During a speech on November 11 at the national convention of the Federalist Society, Republican Senator Mike Lee of Utah discussed why he could not vote for the jobs bill proposed by Senate Republican leadership (he voted “present”), even though it included many economic growth proposals with which he agreed. The Senator made it clear that he would have trouble voting for any federal tort reform bill, because most such bills inherently override states’ rights. Here is a transcript of the pertinent section of that speech:
I had a situation just yesterday in which members of my party put forward a proposal consisting of a lot of bills rolled together. I agreed with almost all of them. Almost all of them achieved some favorable policy objective. But there was one with which I fundamentally disagreed; not because it was bad policy, but because it was utterly reconcilable with principles of federalism to which I took an oath. There was one portion of this Republican jobs package that would have told state courts, applying state law, reviewing state causes of action, that they were subject to certain limits, all in the name of interstate commerce; all because these things, like everything else, have a substantial effect on interstate commerce. I wanted to vote for the bill. Were I a member of the state legislature in the State of Utah, I would have voted for that kind of tort reform. But I couldn’t do it, because it’s not within my power. It was painful not to be able to vote in favor of that bill, but sometimes we have to do painful things, even when they undercut our underlying policy interests. In other words, just as textualism and originalism need to be protected and preserved, they need to be followed religiously so that they don’t come under fire, and correctly as I believe, as simple tools to bring about a conservative philosophical revolution of sorts, we in the political branches of government who are dyed-in-the-wool advocates of federalism need to stick to federalism. Federalism is the answer, not just because it leads to right results, but because it is the right result, and it is the law. (Emphasis mine.)
Senator Lee’s comments were met with applause by the audience, who obviously recognized and approved of his steadfast allegiance to constitutional principles.
During questioning by the audience, Senator Lee conceded that Congress could enact “some medical malpractice reforms” for federal suits brought in federal courts under federal law, or if such a bill is tied to “the provision of medical services with federal funds.” But the federal tort reform bills being pushed by the AMA and other medical groups are straightforward, head-on, bills to crush states’ and individual rights in health care-related lawsuits. Personally, I don’t foresee Republicans proposing a bill to limit Medicare or Medicaid recipients’ right to civil litigation, because of the political backlash it would generate.
Senator Lee’s courageous vote on that bill and his statement in his speech place him squarely among the many Republicans and Tea Party-side conservatives who have come to recognize the unconstitutionality of federal tort reform bills. That growing list includes Virginia Attorney General Ken Cuccinelli; constitutional law expert Rob Natelson of the Independence Institute; Professor Randy Barnett; Tea Party movement leaders Judson Phillips and Mark Meckler; and many others, including critics of the plaintiffs’ bar, all of whom insist on upholding the Constitution and Bill of Rights over political objectives. They’ve found, as Rob Natelson has detailed in his new study, that the Founding Fathers clearly and specifically did not want state tort law and state courts pre-empted or overruled by Congress through federal tort reform.
You can watch Senator Lee’s entire speech below; scroll to the 20-minute mark to hear him discuss this issue.