Tuesday, February 22, 2011

Gotta Love Consistency

This post is pretty much a short, but total, rip-off of a piece by a columnist for the Atlanta Journal-Constitution, Jay Bookman.

You may remember that a bunch of Republican dominated states are suing the Feds over Obamacare, arguing that it is unconstitutional.  One of their primary arguments is that the Constitution’s Commerce Clause doesn’t allow government to force people to buy health insurance, a strictly local matter.

But wait, it seems not all states are doing a good enough job on their own when it comes to malpractice lawsuits according to some Republicans.  They want a federal law that caps damages.  And remember that they have a rule among themselves that requires a bill to specify the part of the Constitution that authorizes the legislation.  Guess what provision they say allows the Feds to regulate malpractice damages, the horrid commerce clause.

I wasn’t aware there was a lot of interstate malpractice being committed.


Big Mark 243 said...

yup... gotta love it... oh wait, I thought you meant 'hypocrisy'... my bad...

The Curmudgeon said...

Consistency is the hobgoblin of little minds?

We sort of agree with each other here except that, if pressed, you would find that neither the compulsory purchase of health insurance nor federal malpractice caps violates the Commerce Clause while I would take the position that both do.

Or am I once again mistaken?

Dave said...

They are indeed hypocrites Mark.

As to the scope of the Commerce Clause, what it says, until recently, wasn't very important - the Court for decades has let Congress pass pretty much any law it wishes, under its ever-broadening interpretation.

Now it seems some judges want to reign in the feds. If we are going to retrench, it needs to be done wholesale, not piecemeal, though that isn't going to happen.

As to a specific response to your comment, the clause doesn't say what the Court has interpreted it to allow, except because the Court has allowed its expansion, it says what the Court has interpreted it to say, until further notice.