The 7th Amendment Advocate

"That's beyond my pay grade. That's the speaker. They're the ones doing that coordination."

That's how Rep. Joe Pitts, chairman of a powerful health subcommittee in the U.S. House, described how the House GOP majority is designing its future health care policy.

A small cabal of House GOP Members and leadership staff has recently taken the reins of policy formation away from the rest of the House GOP and the conservative base of the party, and is forcing the Members to accept it, whether it's constitutional or not. And it's not. They're copying what Nancy Pelosi did that drove the GOP nuts when Democrats ran the House.

For almost a year, the House GOP paid attention to constitutional principles and avoided crossing the line by not voting on the House floor for H.R. 5. After all, its finest legal experts wrote time and again that federally imposed limits on medical malpractice lawsuits, especially those imposed in H.R. 5, are an unconstitutional abridgement of states' and unconstitutional rights. And many GOP Congressmen listened.

The lineup against H.R. 5 is full of GOP legal superstars: Anti-Obamacare superstar Professor Randy Barnett, Virginia Attorney General Ken Cuccinelli, Federalist Society superstar Professor John Baker, Rob Natelson of the Tenth Amendment Center, Carrie Severing of the Judicial Crisis Network, Hans von Spakovsky of the Heritage Foundation, Professor Ilya Somin of George Mason Law School, and more. Even Ted Frank and Walter Olson, who sharply criticize the plaintiffs' bar, warned the House GOP that H.R. 5 is a bridge too far.

And important conservative political figures and groups joined them in condemning federal interference in state civil justice systems: Sens. Tom Coburn and Mike Lee, the Tea Party Patriots group, Judson Phillips of Tea Party Nation, the National Conference of State Legislators, the Cato Institute, and Reps. Ted Poe, Louie Gohmert, Lee Terry, Morgan Griffith, and many others.

Then, two months ago, House Speaker Boehner and his close lieutenants put the Tea Party in the rear-view mirror. They intentionally moved away from principles of limited government in the name of "practical politics," in order to gain more support from business interests. The new agenda included a cyber-security bill that raises privacy concerns; the reauthorization of the Export-Import Bank (which really angered conservative leaders); and a heavy push for H.R. 5.

The Beltway Cabal has since made it almost impossible for principled GOP Congressmen to vote for the Constitution and against H.R. 5. First, they announced after the House left town that H.R. 5 would be combined with a very attractive bill to repeal the Obamacare "death panels." Then they fixed the rules so hesitant Members had no opportunity to strip unconstitutional federal medmal limits from that combined bill. When that passed, they shoved H.R. 5 into a budget bill, again with no opportunity for conservatives to vote against it on the House floor.

Both times, GOP Members complained to Speaker Boehner's office that they were being forced to compromise constitutional principles - the very basis of their opposition to Obamacare - to support special interest legislation for the very groups that backed the enactment of Obamacare. Both times, the Speaker and his Beltway Cabal shut that opposition down with no floor debate or vote.

Multiple GOP Congressmen voted with the Constitution the first time, even though it meant not voting against Obamacare. I've been told by individual Members and key staff of "heated" conversations beetween Tea Party-side Republicans and leadership staff, but the Beltway Cabal doesn't care. Dissenting Republicans are afraid of losing committee seats and campaign dollars - just what Democrats who disagreed with Pelosi faced.

The Beltway Cabal consists of no more than a dozen GOP House Members. The Speaker and the other three top Republicans in the GOP Conference; the chairman of the Rules Commitee, which sets the terms of debate for bills in the House; two committee and subcommittee chairmen; and two powerful Congressmen who were doctors and are committed to medmal limits at all costs are running the show. It's "the Pelosi Rules," GOP style.

The message to Tea Party backers and average Americans is that when push comes to shove, the Constitution takes a backseat to Crony Capitalism.

Two things, actually.

First, none of the three are proper subjects for the federal government under the Constitution. Neither domestic relations law governing marriage, nor health care, nor tort law are matters enumerated for the federal government.

Powerful groups on the liberal or conservative side ignore the limits of the Constitution in order to change that in each case. Gay marriage advocates want the federal judiciary or Congress to override state marriage laws.

President Obama and Democrats forced the individual insurance mandate down our throats with the assistance of the AMA and health care-related associations, and those same health care associations have enlisted Congressional Republican leaders in an effort to override state tort law by effectively immunizing them from medical malpractice lawsuits.

In each case, the advocates ignore centuries of established common law precedent and the clear writings of the Founding Fathers. Congressional Republican leaders oppose gay marriage and Obamacare, but their own hypocritical campaign for federal limits on medmal lawsuits invites Democrats and gay marriage advocates to do so for their causes.

The second similarity is that truly principled constitutional conservatives and Tea Party-side legal experts recognize that Uncle Sam has no business overriding states' rights in any of these cases.

Ken Cuccinelli, Attorney General of Virginia, gave an interview last August in which he stressed the importance of maintaining a consistent defense of the state' authority over marriage. "The Supreme Court ruled that marriage is not a subject that the federal government can exercise jurisdiction over," he said. "Including the courts."

"Frankly, I think it is worth some consideration for the things that aren't reached by the federal constitution to just leave it to each state... As between the two options, I certainly prefer the states deciding these constitutional questions and I don't mean just the one you raised. I mean all the ones that fall in that gray area of whether or not the federal government can do it. If it is a gray area, the federal government shouldn't be able to do it."

Cuccinelli became nationally known for his lawsuit against Obamacare, and he took a forceful stand against federal tort reform last fall in an opinion piece and during the Republican Presidential debates.

I'm thankful that my state's Attorney General understands the proper role for federal power and won't hesitate to defend our rights in court.

Other Republicans have compromised their self-proclaimed "Constitutional conservative" status by pushing to federalize tort law and calling for a constitutional amendment banning gay marriage, even though most states have already done so through election referenda.

Rep. Michele Bachmann exposed her hypocrisy over states' rights, simultaneously slamming Obamacare while pushing federal medmal limits.

Cuccinelli nailed her on it during a debate, but Rep. Bachmann remains an undaunted flip-flopper on states' rights.

Rick Perry, Rick Santorum, and Rep. Bachmann failed to grasp their own inconsistencies on these issues during the campaign, while Ron Paul remained a true constitutional conservative on all three issues.

A constitutional amendment to define marriage isn't necessary unless the federal judiciary overrsteps the limits of its authority and crushes states' authority over marriage law.

Overstepping constitutional limits brings political consequences. Voters no longer trust Democrats who insist that they can force us to buy a commercial product such as private health insurance, and we want the Supreme Court to declare the mandate unconstitutional.

But Americans also won't easily trust Republicans who proclaim their allegiance to the Constitution and the Bill of Rights, then sell out to business interests in the heat of political campaigns by pushing for tort reform.

Gay marriage advocates who try to shove their interpretation of the Constitution down our throats also face a real backlash from a public sick of excessive federal power in areas reserved for local control.

I wrote almost two years ago that the right to a civil jury trial, protected in the Seventh Amendment, is the most ignored, unknown and endangered constitutional right in any of the amendments in the Bill of Rights. Not that I needed proof, but I saw it again over the weekend. The "Jeopardy" game show episode broadcast in the Washington, DC, area on Saturday, May 12, included a column of five questions titled, "Know Your Rights." If the results are a valid sample of the public's knowledge of the Bill of Rights, we are either doomed or at least in big trouble. Only two of the five questions were correctly answered, with three questions incorrectly answered. The Seventh Amendment was one of the subjects of an incorrectly answered question; the contestant said that threshold for a civil jury trial was $10, when it's $20. The 60% failure rate would have been a "F" in any classroom. In contrast, the contestants correctly answered four of the five questions about famous princesses and all five questions about an exercise workout.

You'd think that at a time when we hear concepts such as religious liberty, gun rights, free speech, and Tea Party, each with a basis in constitutional history, thrown all over the mass media that the public would have a better idea of their origin.

The episode was originally broadcast on November 25, 2010, and you can see all of the questions on this website. Take the quiz yourself and see if you can correctly answer the the four other questions on constitutional rights (scroll the mouse over the dollar amount in the box for the correct answer).

A hyper-Political Correctness movement is running rampant on our public universities, with taxpayer-funded university bureaucrats and teachers trying to crush the First Amendment rights of students to openly express their faith and conservative political views. Students are reaching out to the top nonprofit pro-religious liberty litigators in America and exercise their God-given right to ask their neighbors and an independent judiciary to stop the universities.

For example, Vanderbilt University suddenly changed its student group recognition policy to demand that faith-based student groups remove any reference to their faith in the selection of group leaders. That's as stupid as telling the football coach to not time high school football recruits in the 40-yard dash before offering them a scholarship. Officials sent an e-mail to one recognized Christian student group, stating that the group's application to keep its recognition was deficient because the group's constitution requires officers to demonstrate a "personal commitment to Jesus Christ." The university demanded that the group eliminate that criterion.

