and not Congress, to decide.
Conservative Constitutional scholar and Independence Institute Senior Scholar Rob Natelson agrees:

To be blunt: H.R. 5 flagrantly contravenes the limitations the Constitution places upon Congress, and therefore violates both the Ninth and Tenth Amendments. H.R. 5 is purportedly an exercise of the Constitution’s Commerce Power. Yet as I shall explain, its subject-matter—civil actions in federal and state courts—is not within the Constitution’s meaning of “Commerce.”

(SeeFedzilla Hungry Again: State Courts Threatened.”)

It is hard to defend the Tenth Amendment when both Democrats and Republicans ignore it for their own political ends. I urge Rep. Gardner to reconsider his support of H.R. 5.