Heresy! Senate GOP Endorses Commerce Clause Authority Over Health Care Industry

October 19, 2011 11:33 am ET — Alan Pyke

After refusing to even debate President Obama's jobs bill, Senate Republicans offered a package of trickle-down tax cuts, dangerous deregulation, and counterproductive budget rules that one economist warned would cause another recession — and they have apparently created a big political problem in their own back yard.

The arch-conservative National Review says that the medical malpractice reform component of the so-called "Jobs Through Growth Act" is "a landmine for federalism" that endorses using the Commerce Clause to regulate health care, a central tenet of the Affordable Care Act.

Unfortunately, the bill would also enact S.197, "The Medical Care Access Protection Act." Among other things, S.197 sets a statute of limitations for claims, caps damages and creates standards for expert witnesses. These may sound like great ideas, but they are not within the constitutional powers granted to the federal government for the very same reasons Obamacare is not. 

The law's own justification for its constitutional authority should be chilling to anyone committed to limited federal power. The bill's findings state that health care and health insurance are industries that "affect interstate commerce," and conclude that Congress therefore has Commerce Clause power to regulate them - even when it involves an in-state transaction between a doctor and patient, governed by in-state medical malpractice laws. Is there any industry that couldn't be found to have an effect on interstate commerce? [...]

Like the proponents of this bill, I am no fan of frivolous lawsuits or the trial lawyers who use our civil justice system as a means of diverting wealth (usually into their own bank accounts). But if we sacrifice our commitment to the rule of law here, what standing do we have when the next iteration of Obamacare presents itself?

The bill is sponsored by Sens. James Inhofe (R-OK), David Vitter (R-LA), Richard Burr (R-NC), John Cornyn (R-TX) and Lamar Alexander (R-TN). Every one of those men voted to derail Democratic efforts at health care reform with a point of order that the bill was unconstitutional.

Yet strangely, this isn't the first time Cornyn has endorsed the thinking behind "Obamacare." Back in April, Cornyn defended the Republican scheme to replace Medicare with undervalued coupons on the grounds that "It's exactly like" the exchanges and subsidies in the Democratic legislation, as Talking Points Memo's Brian Beutler reported.

The fact remains that Republicans were for an individual mandate before they were against it. The tortured relationship between Republicans and the Commerce Clause seemed to turn a corner when Tea Party candidates started to win primaries. But this latest endorsement of congressional authority over the health care industry may change that.