What's wrong with these idiots? Whose business is it of theirs if a Christian, Jewish, or Muslim-based group insists that its officers actually believe in the tenets of the faith upon which that group is based? What do they expect, a Muslim group pick a Christian as the group president? And who made the university God anyway?

This story isn't unusual - universities across America are changing student group recognition policies, or imposing "Codes of Conduct," and purposefully discriminating against and punishing faith-based groups, especially Christian groups.

Time to go to court! The Founding Fathers experienced this type of heavy-handed discrimination against their faith at the hands of civil authorities, so they enabled us to sue the daylights out of anyone who steps on our First Amendment rights. The student groups are turning to the Christian Legal Society, the Alliance Defense Fund, and American Center for Law and Justice, and other faith-based litigation and religious liberty groups. These great organizations know that the civil justice system designed in the Constitution, and the God-given right to a civil jury trial protected in the 7th Amendment, are the protection and accountability system for all other rights enumerated in the Bill of Rights. The Founders used words such as "sacred" and "inviolable" to describe the 7th Amendment in state constitutions and declarations of rights.

And NO Founder wrote at ANY time of limiting or "tort reforming" any Americans right to take a grievance to court, whether the case was about religious liberty, free speech, or the loss of property or personal injury. Neither did the Founders differentiate between personal liberty and property or injury causes of action in their promotion of the civil suit in our Founding Documents.

That's why I don't understand the insistence by too many Republicans, and a few Democrats, that legislated federal limits on medical malpractice lawsuits is allowable under the Constitution and Bill of Rights. No complete, unbiased and accurate reading of the Founders' writings could come to that conclusion.

P.S. As I write, the Tennessee Governor has not committed to signing a bill that would protect the individual freedom of the Vanderbilt University students. Vetoing that bill would make a court case against Vanderbilt inevitable.

It's an article of faith among those who propose federal limits on awards in medical malpractice lawsuits. They always proclaim that the Texas state law limiting such awards resulted in thousands of doctors moving to the state. Examples:

"This last year, 21,000 more physicians practicing medicine in Texas because they know they can do what they love and not be sued." Texas Gov. Rick Perry, August 17, 2011.

"That's why some states, including my home state of Texas, have enacted tort reform to limit the amount of damages that can be awarded for pain and suffering. The result? More than 14,000 doctors have returned to Texas or set up new practices in the state." Rep. Lamar Smith, chairman of the House Judiciary Committee, March 8, 2010.

"Because Texas adopted comprehensive reform in 2003, it now has more obstetricians and emergency physicians and lower medical liability premiums." Rep. Fred Upton, chairman of the House Energy & Commerce Committee, in statement on May 10, 2011.

BUT a new study crushes that claim and endangers one of the key pieces of empirical proof cited over and over again by proponents of unconstitutional federal medical malpractice limits and broader tort reform bills. The study, "Does Tort Reform Affect Physician Supply? Evidence from Texas," concludes that, "After tort reform was enacted, proponents claimed there had been a dramatic increase in physicians moving to Texas due to the improved liability climate. We find no evidence to support either claim. Physician supply was not measurably stunted prior to reform, and did not measurably improve after reform. This is true whether one looks at all patient care physicians in Texas or at high-malpractice-risk specialties."

The authors continue: "There is no evidence that the number of physicians per capita practicing in Texas is larger than it would have been without tort reform. Any effect of tort reform is too small for us to measure, against the background of other, larger forces affecting physician supply, both in Texas and nationally."

The study is so powerful in its presentation of data that Ted Frank, longtime critic of the plaintiffs' bar, concluded that, "I, for one, am going to stop claiming that Texas tort reform increased doctor supply without better data demonstrating that. More study is needed to explain Black/Hyman/Silver's counterintuitive result, and partisans on both sides need to be more conservative with their policy claims." Good enough for me.

This is an enormous break in the tort reform paradigm. It's as important on the empirical side as the legal statements against federal tort reform by libertarians and conservatives such as Randy Barnett, Sens. Tom Coburn and Mike Lee, Rob Natelson, and Tea Party leaders such as Judson Phillips. Just getting to "no clear evidence in the data" strips Big Medicine and its allies of an important rhetorical device in their pursuit of unconstitutional special interest legislation. Now, not only can they not cite any current conservative scholar in favor of H.R. 5, they can't honestly use the "More Docs in Texas" claim.

Judson Phillips, founder of Tea Party Nation, has once again come to the defense of the 7th Amendment protection given to the right to a civil jury trial in a post on TPN, as follows:

Some conservatives and far too many Republicans treat the Constitution as if it is some great big Chinese buffet. 'I'll have a little of the 1st Amendment. A lot of the 2nd . None of the 7th.'

That is not how the Constitution works. Our founding fathers designed it the way they did for a reason.

Many Republicans and some conservatives are quick to jump on the tort reform bandwagon. 'We hate lawyers and trial lawyers are big Democrat supporters.'

That still does not change the Constitution and what it says.

Some Republicans throw out the expression frivolous lawsuits out like a boogeyman. As with all rants, those who throw it out simple expect their position to be accepted without discussion.

Are there frivolous lawsuits?

To quote Sarah Palin, 'you betcha.'

How many frivolous lawsuits do attorneys file? Very few.

Presenting the actual writings of the Constitution and Bill of Rights and defending them in the face of political inconsistency and hypocrisy is nothing new for Mr. Phillips. While his strident defense of limited government and deep cuts in federal spending have been part of Republican campaigns for the past two years, his criticism of federal tort reform as unconstitutional has been quoted most often by Democrats in the House as a way to remind House Republicans of their self-professed allegience to the 10th Amendment. A few weeks ago, I witnessed Rep. Maxine Waters, who is not exactly enamored with Tea Party activists, quote Judson during the Judiciary Committee's consideration of federal medmal limits, while he was actually in the audience. Quite a sight indeed.

Judson Phillips represents the best of the Tea Party, willing to tell the truth even when it's not conventional wisdom. We need more Americans of all political persuasions to recognize and fight for the right that our founders called "sacred" and "inviolable."

I'm happy to see fellow Catholics wade into the public policy arena and inject our Church's teachings on moral responsibility and social justice into the debate on legislation. I haven't done so explicitly here, but my faith underlies much of what I write on the need to protect the right to a civil jury trial for religious liberty and pro-life lawsuits.

So when Rep. Paul Ryan said in an interview that the Catholic principle of subsidiarity underlies some of his proposals in the FY 2013 federal budget, I respected his attempt as a sincerely personal application of our common faith. Obviously, other Catholics, including the U.S. Conference of Catholic Bishops, disagree with him on the application of that principle, but I'm glad we're having the discussion on that plane.

But if Rep. Ryan seriously believes, as he said in the interview, that subsidiarity "is really federalism, meaning government closest to the people governs best," then he must apply it consistently. And that requires that he remove any current reference to federal limits on medical malpractice lawsuits, including caps on noneconomic damages, from his budget proposals. Rep. Ryan's favorite legal experts on federalism have been writing for over a year that federal limits on civil suits are as unconstitutional an infringement on states' and individual rights as the individual mandate in Obamacare. If, as one conservative commentator says, "A humane government is one that leaves decisions closest to the people," then surely the regulation of state courtrooms is not a matter for Congress to decide. The budget proposed by the conservative House Republican Study Committee doesn't include any federal limits on civil jury trials - I guess that makes it "more Catholic."

And please don't interpret this piece as an implicit acceptance of state-imposed limits on the right to a civil jury trial. I don't believe that the Founding Fathers meant for a right that they called "sacred" and "inviolable" to be limited to civil suits filed in federal courts, while enabling state legislatures to close courtroom doors anytime they see fit. But that's a subject for a different post.

But if Rep. Ryan wants to reflect Catholic social teachings in his proposed budget, then he needs to do so without infringing on that "sacred" and "inviolable" right at the federal level.

It's Federal Reform Quiz Time! House Republicans are pushing H.R. 5, the bill to impose federal limits on awards in medical malpractice lawsuits, despite universal opposition from conservative legal experts, Tea Party leaders, and conservative Congressmen and Senators. Let's see how closely you've been following the debates on this bill on the House floor and in committees.

