Leading Conservative Legal Scholar Comes Out Against H.R. 5

The growing list of advocates against misguided tort reform legislation added another voice this week as a well-known conservative constitutional scholar came out against the HEALTH Act, known as H.R. 5. In an opinion editorial in the Washington Examiner, Georgetown legal professor Randy Barnett explained how the new law, which would have huge effects on all Illinois medical malpractice lawsuits, would violate a House Republicans pledge to “require every bill to cite its specific Constitutional Authority.”

He explains how tort law-under which all medical malpractice lawsuits fall-have always been regulated by the states pursuant to their “police powers.” H.R. 5 would change all that, forcing the federal government into the tort reform regulation business while superseding the choices of individual states. So-called conservative lawmakers introduced the bill. But those legislators are relying on Constitutional interpretations that they have often rejected as the basis for Congress’s power to pass the legislation.

The professor writes that if Congress is allowed to pass measures like H.R. 5 than there is likely no limit to what the body can do-a rejection of the core principles declared by so many of the bill’s proponents. He explains that before you even get to debates about the merits of the policy, all lawmakers must ensure that they do not compromise their constitutional principles. The “fair weather federalism” at play in bills like H.R. 5 need to be exposed for their inconsistency. Voters must ensure that their legislators are held accountable for how well their words match their actions.

Our Chicago medical malpractice lawyers will continue to rail against this terribly misguided bill. Not only does it represent a completely unnecessary infringement on the rights of injured victims, but it brings out the hypocritical worst of those who claim to care about the separation of powers in our national system.

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