Federal Tort Reform Ideas Lost in Obamacare Decision

Tea Party Nation ^ | June 29, 2012 | Andrew Cochran

[tflabo]

In the Obamacare decision on Thursday, the five conservative Supreme Court Justices rejected the unlimited scope of the Commerce Clause and the Necessary & Proper Clause envisioned by proponents of federal tort reform bills (especially caps on damages in medical malpractice lawsuits).

[tflabo]

Seems the argument is that tort reform is a states right issue but its under the commerce clause and gone with the SCOTUS ruling. So now the Feds take over tort reform? I admit this topic seems confusing so you FReeps with law experience please comment too.

[Cowboy Bob]

You know, I have found a silver lining to all this mess - Justice Robert has shown himself to be a coward who can easily be intimidated by a sitting President.

Now what needs to be done is to elect a Republican who will intimidate Roberts into voting to uphold the constitution.

It is also important to elect a Republican President this November because Ginsburg will probably be the next Justice to retire. Having a Republican President could help to strengthen the conservative wing of the Supreme Court. (of course, the Conservative will need to hold Romney's feet to the fire to make sure he names a conservative justice). If we get a Republican majority in the Senate, there won't be a need for a stealth candidate...

[FredZarguna]

Well, first of all, Roberts' opinion on the Commerce Clause and the Necessary and Proper clause may not constitute anything other than dicta. It isn't clear that any future Court, nor any lower court is bound by those opinions, because it's not clear that those statements are the opinion of the majority (and therefore the opinion of the Court.)

If those opinions are merely Roberts' opinions, they might signal how he would himself rule in the future, although given the mental impairment pretty clearly indicated by his ruling, it's not obvious that he'll rule consistently on anything -- even his own opinions -- down the road.

As to your question: what is considered bad news here is actually good news, to the extent that dicta about the commerce power will be taken seriously.

Conservatives -- I use the term advisedly -- were hoping to bring about Tort reform against ALL of the State's at once by appealing to the Commerce Clause. That would now appear (maybe, maybe) to be out the window. So now (maybe maybe) Congress cannot pass a Federal law to reform the individual States tort problems all at once. Personally, although tort reform is "good," this was a bad idea: if you believe in Federalism, you can't allow Congress to meddle in the judicial systems of the States.

Bottom line, we now must do tort reform the right way: Pass model reform in the States where you can get it done, and then let the rest of the country watch as those States prosper and the others continue to shrivel. If the other States won't change, move your business to a State where you're protected from the plaintiff's bar.

[cymbeline]

“Bottom line, we now must do tort reform the right way: Pass model reform in the States where you can get it done, and then let the rest of the country watch as those States prosper and the others continue to shrivel. If the other States won’t change, move your business to a State where you’re protected from the plaintiff’s bar.”

I like that! Well put. It’s the right way to do a lot of things.

[JohnBovenmyer]

Now what needs to be done is to elect a Republican who will intimidate Roberts into voting to uphold the constitution.

Alas, we're a couple steps short of being able to accomplish that in November. Hard to see Mitt as intimidating, but intimidated, maybe. We need someone to intimidate Mitt in the right direction. I don't think we can get an intimidating conservative Senate in November, but if we push hard enough (Ted Cruz, etc.) we can have sufficient conservatives and intimidate enough remaining RINOs to get things done there. It's the House that must become intimidating in November. Conservatives/Tea partiers need to win it big and throw out its weepy leadership. If we're really lucky House leadership turnover will spill over into the Senate with someone from DeMint's camp in charge. If we win Congress big enough in the fall Mitt and the Court will notice. The Watergate class of Congress has driven it for a generation. We need an Obama class to do the same.