1. Which Congressman introduced the opposition of Tea Party Nation founder Judson Phillips to H.R. 5 on the House floor?
A. John Boehner (Republican)
B. Eric Cantor (Republican)
C. David Dreier (Republican)
D. Maxine Waters (Democrat)

2. Which Congressman introduced Ronald Reagan's quote that tort law belongs to the states into the record on the House floor?
A. Phil Gingrey (Republican)
B. Dan Lungren (Republican)
C. Joe Pitts (Republican)
D. Sheila Jackson Lee (Democrat)

3. Which Congressman introduced the opposition to H.R. 5 of the Heritage Foundation, Randy Barnett, Rob Natelson, Ken Cuccinelli, Sens. Tom Coburn and Mike Lee, and other hardcore conservatives into the record?
A. Michelle Bachmann (Republican)
B. Fred Upton (Republican)
C. Bob Goodlatte (Republican)
D. John Conyers (Democrat)

4. Which Congressman introduced, on the House floor, the references in the Declaration of Independence and Seventh Amendment to the Constitution to protect the right to a civil jury trial?
A. Lamar Smith (Republican)
B. Steve Chabot (Republican)
C. Chuck Fleischmann (Republican)
D. Bruce Braley (Democrat)

5. In 65 printed pages recording 8 hours of debate on the floor, and in 4 hours of debate in two committees, which Founding Father and current constitutional scholar did the proponents of H.R. 5 cite or quote most often?
A. James Madison and Ted Frank
B. Thomas Jefferson and Walter Olson
C. John Adams and Hans Von Spakovsky
D. None at any time

"D" is the answer for all five questions. The positions of the conservative legal theorists and politicians named in questions 1 through 3, and references in Founding Documents to the right to a civil jury trial, were introduced entirely by Democrats.

The proponents of H.R. 5 have not referred to ANY Founding Father or current constitutional scholar throughout any of the debates on that bill. Each of the Founding Fathers named in question 5 explicitly protected that right, and each of the scholars named in that question opposed H.R. 5.

There was no constitutional authority, support or basis for the bill when it was passed by the House. No cite in the bill to the Constitution; no quote of any Founding Father; NOTHING.

There are no winners in this quiz. When the Constitution is ignored, all of us lose.

This week, House GOP leaders and two committee chairmen are forcing their Members to vote for a federal tort reform bill that their own favorite legal experts and many Republicans in Congress have said is unconstitutional. The leaders and the chairmen of the House Judiciary and the Energy & Commerce committees are forcing votes for H.R. 5, the bill to impose federal limits on awards in medical malpractice lawsuits, as a way to offset potential budget cuts of billions of dollars in spending over the next ten years. Eventually we'll see H.R. 5 on the House floor again, for the second time in two months, with House Republicans who oppose it on constitutional grounds forced to vote for it under arm-twisting by leadership.

Proponents of H.R. 5 cite an estimate by the Congressional Budget Office that enacting H.R. 5 will save somewhere between $40 and 60 billion dollars, depending on the version. I've written before about the CBO's many failures at ten-year budgeting and on its flawed methodology for calculating savings from H.R. 5. Recently, CBO admitted that its estimate of the costs of implementing Obama are was wrong by a whopping 100%. Republicans know this and cite the CBO's failures in Obamacare, yet are using its H.R. 5 estimate as a basis for pushing the bill in a budget exercise.

This exercise doesn't write an actual law and won't be even considered by the Senate. It won't save a dime in federal spending. And you won't see House Republican leaders use the alternative health care budget proposed by the Republican Study Committee, the group of over 100 conservative House Republicans, which doesn't include any tort reform. Neither will they offer Rep. Paul Broun's "OPTION Act," which is endorsed by the conservative FreedomWorks group in part because it doesn't have a "federalism problem" (their words).

All this is just a lust for cash. It's solely an exercise in bashing trial lawyers to fill a budget hole and to attract campaign contributions from "Big Medicine." Constitutional rights and the expert opinions of the Randy Barnetts of the world don't matter to the GOP Establishment forcing Members into the vote by not offering real health care reform. The so-called savings will be used to prevent real cuts in wasteful programs.

The final question is whether Tea Party activists, whom the leaders need to keep their positions, will see through this charade and withhold their help this November in enough races to at least send a signal. That awareness should be our next step.

Columnist Timothy Carney of the Washington Examiner, who has a strong following among conservatives, has followed the "K Street Republicans vs. Tea Party" for several years and wrote again about the conflict last week. And Carney identifies some of the practical points of conflict between the two groups: "The GOP establishment rallies industry donors behind the Republican seen as stronger in November. A deeper reason: The revolving-door clique of K Street and Capitol Hill operatives needs Republicans elected to upper chamber who are likely to play ball."

That's all true, but it's not complete. Industry-side Republicans just see the world differently than people like me and Tea Party allies, such as Judson Phillips or Jenny Beth Martin, who lead and populate the grassroots Tea Party groups, or Rob Natelson and Randy Barnett, who write about the constitutional bases for rolling back Obamacare and limiting the size of the federal government. The pro-Wall Street or U.S. Chamber types, such as the Koch brothers' groups and lobbyists, don't really see the imperative to radically reduce the size and scope of the mechanisms created over the past 50 years to regulate the everyday activities of the American people. They would be perfectly satisfied if the EPA, CPSC, and FDA were forever oriented to be pro-business. They don't care about the historical or constitutional arguments by the Founding Fathers for the right to a civil jury trial. That side of the Republican Party "talks the talk" of limited government but actually fights for federal pre-emption of state laws and courtrooms in almost every aspect of commerce, from products liability law to medical malpractice lawsuits to financial services regulation. That's the difference I see. I'm as pro-business as any of the Kochs towards taxes (too high), overt federal regulation that kills job creation (too much), Obamacare (the worst) and so on. We just fundamentally see the role of the civil jury trial and state courtrooms very differently. The Seventh and Tenth Amendments never enter into their discussions. That's why they argue for H.R. 5, a federal medical malpractice bill, with no citation to any recent constitutional scholarship, while I can point to the writings of numerous respected scholars and like-minded Republicans who know that bill is unconstitutional.

And not all politicians or groups who proclaim themselves as "Tea Party" are really Tea Partiers. The Club for Growth, one such "Tea Party group" named in the Carney article, has asked prospective candidates for their views on federal tort reform and, I assume is for that concept, regardless of its unconstitutionality. Numerous Republican politicians who pass themselves off as "Tea Partiers" or "constitutional conservatives," starting with many Congressional Republican leaders, are pro-federal tort reform in order to bash trial lawyers and collect campaign contributions from business. It's an old habit that dies hard.

Fortunately a growing number of Republican politicians, at all levels of government, are recognizing the reality that federal power isn't unlimited and all ten amendments in the Bill of Rights are worth protecting in law. I've personally seen a number of Republican politicians take a step back from the tort reform agenda and re-evaluate their position upon reading statements by experts they admire, such as Randy Barnett or Sens. Coburn and Lee. The mission for those of us seeking constitutional consistency inside the Republican Party is to persevere, support and convert those open to rational discussion, and recruit candidates to support limited government and constitutional rights before they become committed otherwise. And we have to differentiate between the phony and the real constitutional conservatives.

In a special memorandum issued to House Republicans this week, the four senior House Republicans (Reps. Boehner, Cantor, McCarthy and Hensarling) laid out their plan for implementing a ten-year federal budget under Rep. Paul Ryan's plan and that would avoid cuts in national security and certain domestic programs. In so doing, they thoroughly trashed the concept of state sovereignty over their own judicial systems, and ignored real budget reforms that save far, far more than would their beloved federal medmal limits bill, H.R. 5, the bizarrely named "HEALTH Act." Anyone with a true allegiance to the Constitution and Bill of Rights should see this plan as a death knell of states' rights, delivered by House Republican leadership as a diktat to the Congressmen.

The last section of the memo is titled, "Reforming the Medical Liability System," and it begins by condemning state supreme courts: "Many state supreme courts have judicially nullified reasonable litigation management provisions enacted by state legislatures... " So the leaders apparently don't have much respect for the state judges selected or elected under the state constitutions. But state legislators don't get any respect either, with the leaders stating later in that section, "Further, abusive state tort laws drive what is known as 'defensive medicine,'..." Well, those state tort laws don't just drop out of the sky; they're enacted by the elected representatives of the people under state constitutions.

So, in a little more than a page, the House GOP leaders tell the 50 states and the people who elect the state legislators that they're all idiots unworthy of governing themselves. It's the arrogant, Washington-know-it-all attitude on open display, exactly what the House Republicans were elected to replace under the Capitol dome.

And in between those two quotes is another one, the Big Lie about H.R. 5: "The HEALTH Act also does not preempt any state law that otherwise caps damages." EVERY constitutional scholar who has studied and written on the bill, from Randy Barnett and Rob Natelson and the Heritage Foundation to Ted Frank and Walter Olson, has concluded otherwise. In almost 8 hours of debate on the House floor, and several more this week in the House Judiciary Committee, proponents of H.R. 5 haven't been able to point to ONE, just ONE current scholar who believes that H.R. 5 protects or respects state laws.

The leaders' utter disregard for the Constitution, buttressed with their extraordinarily hypocritical stand against Obamacare on constitutional grounds, is the reason why a small but increasing number of House Republicans are vocally rebelling against the leaders' insistence on H.R. 5. They know that federal tort reform is as violative of states' and individual rights as Obamacare, as both are based on the overly broad, Wickard v. Filburn interpretation of the Commerce Clause and the Necessary and Proper Clause.

