Federal Tort Reform = Big Government Takeover?
Wednesday, February 17th, 2010
I write frequently about the conservative push for “tort reform.” The ability to sue for damages is critical to people suffering from mesothelioma cancer and other asbestos-related diseases, because so often people need money to care for themselves and their families. When tort laws are “reformed,” nearly always the reforms make it more burdensome for injured people to file suits and also place arbitrary limits on the amount of damages awarded.
For the past several years, industry groups like the American Tort Reform Association have been pushing tort reform in the states. At the same time, conservatives in Washington have been trying to pass tort reform law at the federal level as well. But some conservatives argue that such “reform” would amount to a big government takeover of state authority.
Robert Levy, a senior fellow in constitutional studies at the Cato Institute, wrote,
“Federalism is a system of dual sovereignty, of divided authority, with the states checking excessive power in the hands of the federal government and vice versa. Most particularly, federalism limits the federal role to those few and defined powers enumerated in the Constitution. Nowhere in that document — or in its ‘emanations and penumbras. — is there a federal power to set rules that control state lawsuits against doctors for malpractice.”
Michael Cannon, Cato’s director of health policy studies, wrote recently,
“For all their talk about limited government and the rule of law, conservatives and Republicans just can’t seem to stop advocating unconstitutional federal limits on med mal liability. Maybe they’ve convinced themselves that all doctors are angels and all trial lawyers are demons.”
A few years ago, Nina Owcharenko of the ultra-conservative Heritage Foundationagreed that tort is a state issue:
“Since the problems of medical malpractice are problems of state law, solutions must rest ultimately in changes in state law. The states remain the best laboratories for tort reform, particularly for medical malpractice claims that involve parties only from within a given state. Congress should strongly encourage states to reform their destructive medical malpractice system in ways that are consistent with the constitutional principle of federalism.”
Although there are exceptions, most personal injury suits are filed under state law, not federal law. As we argue among ourselves about reforming the nation’s floundering health care system, conservatives have argued that controlling costs requires reducing malpractice costs. This is an argument I have debunked here in many previous posts; see, for example, “Tort Reform Is a Red Herring.”
But even if you believe there’s a connection between personal injury litigation and health care costs, the costs that must be reduced are mostly coming out of state courthouses, not federal ones. Conservatives want to use the federal government to impose a single standard on state courts, and there is a strong argument to be made that this would be a violation of state sovereignty — in other words, a big government takeover.
— Barbara O’Brien
