Annie
Diamond Member
- Nov 22, 2003
- 50,848
- 4,827
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at least at the political class level. It's what makes me move away from both parties-they do the same things in different ways to the people, for their own power/money gains:
Senate GOP Jobs Bill Contains a Landmine for Federalism - By Carrie Severino - Bench Memos - National Review Online
Senate GOP Jobs Bill Contains a Landmine for Federalism - By Carrie Severino - Bench Memos - National Review Online
Senate GOP Jobs Bill Contains a Landmine for Federalism
By Carrie Severino
Posted on October 18, 2011 10:57 AM
Douglas Holtz-Eakin offers three cheers for the Jobs Through Growth Act, the Senate Republican alternative to President Obamas jobs bill...
On the upside, the bill would repeal the Obama administrations two most aggressive assaults on the Constitution Obamacare and Dodd-Frank and require congressional approval by joint resolution of any federal rule that would cost the economy $100 million or more. ...
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 laws own justification for its constitutional authority should be chilling to anyone committed to limited federal power. The bills 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 couldnt 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.
As Georgetown law professor Randy Barnett explains here, in a piece criticizing Republicans for their fair-weather federalism, 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. Of course, there are contexts product liability, for example in which states can take actions that set standards for the entire country, turning federalism on its head. (See Michael Krausss brief summary here.)
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