These Members also realize that the pittance supposedly saved by H.R. 5, now estimated at $41 billion over ten years (under 1% of the total budget for that period), is dwarfed by Rep. Ryan's own proposal to change Medicare and Medicaid, where the real health care dollars are spent. He estimates his plan would save hundreds of billions of dollars. Whether you agree with that proposal or not, it's an option defended by the senior House Republican on the federal budget.

But House GOP leaders won't propose or defend that plan. Instead, it's full speed ahead on the road to federal control of state courtrooms.

Mitt Romney will be the Republican nominee for President, but he can't stop the "Washington GOP" from putting him in an untenable position on various issues. For instance, Republicans in both houses have introduced bills which would protect all oil companies, domestic and foreign, from any liability for deadly accidents from the rig to final distribution. The sponsors of the bills (the Senate's "Domestic Fuels Act," S. 2264, and the House companion bill, the "Domestic Fuels Protection Act," H.R. 4345) want us to believe - they guarantee - that the bills would not discharge Big Oil, including Big Foreign Oil, from deaths and injuries due to negligence. But the language of the bills say otherwise. For instance,

1. As long as a storage tank meets new EPA regulations or guidelines, no entity can be held liable under any federal, state, or local law.

2. The bills give complete immunity to all fuel corporations if a claim is based on the fuel being put into an engine. This immunity extends to every entity on the petroleum chain of commerce, including entities that design, manufacture, sell, distribute or store fuel, fuel additives, blend stocks, vehicles, engines, and non-road equipment.

3. These bills wipe out state and federal consumer protection laws and state product liability laws. Even if injured consumers prove that the product is dangerous and defective and caused catastrophic harm, the manufacturers and retailers will be completely immune, even if they intentionally or recklessly expose consumers to serious health risks.

Once again, the Washington GOP is trying to force legislation through the Congress that would ignore and crush the states' rights to run their own civil litigation systems and compromise Americans' 7th Amendment right to a civil jury trial. Additionally, I don't understand why the Washington GOP wants to extend total immunity to foreign oil companies, especially Hugo Chavez' nationalized oil company, which Chavez uses to raise revenues for his nefarious ventures and to crush democracy in Venezuela.

The Washington GOP has trapped its new Presidential nominee by forcing him to defend a special protection bill for Hugo Chavez and domestic oil companies while Americans are being hammered by record-high gas prices. I'm as pro-oil production as any Republican, and Republicans have already aggressively pursued legislation to promote increased oil production in the U.S. These bills are unnecessary and unwise, both legally and politically.

The inside-the-Beltway mentality that values campaign dollars over states' rights is about to strike again. The chairman of the House Judiciary Committee, Rep. Lamar Smith of Texas, is about to force fellow Republicans, for the third time, to vote against the 7th and 10th Amendments and for H.R. 5, the federally imposed limit on awards in medical malpractice lawsuits, which is based on the same interpretation of the Commerce Clause as Obamacare and is just as unconstitutional. Not only that, but he's doing it to claim that his committee is contributing billions of dollars of "savings" for the federal budget, based on CBO estimates. That's the same CBO that missed the Obamacare budget estimates last year by a mere 100% and has a lousy long-term record of estimating budget savings over ten years. None of that matters to Chairman Smith, who's apparently trying to convince "Big Medicine" that they should funnel their campaign contributions to Republicans.

Chairman Smith couldn't quote a single constitutional scholar, Republican President or Founding Father for federal tort reform just three weeks ago in 8 hours of debate on the House floor over H.R. 5. Again he ignores states' rights, promotes constitutional hypocrisy, and uses phony CBO numbers - that's conservative leadership? It will be interesting to see what committee members Reps. Ted Poe, Louis Gohmert, James Sensenbrenner and Steve King do about Chairman Smith's push, since all four refused to vote for H.R. 5 on the floor.

This hasn't been lost on one Tea Party leader, Judson Phillips of Tea Party Nation, who slammed Chairman Smith by name last week in a column titled, "Washington Games." Mr. Phillips urged Chairman Smith to claim real savings in Washington waste and wrote, "Instead, Lamar Smith wants to play the usual Washington game. He wants to use his position to punish those he disagrees with, pass legislation that is every bit as unconstitutional as Obamacare, while ignoring the real issues of out of control spending that we face."

Games, indeed.

Lynn Derbyshire, national spokesperson for the hundreds of family members of our servicemen killed in the 1983 bombing of the Marine barracks in Beirut, Lebanon, was interviewed yesterday by Terry Lowry, host of the "What's Up" radio program. That program is heard daily on twelve radio stations and on Sirius Family Talk Radio, Channel 131. Ms. Derbyshire's brother, Vincent Smith, was among the 241 servicement killed in the bombing in October 1983. She discussed the bombing of the barracks by Iranian-sponsored terrorists, the court judgment for $2.6 billion obtained against Iran by the families and the attachment of an Iranian account with $1.8 billion in funds, and the efforts to enact a bill in Congress (H.R. 4070 in the House and S. 2101 in the Senate) to punish Iran for its terrorism and assist the families. Ms. Derbyshire discussed the opposition to the bills by a Wall Street institution, DTCC, which in effect is siding with Iran. The Shariah Finance Watch blog has opined that DTCC's opposition "should amount to treason."

Ms. Derbyshire and the families urge all Americans to contact their Congressmen and Senators to ignore DTCC's opposition and support the bills.

You can listen to the interview in four segments, linked below:

Segment One: The bombing and impact on families

Segment Two: The court judgment against Iran

Segment Three: The frozen Iranian funds & DTCC's opposition

Segment Four: The legislation and calls to Congress

Rep Paul Broun of Georgia is a unique Republican. He's a doctor who has always bucked his fellow Republican doctors in Congress by opposing federal tort reform as an unconstitutional infringement upon states' and individual rights. He's a Tea Party hero for his strong, uncompromising stands against the growth of the federal government and the individual mandate in Obamacare. When House leadership pushed H.R. 5, the bill combining limits awards in medical malpractice lawsuits with another bill to repeal a key section of Obamacare, Rep. Broun drafted amendments to kill the unconstitutional tort reform and attracted the co-sponsorship of Rep. Lee Terry, another longtime Republican opponent of federal tort reform. Parliamentary tricks by leadership kept the amendments from being considered by House Republicans on the House floor, but Rep. Broun's move was supported by conservatives such as the Tea Party Patriots and the founder of Tea Party Nation, the Heritage Foundation, the National Conference of State Legislators, and conservative and libertarian scholars. Rep Broun gave notice at the time that he was going to propose a health care reform plan that wouldn't replace the unconstitutional Obamacare with another unconstitutional idea.

Now Rep. Broun has proposed H.R. 4224, the "Offering Patients True Individualized Options Now Act." or the "OPTION Act." Tea Party groups are hailing it as a true alternative to Obamacare, in part because it doesn't violate principles of federalism. Avik Roy, conservative columnist and health care policy analyst, describes it in full in Forbes, and I urge 7th and 10th Amendment advocates to read it and forward it to friends and allies and support Dr. Broun. You can see Dr. Broun discuss the OPTION Act on a video on his website.

There is ONE bill in the U.S. Senate that takes $1.8 billion of Iran's funds stored in a U.S. account and reserves them to compensate Iran's American terrorism victims. The Iran sanctions bill now under consideration by the Senate has one special section, co-sponsored by Senators Mark Kirk and Robert Menendez and supported by Senators of both parties. Section 503 would compensate the American victims of Iranian terrorism and keep Iran from using the funds to build nuclear weapons and fund terrorism. But a big Wall Street firm is working behind the scenes to stop the Senate from helping the victims. The families of our servicemen killed or wounded by Iranian terrorism need your help!

Some history: Iranian terrorists killed 241 of our servicemen, and injured many more, in the 1983 bombing of the Marine Corps barracks in Beirut, Lebanon. For years, the 1300 survivors and families of those killed have sought justice in American courts for that attack, and were ultimately awarded a judgment in federal court of over $2.6 billion against Iran. Their attorneys then identified and attached an account of $1.8 billion in Iranian central bank funds in a bank in NYC to satisfy that judgment. Then the families of the servicemen killed in the 1996 Iranian bombing of the Khobar Towers in Saudi Arabia won a judgment and now stand to share in that account.

But without special legislation, the order freezing the funds could be lifted, possibly enabling Iran to recover the money. Lynn Smith Derbyshire, whose brother was killed in the barracks bombing and is now national spokesperson for the Beirut Marine families, says, "The Government of Iran will continue to do everything it can to hurt Americans. We see no reason to enable Tehran's campaign of terror. Allowing the Iranian Government to get this frozen money back would do just that." Section 503 of the Iran sanctions bill, which is numbered S. 2101, was approved by the Senate Banking Committee on February 2 and awaits Senate floor action.

But a Wall Street powerhouse, the Depository Trust and Clearing Corporation ("DTCC"), opposes Section 503 and is trying to kill it behind closed doors. DTCC works with financial institutions from around the world to ensure that financial transactions clear smoothly and quickly. But one of DTCC's business partners is Clearstream, a European financial institution at the heart of the transfer of Iran's funds into New York City. Intentionally or not, DTCC is, in effect, trying to help Clearstream recover the $1.8 billion in Iran's funds, by sending high-priced Washington lobbyists into Congressional offices to "amend" the bill. Their "amendments" could actually kill the families' pursuit of justice and enable Iran to recover the $1.8 billion.

