Can the Republican Party still be the party of “small is better” government if it isn’t willing to stick to its guns when the policy is one of its favored issues? Such as, for example,  tort reform?

I hate it when I hear Republicans at the federal level attack Democrats on the size and scope of federal powers, especially when that Republican is:

A) not Ron Paul (and I’m not pulling for Paul for President; on the contrary); or

B) has been in office for longer than half a decade (there are some exceptions, but they are rare).

Other than that, few Congressional Republicans have much credibility on the scope of federal reach. I agree with cutting funding to ACORN and Planned Parenthood like any other Republican, but I don’t agree that Republicans are “without sin” in keeping the federal reach short when it comes to their own sacred cows. They often just have different sacred cows.

All too often it seems like Republicans are too willing to pick and choose when small government is appropriate. Federalism–that we are as states bound by contract (the constitution) with powers divided between the national and state governments–limits what the federal government can do. Most recently, and most popularly, Republicans have attacked the Affordable Healthcare for America Act (aka “Obamacare,” as cited last night by Anderson Cooper and the Act’s detractors) on grounds of being beyond the scope of the federal government’s powers. While the Commerce Clause allows a lot, it doesn’t allow a healthcare mandate, they say.

Along those same lines, would it allow a tort reform mandate? Senate Republicans are pushing back against Obama’s jobs bill with their own version, and while it’s probably DOA, that does change that it’s probably just as much a violation of the Republican mantra against unlimited federal power as Obamacare is.

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? The agriculture and manufacturing industries, long considered the paradigmatic areas not covered by the Commerce Clause, certainly fall under federal power under this broad analysis.

Randy Barnett, writing in the Washington Examiner, calls it “Fair weather” federalism, and he notes that it will violate Congressional Republicans’ “Pledge to America” that promises to only pass bills that meet constitutional muster. It is part of their “HEALTH” Act to regulate state medical malpractice rules.

The problem is that torts have been a state regulated arena for the duration of the republic. The HEALTH Act would place limits on malpractice awards. (Ironically, I can hear the Democratically strong trial attorneys lobby screaming in rage at this violation of federalism…)

But tort law — the body of rules by which persons seek damages for injuries to their person and property — has always been regulated by states, not the federal government. Tort law is at the heart of what is called the “police power” of states.

What constitutional authority did the supporters of the bill rely upon to justify interfering with state authority in this way? Not their own assessment of the Commerce Clause, which grants Congress the power “to regulate commerce . . . among the several states.”

The answer to that question is the New Deal era Substantial Effects doctrine, a “subcategory” of the Commerce Clause, created during the 1940s to account for the growth in government reach during the Great Depression. Primarily concerned with regulatory law, it emerged out of cases dealing with steel strikes and agricultural production (specifically, corn) when the Supreme Court decided that  products crossing state lines would have a sufficiently substantial effect on commerce that Congress could regulate them under the Commerce Clause.

With the exception of only a few conservative Justices, including Justice Clarence Thomas (a hobbit crossing Mordor?), the Supreme Court hasn’t looked back, and Congress has, for the most part, been left to regulate what it will. ”This test, if taken to its logical extreme,” Thomas wrote in 1995, “would give Congress a ‘police power’ over all aspects of American life. . . . [T]he power we have accorded Congress has swallowed Art. I, Section 8.”

Says Barnett

Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power.

This issue concerns constitutional principle, not policy: the fundamental principle that Congress has only limited and enumerated powers, and that Congress should stay within these limits.

Which leads me back to the beginning: how can we trust Republicans any more than Democrats when they pick and choose when they want the federal government to expand beyond its constitutionally limited reach?  To Barnett I give the last word:

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.

[National Review Online] [Washington Examiner][Volokh Conspiracy]

Related articles

• FINO Republicans: Federalists in Name Only (volokh.com)
• FAIL: Another Judge Finds ObamaCare Unconstitutional (pajamasmedia.com)
• Health Care Reform Gamble Headed to Supreme Court (themoderatevoice.com)
• The “Unlimited Power” Argument and the Commerce Clause (volokh.com)
• ObamaCare, the Mandate, and the Limits of Congressional Power Under the Commerce Clause (reason.com)