A medical malpractice provision included the Senate GOP jobs bill has gained another conservative critic over constitutional concerns. In an interview with Think Progress, Sen. Mike Lee (R-UT) described federal efforts to limit state medical malpractice laws as “constitutionally problematic:”
LEE: Congress needs to be very careful when it enters into a uniquely state law area like tort. So tort reform needs to be undertaken very carefully insofar as it’s done at the federal level. There are some tort suits that proceed in federal court and, um, but if we venture much outside of that, particularly if we get into telling state courts how to interpret state law, that can be constitutionally problematic.
KEYES: [State tort reform] might not be justified as far as the enumerated powers go?
LEE: Correct, correct. . . . [tort reform] is something that can be addressed in some way at the federal level, but most of it needs to be done at the state level.
As Think Progress points out, this puts Sen. Lee in a unique situation:
Lee promised last March to filibuster any bill that does not have “a clear and obvious basis connected to one of the enumerated powers” of the Constitution. Lee clearly doesn’t think that the GOP tort reform plan has this clear and obvious basis, so he is obligated by his own word to filibuster the GOP’s “jobs” bill.
In addition to Sen. Lee, last week, Carrie Severino joined Georgetown constitutional law professor Randy E. Barnett, the American Bar Association, constitutional scholar Rob Natelson of the Independence Institute, and the National Conference of State Legislatures in citing states’ rights and federalism concerns for opposing similar legislation. Numerous consumer and patient safety groups have also written Congressional leadership to speak out against this legislation.