It's time for the Senate to shut the door on DTCC and support the families of our terrorism victims. No other bill before the Senate actually takes Iran's money and reserves it for Iran's American victims. The Beirut Marine families are urging Americans to contact Senators to support Section 503 of S. 2101 without DTCC's "poison pills" and approve it in the Senate quickly.

This week we've been deluged with the reports on the oral argument before the Supreme Court on the Obamacare case. And last week, the House GOP leadership pushed a bill combining federal limits on medical malpractice lawsuits with an attractive bill to repeal a key component of Obamacare.

The two belong together. After all, Obamacare and federal tort reform are equally and fundamentally based on the expansive interpretation of the Commerce Clause initiated after the Supreme Court's 1942 decision in Wickard v. Filburn. The Obama Administration cited Wickard to support ObamaCare (page 18); the American Tort Reform Association cited it to support H.R. 5 (page 2), the bill to limit awards in medical malpractice and health care-related lawsuits. Constitutional conservatives and states' rights advocates consistently oppose both Obamacare and federal tort reform. That's why VA AG Ken Cuccinelli sued to block Obamacare and promised to sue to block any federal law to limit medmal awards. It's why Prof. Randy Barnett is a leading anti-Obamacare co-counsel and why he criticized federal tort reform bills twice last year, including H.R. 5. Ditto Carrie Severino, who wrote the Senate Republicans' amicus brief against Obamacare and warned them against including a medmal limit section in their jobs bill. Tea Party Nation founder Judson Phillips and Sens. Tom Coburn and Mike Lee consistently opposed both, with Senator Lee criticizing federal tort reform again this week. Constitutional scholars Rob Natelson and Ilya Somin contributed separate amicus briefs in the Obamacare cases and have criticized H.R. 5 multiple times between them. Reps. Ted Poe and Ron Paul are among the numerous House Republicans who criticize both Obamacare and federal tort reform on constitutional grounds.

Meanwhile, the AMA and fellow medical groups worship at the Wickard altar and want both Obamacare, for millions of new forced patients, and federal medmal limits, for special protection unmatched for any other industry. They pushed successfully for the House GOP to ignore states' rights and to override state medmal law and court decisions by voting for H.R. 5.

The debate over H.R. 5 was a showcase for constitutional hypocrisy and should have been an embarrassing spectacle for Republican states' rights advocates. In 8 hours of floor debate over two days, reported on 65 pages in the Congressional Record, the proponents of federal tort reform in H.R. 5 didn't cite a single sentence by any Founding Father - didn't even name a Founder - in support for their proposition that the federal government can take over state tort law. Neither did they cite or quote the writings of a single current respected constitutional scholar in support of H.R. 5. Meanwhile, it was Democratic Reps. John Conyers, Maxine Waters and Sheila Jackson Lee who quoted conservatives and libertarians, from those named above to Pres. Ronald Reagan, for their opposition to any federal tort reform bill. Fortunately, there were almost two dozen House Republicans who voted with the Founding Fathers and did not vote for H.R. 5, including many members of the "10th Amendment Task Force," formed specifically to stand up for federalism. These Members resisted threats and promises to vote with their conscience.

According to one published report, House leaders wanted to reel the AMA "back in the fold" so it supports Republican candidates and policy objectives with campaign contributions. That's not worth the cost of dishonoring the Constitution's clear language and the Founders' writings, none of which grant authority over tort law to the federal government, and instead reserve the adminstration of state courtrooms to state legislatures. And it's not worth rewarding the medical groups seeking to jam an equally unconstitutional individual mandate down our throats.

It better be a really big check.

On November 28, I posted about a speech by a true constitutional conservative and Tea Party favorite, Republican Sen. Mike Lee of Utah, in which he explained that he wouldn't vote for a Senate Republican jobs bill because it included a section imposing federal limits on awards in medical malpractice lawsuits (the Senate version of H.R. 5, passed by the House last week).

Sen. Lee discussed the Obamacare case on Fox Business Network yesterday, and he used the opportunity to again make the link between Obamacare and federal tort reform, as many conservatives and libertarians have done in criticizing H.R. 5. The anchor didn't ask for his views on federal tort reform; the Senator volunteered the comparison. Here is the pertinent excerpt, from a transcript provided by Congressional Quarterly:

Decisions like this, gut-wrenching difficult decisions about health care reform, are made by states. They ought to be made by states. It's the states that license doctors and nurses and hospitals and clinics. It's the states that license and regulate health care, health insurance companies. It's the states that come up with the system of tort laws that govern medical malpractice lawsuits.

So states control all these drivers of health care costs. It's entirely appropriate for states to engage in more comprehensive types of reform.

Now, a state like mine, Utah, isn't going to make the same decisions that a state like Massachusetts or Vermont might make, and thank heaven for that. But there is a fundamental difference between what happens when a state does this as compared to when Congress does it.

Now if only Sen. Lee's Republican colleagues will listen to him...

This week, the House of Representatives will debate and vote on the fiscal year 2013 budget for the federal government. House Republican leadership supports the budget proposed by House Budget Committee chairman Rep. Paul Ryan. But the Ryan budget dishonors states' and individual rights protected by the Constitution and Bill of Rights, by proposing to cap non-economic damages in medical liability lawsuits across the country, without respect to existing state law governing civil suits (see page 55 of the Ryan budget proposal). Similar to the proposal in H.R. 5, the bill passed by the House last week to take over state courtrooms and impose federal limits for medical malpractice lawsuits, the Ryan budget proposal ignores the objections to federal tort reform by numerous conservatives and libertarians, as documented here over and over again.

But another budget plan proposed by numerous conservative House Republicans, respects constitutional rights and honors federalism, and should be supported by the House majority. The Republican Study Committee's proposed FY 2013 budget doesn't interfere in state courtrooms protected by the 10th Amendment or our right to a civil jury trial protected by the 7th Amendment. It doesn't propose any caps on damages, thereby recognizing that tort law isn't an enumerated power for the federal government in the Constitution.

Real constitutional conservatives in the House should honor the Constitution and Bill of Rights and vote for the RSC budget.

In a briefing paper sent to House Republican staff, a House Republican leader and the chairman of the House Judiciary Committee, Rep. Lamar Smith, are misquoting Ronald Reagan on the subject of tort reform. Reagan spoke about tort reform only once in his career, and in that speech specifically referred to the states' authority to run their own civil justice system under the Constitution. Yet that statement is excluded from the GOP leaders briefing paper to Members on H.R. 5. I wrote a lengthy post about this on January 24 of this year. Here is what Reagan said in that speech, including a sentence in which Reagan defended states' rights over tort law:

"Earlier this year I endorsed the report of my Domestic Policy Council's Tort Policy Working Group. This report contains a number of recommendations, recommendations that include fixed-dollar limitations for certain kinds of awards and the establishment of assurances that liability judgments go to those actually wronged or injured and not to the lining of their attorney's pockets. Now, one of the report's most important recommendations urged our administration to submit reform legislation to the Congress.

This legislation, carefully drafted, has now been introduced in the Congress by Senator Robert Kasten and Congressman Hamilton Fish. It restores the fault standard, which requires that actual fault or wrongdoing must be established in most cases before liability can be assessed. It limits pain-and-suffering and punitive damage awards, awards the amount contingency-fee lawyers could earn, and restricts the joint and several liability doctrine that can force a single defendant to pay all damages even if he is only partly to blame. To be sure, much tort law would remain to be reformed by the 50 States, not the Federal Government. And in our Federal system of government this is only right. Many of the Tort Policy Working Group recommendations, for example, would have to be implemented at the State level to be fully effective. This administration's bill represents a much-needed overhaul of Federal laws governing interstate commerce --one of the fields of authority the Federal Government is specifically granted by the Constitution -- and sets an example of common sense for the rest of the Nation to follow."

THE GOP LEADERSHIP PAPER TO MEMBERS EXCLUDE REAGAN'S DEFENSE OF STATES' RIGHTS. Moreover, the paper excludes that fact that Reagan never proposed a federal tort reform bill in any State of the Union message or any economic proposal.

Ronald Reagan was a true constitutional conservative, and tort reform was not on his radar. To misquote him on this subject is a terrible disservice to his legacy and to those of us who worked for him in his Administration.

The problem with most of the proposed reforms in H.R. 5 is that the law governing medical malpractice claims is a state issue, not a federal issue. Despite H.R. 5's reliance on the Commerce Clause, Congress has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims.

