A group of over 100 Members of Congress—mostly Republicans who won their seats because Democrats were not honoring the Constitution—have signed onto a flagrantly-unconstitutional bill that amounts to a partial federal takeover of the state court system.

The measure is H.R. 5, and it has the kind of pretentious name increasingly slapped on bills of this type. In this case, it’s “the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011.”

In the name of “medical malpractice reform,” H.R. 5 imposes heavy-handed federal rules on virtually all state lawsuits in which a defendant is a health care provider, manufacturer, seller, distributor, marketer or promoter.  The rules cover allocation of liability, caps on damages, judicial supervision of awards, factors a jury may consider in calculating punitive damages—you name it.  I personally favor various kinds of state-level malpractice reform, but from a constitutional standpoint, this bill is ridiculous.  It is an attack on state courts and on the civil jury system itself.

As its principal constitutional justification, the bill notes that health care and civil justice “affect” commerce (as does practically everything, of course), but the bill actually is not targeted at commerce as the Constitution uses the term.  Hence, the measure clearly exceeds congressional power under the Constitution as the people understood it when they ratified it.  In fact, during the ratification debates the Constitution’s advocates specifically represented that such matters would be reserved exclusively to the states, and that was confirmed by the Ninth and Tenth Amendments.

But what is more remarkable is that H.R. 5 seems to exceeds even the current Supreme Court’s permissive standards of what Congress may do.

My letter explaining the constitutional issues in detail is posted here:HR5 letter

The fact that nearly all H.R. 5’s sponsors are Republicans shows that merely handing control of Congress to the other party does not ensure respect for the Constitution.  If Americans want to protect the Constitution, they will have to employ additional tactics, including strong pushback from the states and from the general public.