October 28, 2011

With Senate Bill 197 — legislation that would have the federal government dictate how state judges are to try medical malpractice cases and cap what state courts may award — several Republican senators have reminded us that federal impositions on states that run contrary to the U.S. Constitution and to the spirit of federalism have never been the sole prerogative of just Democrats.

As a state attorney general struggling to hold back a flood of impositions by the Obama administration that violate federal law, the Constitution or both, it is disappointing to see so many Republicans making the same types of mistakes that President Obama and his allies have made.

Many attorneys general are struggling to convince Washington of the importance of limiting federal power. While there is a long history of both Democrats and Republicans expanding the federal government and its power, I hold out hope that Republicans have learned from their many errors from 2001 to 2007, when they held majorities in the House and Senate under President George W. Bush. This particular legislation suggests, however, that there is still much for them to learn.

Like most of my fellow Virginians and, I presume, most Americans, I am concerned that our legal system encourages more lawsuits than are appropriate. I understand that this imposes costs across our society, including higher medical costs. And like my fellow Virginians, I want federal and state laws changed to allow the free markets to put downward pressure on health-care costs, rather than allowing the upward pressure that comes with excessive lawsuits.

The five senators in question obviously support tort reform, and they are willing to smother states to impose their policy preference. It is frustrating how “broadly” some senators interpret the powers of the federal government when they are pursuing a favored policy, and how “limited” those same powers are seen to be when it is the other guy’s proposal violating the Constitution.

Senate Bill 197 takes an approach that implies “Washington knows best” while trampling states’ authority and the 10th Amendment. The legislation is breathtakingly broad in its assumptions about federal power, particularly the same power to regulate commerce that lies at the heart of all the lawsuits (including Virginia’s) against the individual mandate of the 2010 federal health-care law. I have little doubt that the senators who brought us S. 197 oppose the use of the commerce clause to compel individuals to buy health insurance. Yet they have no qualms about dictating to state court judges how they are to conduct trials in state lawsuits. How does this sort of constitutional disconnect happen?

An example of one policy question the legislation would take from states is whether to cap medical malpractice awards. Virginia is among those states that utilize caps; others do not. But it is the right of the residents of each state to decide which system works best for them, rather than having a one-size-fits-all plan imposed unconstitutionally by the federal government.

If Congress really wants to help the health-care system, lawmakers could stop their incessant attempts to dictate every aspect of the system. Why is it that folks in Washington always think that more rules from Washington will make things better? Experience has shown that approach almost never works.

I believe that Republicans need to be the guardians of limited government, federalism and the Constitution, not just because it is the right thing to do but also because if they do not play that role, no one else will. This legislation expands federal power, tramples the states and violates the Constitution. And if it were ever signed into law — by a Republican or Democratic president — I would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law in March 2010 (15 minutes later).

When there are not enough people in Washington willing or able to keep the federal government within the boundaries of the Constitution and the law, state attorneys general must step in. They must take on the role of protecting the Constitution from an overreaching federal government that threatens the very liberty that has been so critical to American exceptionalism. As an attorney general, my oath of office demands no less.

The writer, a Republican, is attorney general of Virginia.