So writes Hans von Spakovsky, Senior Legal Fellow at The Heritage Foundation's Center for Legal and Judicial Studies, where he manages the Civil Justice Reform Initiative. He joins the growing chorus of conservatives and libertarians condemning H.R. 5 as an unconstitutional overreach by Congress into tort law, an issue not enumerated for the federal government in the Constitution. He joins the National Conference of State Legislators, constitutional scholars Rob Natelson and Ilya Somin, and Tea Party Nation leader Judson Phillips who have so criticized H.R. 5 in the past week. Last year, each of those parties criticized H.R. 5 on constitutional grounds, as did conservative and libertarian superstars such as Virginia AG Ken Cuccinelli; Profs. Randy Barnett and John Baker; Sens. Tom Coburn and Mike Lee; Carrie Severino of the Judicial Action Network; Reps. Ron Paul, John Duncan, Ted Poe; and Tea Party leader Mark Meckler. Even legal experts critical of the tort system such as Ted Frank and Walter Olson have described H.R. 5 as "impermissible" (Ted Frank's term).

Republican and Democratic Congressmen are trying to amend H.R. 5 to protect states' and individual rights before the House votes on it later this week. Americans who cherish their God-given rights should call the U.S. Capitol switchboard at 202-225-3121, ask to speak with their Congressman and insist that he/she oppose that bill unless the unconstitutional language is removed.

The fervor with which many of my fellow Republicans support a nationwide limit on awards in medical malpractice lawsuits masks a deep schizophrenia inside Republican circles. For even the most ardent opponents of trial lawyers and civil suits in medmal cases flip-flop to SUPPORT civil suits to protect First Amendment rights and for lawsuits related to selected social issues. And the bills don't cap damages, override state law, or set a cap on the attorneys' fees, unlike H.R. 5, the bill before the House this week to severely limit medmal suits.

On February 28, the House agreed, by a simple voice vote, to pass H.R. 1433, the "Private Property Rights Protection Act of 2012," which assists private property owners subject to abusive eminent domain actions by local governments. The official summary of the bill states that it "establishes a private cause of action for any private property owner or tenant who suffers injury as a result of a violation of this Act." Moreover, the bill also prohibits state immunity againsg civil actions in federal or state court. I covered that bill here from its inception last year, and was astonished with the dedication that anti-medmal-lawsuit Republicans gave to protecting private property rights through civil suits brought by trial lawyers.

The abortion issue and the conscience protection issue arising from the enforcement of Obamacare mandates have led to numerous bills in which one or more parties with an interest are invited to file civil suits.

For instance, H.R. 3802, the "National Pro-Life Waiting Period Act of 2012," prohibits an abortion provider from performing an abortion without waiting 24 hours after obtaining a written certification from the pregnant woman certifying the date and time of her first in-person meeting with the provider to seek the abortion. The bill enables the pregnant woman, or the parents/legal guardians of a pregnant minor, to sue the abortion provider if an abortion has been performed in violation of this Act. I know if at least three other pro-life bills introduced in this session of Congress that enable civil suits against abortion providers, including H.R. 3541, the "Prenatal Nondiscrimination Act," which prohibits an abortion based on the sex, gender, color or race of the child, or the race of a parent of the child, about which I posted on February 9.

And virtually all of the conscience protection bills introduced in reaction to the Obamacare mandates enable a private right of action. The bill drawing the most attention, sponsored by Sen. Roy Blunt and titled the "Respect the Rights of Conscious" amendment to the Senate highway bill, established a private right of action (by any "persons or entities protected") to assert a violation of this section as a claim in a civil suit. The "persons protected" could have been anyone from a provider of a health care insurance plan to a beneficiary. That amendment was not approved by the Senate.

I have no personal objection to Congress creating private rights of action for any of these causes. The Founding Fathers believed in open courtrooms for all Americans to defend their God-given rights. But it's hypocritical to do so in these instances, and then turn right around to deny access to the courtroom for someone injured through medical malpractice.

Why should doctors and hospitals be granted special protection in federal law when states and municipalities are told they might have to pay damages for violating our civil rights?

Tea Party Nation founder Judson Phillips slams H.R. 5 in a post on the TPN website and a newsletter sent today to TPN members and newsletter subscribers. Says Phillips in his newsletter:

The 10th Amendment does not say that the powers granted to the states can be usurped simply because the right party is in power.

The most recent instance on selective 10th Amendment interpretation is occurring around the IPAB repeal bill. The IPAB is the Independent Payment Advisory Board, or as it is also known, the death panel.

The IPAB repeal ought to be fairly simple. Even some Democrats are on board with it. The Republican leadership decided to play stupid political tricks and attach the Medical Malpractice bill to the IPAB repeal bill.

Whether you think tort reform is a good idea or not, it is an issue that belongs to the states, not to the federal government. Tort law has always been governed by the states.

The 10th Amendment means what it says. It is not a campaign slogan that we throw out when it is convenient and ignore the rest of the time. The 10th Amendment is one of the best defenses we have against tyranny.

We supported Republicans in 2010 because we believed them. We did not elect them because we thought they were hypocrites.

We in the Tea Party do not insist in ideological purity but we insist that the candidates we support, support the Constitution. That means all of it.

Not just the parts we find convenient.

Multiple House Republicans will co-sponsor an amendment to strip the tort reform language from the combined bill and leave the good IPAB repeal language. They need to know that real conservatives out there support them!

One of the ways in which attorneys general protect the integrity of state laws and constitutions is by carefully reviewing the actions of the federal government and responding when they break the law or overstep the bounds of the Constitution.

Federalism is the division of authority between the federal and state governments that the Founding Fathers created to provide a check on federal power so that the federal government would not become destructive of the very liberty it was instituted to protect.

So states a press release on the website of the Republican Attorneys General Association. That's a great statement of the mission of state Attorneys General, and state AGs of both parties have often backed that statement up with real action to defend states' and individual rights from attack by Uncle Sam.

But thus far, we've heard nothing from state AGs about the intention of House Republican leaders, announced from behind closed doors without consultation with the AGs, to force a vote on a sweeping federal takeover of state courts and their jurisdiction over health care-related lawsuits. The leaders are forcing House Republicans to vote for that bill, H.R. 5, and making it difficult to oppose by combining it with the popular bill to repeal part of unconstitutional Obamacare, the section creating the IPAB "death panels." House Republican leaders then made it very difficult to amend the bill by setting an amendment deadline of 3 pm ET Monday, a time when most House Republicans will still be out of town.

Numerous states' rights advocates have spoken out against H.R. 5, recently an in the past year. Last week, the National Conference of State Legislators, constitutional scholars Rob Natelson and Ilya Somin, and Tea Party leader Judson Phillips again criticized the bill, reiterating previous denunciations of H.R. 5, or federal tort reform laws in general, by them and by Profs. Randy Barnett and John Baker; Sens. Tom Coburn and Mike Lee; and other conservatives and libertarians,

So it will be up to state AGs to take a stand for their states, and call attention to this overreach in federal power. Virginia AG Ken Cuccinelli sharply condemned the Senate version of H.R. 5 last fall but has been strangely silent thus far.

There's not much time left for House Republicans to hear from the self-proclaimed guardians of state constitutions and of states' and individual rights.

It's a stunning betrayal of all those hardworking, pro-Constitution Americans who gave U.S. House Republicans their majority.

That's how Rob Natelson, premier constitutional scholar and past Republican candidate, yesterday described the plan concocted by House GOP leaders to force House Republicans to vote for either a bill crushing states' rights or to affirm a key section of the equally unconstitutional Obamacare health care law. After the House adjourned last week, Speaker Boehner and Majority Leader Cantor announced that they would push Members to vote for H.R. 5, a bill mandating sweeping a federal takeover of all medical malpractice lawsuits. That bill has been on the shelf for months, thanks to strong conservative opposition. So to make it extremely difficult for GOP Congressmen to oppose it now, Boehner and Cantor attached a very attractive Obamacare repeal bill to H.R. 5. The result is the Hobbesian choice as described succinctly by Rob Natelson: If Republicans vote "aye," they get unconstitutional tort reform. If they vote "no," then they're retaining an unconstitutional part of Obamacare.

Mr. Natelson, a former law professor at the University of Montana, has made a national reputation in constitutional scholarship for identifying the early writings and letters of the Founding Fathers. He has been warning Republicans to avoid H.R. 5 for almost a year. Once again, he takes dead aim at it on the Tenth Amendment Center website:

Although promoted as "medical malpractice reform," the measure is actually a big step toward federal control of state court systems. Essentially, it's a lengthy set of mandates telling state and federal judges how to run their own courts whenever they deal with any health-care-related personal injury cases... This measure tells state judges and legislatures what damages they can allow, when they can allow them, how to instruct their juries, what the time period for bringing suit must be, etc. etc. One section beginning with the words "The provisions governing health care lawsuits set forth in this title preempt . . . State law" is given the Orwellian title, "State Flexibility and Protection of States' Rights."

Mr. Natelson's new blast at the plan to push H.R. 5 was joined yesterday by Prof. Ilya Somin of the George Mason Law School, who criticized House leaders on the legal blog, "Volokh Conspiracy."

"It is indeed true that I have argued that federally mandated tort reform is both constitutionally suspect and largely unnecessary, because interjurisdictional competition gives states strong incentives to reign in their tort lawsuits on their own, as many have already done. House Republicans' support for federal tort reform calls into question the genuineness of the GOP's commitment to respecting constitutional limits on federal power."

Mr. Natelson also slams the hypocrisy of the House GOP leaders for basing their plan to take over state courts on the same constitutional justification as Obamacare:

"How do its sponsors justify this under the Constitution? The same way the national health care zealots justify Obamacare: The Constitution gives Congress power to regulate interstate commerce, so Congress may regulate everything that "affects" commerce, presumably including breathing. Of course, this justification is bogus. When the Constitution was being debated, its supporters emphasized that personal injury law within state boundaries would be a state concern. And although the modern Supreme Court has smudged constitutional boundaries a good deal, it has never authorized congressional micro-meddling of state judicial systems. On the contrary, the Supreme Court has ruled repeatedly that states and state courts are constitutionally free of most federal 'commandeering.'

These two respected conservative scholars join the National Conference of State Legislators in opposing H.R. 5.

NOTE: In his post, Prof. Somin comments on my characterization of his positions in my post yesterday about Ted Frank's and Walter Olson's positions on H.R. 5. I certainly did not intend to refer incorrectly to Prof. Somin and have amended that post accordingly.

The National Conference of State Legislators (NCSL), the bipartisan group of state legislators in all 50 states, today announced its continued strong opposition to H.R. 5, the bill to establish federal limits on awards in medical malpractice lawsuits, and to House leadership's plans to force a floor vote on the bill early next week. In a letter to Speaker Boehner and Minority Leader Pelosi, NCSL leaders said that it opposes attaching HR 5 to any piece of legislation and opposes the "one-size-fits-all" approach enacted in the bill. "Medical malpractice, product liability and other areas of tort reform are areas of law that are regulated by the states."

You can download the letter here.

I've traded Tweets this morning with Ted Frank of the Manhattan Institute and is a leading critic of civil litigation, about his position on H.R. 5, the bill mandating limits on awards in medical malpractice lawsuits. With House leadership intent on forcing a floor vote on H.R. 5 next week, I want to remind everyone what Mr. Frank and Walter Olson, another esteemed member of the anti-civil litigation movement, wrote last year about H.R. 5.

On May 22 of last year, Prof. Ilya Somin of George Mason Law School, a noted libertarian and anti-Obamacare scholar, concurred with Prof. Randy Barnett's view that H.R. 5 is an unconstitutional infringement on states' rights and inconsistent with Republican opposition to Obamacare. "Hopefully, at least some Republican conservatives will begin to see that you can't advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other." (CORRECTION, March 15: Prof. Somin is a libertarian and has never been in the "anti-trial lawyer" camp and I apologize for any confusion. I include his views in this post to establish the timeline.)

The next day, Ted Frank wrote his concurrence with that view. Quote: "It's easy enough for Congress to condition portions of Medicare block grants on a state establishing reasonable medical-malpractice litigation guidelines, or for Congress to prohibit certain types of lawsuits over federally-funded medical care. It doesn't need to impermissibly federalize all medical malpractice litigation to accomplish reform."

That day, Walter Olson wrote on his agreement with Randy Barnett. A short segment: "Thanks to star libertarian lawprof and Cato senior fellow Randy Barnett for pointing out something that has needed saying for a while: most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems. Most medical malpractice suits go forward in state courts under state law. If the U.S. Congress wishes to impose a nationwide rule on these suits, such as by limiting damages for pain and suffering, it first needs to answer the question: under which of the federal government's constitutionally prescribed powers is it acting? Even if it can identify such authority, it should also ask: is it a wise idea--consistent with what one might call a prudential federalism--to gather yet more power in Washington at the expense of the states? Unfortunately, the backers of the current federal med-mal bill have chosen to rely on the Supreme Court's very expansive "substantial effects" doctrine..."

I'm not taking anyone's words out of context. I truly respect Messrs. Frank and Olson for their views, even as I disagree with them. I'm just quoting two of the bright shining lights in the "tort reform" movement. each of whom are clearly opposed to H.R. 5 in its current form. House leadership should take note.

UPDATE: As I was posting the above, Mr. Frank wrote a new post on H.R. 5 on his blog (which I recommend to anyone interested in legal policy), and I'll quote in full below:

"HR 5, federal regulation of medical malpractice litigation, represents good public policy that would reduce abusive lawsuits and improve health outcomes. But since it would transfer wealth away from lawyers to patients and doctors, the litigation lobby has actively opposed it, and quoted me out of context in that regard. One would certainly prefer that HR 5 be tweaked to unambiguously comply with a vision of the Commerce Clause consistent with, say, the Randy Barnett view. It would be painless to do so. For example, one could structure the legislation to withhold 25% of Medicare funds from states that fail to meet certain medical malpractice litigation standards, rather than federalizing what is (unlike, say, product liability or consumer class actions) largely a local issue: the end result would be even better than this bill. And states that have already implemented reform might be legitimately offended that the benefits of their foresight will be blunted when Congress shunts competing states along; one solution to that might be to limit the reforms to patients who use federally-subsidized medicine, such as Medicare, Medicaid, or PPACA exchanges. But given trial lawyer support for an administration that has propounded PPACA, the trial lawyer opposition to this bill on Commerce Clause grounds is totally disingenuous. Let's see the trial bar lobby for repeal of PPACA, and then they can legitimately complain about HR 5's federalism issues. (Of course, as a political matter, this is largely counting angels on the heads of pins: Harry Reid will never permit this to come to a vote in the Senate, and even if it passed the Senate, Barack Obama would veto this on behalf of his trial-lawyer friends.)"

Four points in response: First, Mr. Frank is still clearly uncomfortable with H.R. 5 in its current form. Second, I wouldn't consider the changes that he proposes to be mere "tweaks," and I'll bet the bill's sponsors and supporters wouldn't either. Third, the trial lawyers' lobby (my clients) didn't lobby for the enactment of Obamacare and supports principled conservatives in the Republican Party every day, and my longtime readers know that I HATE OBAMACARE, mostly because it's as unconstitutional as H.R. 5. Fourth, a House bill's chances in the Senate are irrelevant; something like 90% of House-passed bills never get a Senate floor vote. That's no reason for the House to pass an unconstitutional bill.

I appreciate Mr. Frank's post and will update this post accordingly.

For months, it appeared that House Republicans had largely agreed with conservatives and libertarians such as Virginia Attorney General Ken Cuccinelli; Randy Barnett; Senators Tom Coburn and Mike Lee; Tea Party movement leaders such as Judson Phillips and numerous House Republicans that federal tort reform bills violate the states' rights under the 10th Amendment to run their own legal systems without federal interference. There has been no floor action on H.R. 5, a bill mandating federal limits on awards in medical malpractice lawsuits and the subject of numerous posts on this website.

But last Friday, after the House adjourned for ten days, House Republican leadership reportedly decided to attach H.R. 5 to the bipartisan bill repealing the Independent Payment Advisory Panel (IPAB), a key staple of ObamaCare, with a floor vote as early as next week. Here's a reminder of the lineup against H.R. 5: Prof. Randy Barnett stands against both ObamaCare and federal tort reform, referring to pro-H.R. 5 Republicans as fair-weather federalists and FINOs ("Federalists In Name Only"). Prof. John Baker, a Federalist Society superstar, wrote last year that a vote for H.R. 5 would weaken the anti-ObamaCare legal argument before the Supreme Court. And Virginia Attorney General Ken Cuccinelli promised to sue against a federal tort reform bill even quicker than he sued against ObamaCare. Sen. Tom Coburn has told me personally that if the federal government is going to take over state tort law, there's no reason to even have states, and he opposed federal tort reform in an interview last year. Sen. Mike Lee refused to vote for the Senate Republican jobs bill precisely because it included a version of H.R. 5. State legislators warned Congress last year against mandating federal medmal limits. Other conservative politicians and leading intellectuals against H.R. 5 include Reps. Ron Paul, Ted Poe, John Duncan, Lee Terry, and Morgan Griffith; and Walter Olson, Ted Frank, Rob Natelson, Carrie Severino and Ilya Somin.

The upper echelon of conservative and libertarian legal theorists know that neither tort law nor health care are enumerated powers for the federal government in the Constitution. The pro-medmal law crowd abuses the Commerce Clause, as well as the Necessary and Proper Clause, as much as ObamaCare proponents. Yet House Republican leadership unilaterally decided, behind closed doors in the oak-panelled, leather-appointed chambers of the Capitol, to blast away at states' and individual rights. This cannot stand. Real constitutional conservatives should contact their Representatives immediately and oppose this assault on the Constitution and the Bill of Rights.

The drive to enact a bill to use Iran's funds frozen in a U.S. account to pay the families of U.S. victims of Iranian terrorism picked up a key endorsement yesterday. Judson Phillips, founder of Tea Party Nation, endorsed HR 4070, sponsored by Rep. Bob Turner (R-NY) and co-sponsored by a bipartisan group of Congressmen. In his endorsement, posted on the TPN website and his personal website, Judson wrote,

Taking this money away from Iran and making certain it cannot be used to advance terrorism is a great idea. Giving that money to the Americans who have been the victim's of Iran's terrorism is not just justice it is payback.

If Congress does not act, the order freezing the Iranian funds could be lifted. Can you imagine the celebration in Tehran if they get their money back? Just on general principles does anyone doubt Iran would not use some of this money for terrorism?

Judson Phillips recognizes that taking Iran's money to pay the families of our brave servicemen killed by Iran in the 1983 Beirut Marines barracks and 1996 Khobar Towers bombings is the right thing to do and smart policy. Those families exercised their God-given right to take their claims against Iran to federal court and obtained judgments against iran which can and should be satisfied by releasing Iran's funds in the account to them. Hopefully Judson's endorsement will lead to additional support for the bill in the U.S. House and eventual enactment of the provisions by the entire Congress.

This week the House of Representatives approved a resolution condemning the Government of Iran for its continued persecution, imprisonment, and sentencing of Pastor Youcef Nadarkhani. That's great, and that's important. But if Congressmen REALLY want to hurt Iran, they should support and approve the bill numbered H.R. 4070 and sponsored by Rep. Bob Turner (R-NY). That's the ONLY bill that actually takes Iran's money to compensate the families of our brave servicemen killed and wounded in Iran's terrorist attacks in the 1983 Beirut Marine and 1996 Khobar Towers bombings. The bill helps those families to satisfy federal court judgments against Iran with $1.8 billion of Iranian central bank funds in an account in a NYC bank, attached by the families' attorneys. Absent this legislation, Iran might break the attachment and reclaim its funds, then use them to finance more terrorism and nuclear proliferation. The bill is starting to pick up co-sponsors at a steady clip, but needs more to show Iran that House members won't hesitate to support Americans killed or maimed by Iranian terrorism. The language in this bill is NOT in the Iran sanctions bill passed by the House in December, but it is similar to the Senate version of the Iran sanctions bill, approved unanimously on February 2 by the Senate Banking Committee. Read more about the bill and the Beirut Marine long families' quest for justice on their press release. I'm proud to work alongside the Beirut Marine families and look forward to the day when Iran's money is in their hands and not in Ahmadinejad's.

There is ONE bill in the House that take's Iran's funds stored in a U.S. account and reserves them to compensate Iran's American terrorism victims. H.R. 4070 is sponsored by Rep. Bob Turner (R-NY) and supported by Members of both parties. Iranian terrorists killed 241 of our servicemen, and injured hundreds more, in the 1983 bombing of the Marine Corps barracks in Beirut, Lebanon. For years, the 1300 survivors and families of those killed have sought justice in American courts for that attack, and were awarded a judgment in federal court of over $2.6 billion against Iran. Their attorneys then identified and attached an account of $1.8 billion in Iranian central bank funds in a bank in NYC to satisfy that judgment. Then the families of the servicemen killed in the 1996 Iranian bombing of the Khobar Towers in Saudi Arabia won a judgment and now stand to share in that account. But without special legislation, the order freezing the funds could be lifted, possibly enabling Iran to recover the money. This morning, the Beirut Marine families issued a press release urging House Members to co-sponsor and pass H.R. 4070. Lynn Smith Derbyshire, whose brother was killed in the barracks bombing and is now national spokesperson for the Beirut Marine families, says, "The Government of Iran will continue to do everything it can to hurt Americans. We see no reason to enable Tehran's campaign of terror. Allowing the Iranian Government to get this frozen money back would do just that." The bill is similar to language inserted into the Senate version of the Iran sanctions bill, now numbered S. 2101, which was approved by the Senate Banking Committee on February 2 and awaits Senate floor action.

No other bill before the House actually takes Iran's money and reserves it for Iran's American victims. The Beirut Marine families are urging House Members to co-sponsor H.R. 4070 and bring it to the floor quickly.

Last week, I traveled to Nashville, TN, to try to advise Tennessee state legislators to stick to 200 years of state jurisprudence and the American rule in civil lawsuits, and not institute a "Loser Pays" system in courtrooms. As I've explained here before, "Loser Pays" means that middle- and lower-income individuals, and small businesses with low long-term capital reserves, would have to risk their meager savings when filing a civil suit. One attorney there analogized such bills to the New England Patriots' being forced to pay the New York Giants' expenses for the Super Bowl after losing the game!

I'm also concerned that social conservative litigators, such as the ACLJ, Becket Fund for Religious Liberty, Liberty Counsel, Thomas More Law Center and the Alliance Defense Fund, could be severely impacted by state "Loser Pays" statutes. One proposed bill in Tennessee would institute a rule under which the side that loses three straight rulings in a given case automatically pays the other sides' expenses. Does that mean, for instance, that the Alliance Defense Fund has to pay the attorneys' fees if the Tennessee state judiciary rules against it all the way through the state Supreme Court in a religious liberty case? I know that the senator proposing the bill hasn't contacted any of the groups named above. That bill could be extremely costly, and many social conservative litigators could face severe disincentives to filing a suit to protect our basic freedoms.

"Loser Pays" is a big trend sweeping through statehouses across America. Attorney Brett Emison wrote recently of his effort to persuade the Missouri state legislature to not institute "Loser Pays" there. I urge my readers to read his post about the dangers of "Loser Pays" and the long history of the American rule. The Founders had good reasons to insist otherwise.

I discuss this issue on today's What's Up radio program, hosted by Terry Lowry and broadcast nationally on Sirius Channel 131 and also on 12 radio stations from Texas to Pennsylvania. You can download and listen to Segment 1 here and to Segment 2 here.

Tomorrow I will be in Nashville, TN, to promote the universal right to civil jury trials, standing alongside the Tennessee Association for Justice and Susan Saladoff, producer of the documentary movie, Hot Coffee, which tells the truth about the famous McDonald's "hot coffee" case. As I mentioned in an interview with the Tennessee Public News Service, the "tort reform" side has mythologized that case, completely distorting the facts. Judson Phillips, founder of Tea Party Nation, rebutted those myths with actual facts in a December WorldNetDaily piece on the unconsitutionality of federal tort reform. I'm very pleased that Judson will join us tomorrow in Nashville.

It's critical that Americans learn of the importance that the Founding Fathers gave to the right to civil jury trials for all causes and in all courts, state and federal. Historian Pauline Maier's book, Ratification: The People Debate the Constitution, 1787-1788, has drawn rave reviews from a number of conservative legal scholars. Randy Barnett called it "marvelous" and described it as "the first comprehensive narrative of the ratification of the U.S Constitution, from the Philadelphia convention, through each of the states (in order of deliberation) and the drafting and adoption of the first 10 amendments." So I downloaded it on Kindle and searched for references to the right to a civil jury trial. And the book refers to a number of instances in which the states discussed and debated the need to protect that right in explicitly in the Bill of Rights after the delegates to the Constitutional Convention rejected motions to do so in the Constitution.

The benefit of the right to civil jury trials and the need to protect that right was a part of numerous state ratification conventions. For instance, the delegates to the Pennsylvania ratification delegation entered into a heated argument over whether Sweden had utilized, and then eliminated, civil jury trials and the impact on civil justice, which was resolved only when a commentary by the English jurist William Blackstone proved that civil jury trials had been commonplace thoughout Europe. The book documents similar debates in Connecticut and Virginia, the latter resolved by reference to the same Blackstone commentary that determined the debate in Pennsylvania. No less a patriot than Patrick Henry argued that the lack of explicit protection of jury trials for civil and criminal cases would lead to the loss of all rights. It was these debates that eventually led James Madison to propose the inclusion of what became the Seventh Amendment in the package of constitutional amendments proposed during the first Congress. And as I've documented in posts here, most state constitutions explicitly protect the right to civil jury trials.

I hope tomorrow's events in Nashville will be a springboard to a nationwide discussion on the meaning of the Seventh Amendment and the need to protect the God-given right to civil jury trials in state and federal courts. It's clear from the documentation of the state ratification conventions that the Founders did not intend to see this precious right limited or eliminated in state courts.

The Founding Fathers built a civil justice system designed to protect the God-given, unalienable right of all Americans to present their claims before a local jury. That right was enunciated centuries ago by Moses, when he decreed that a man whose property is damaged by a neighbor's actions is entitled to punitive damages. That right to civil justice was protected by Article 39 of the Magna Carta, sealed in 1215, when English peasants forced King john to recognize God-given rights to self-government. That right was protected by our Founders in the 7th Amendment to the Constitution, introduced by James Madison during the first Congress, along with the other amendments in the Bill of Rights.

The Founders didn't limit the exercise of that God-given right to certain causes or to one group of citizens over another group of citizens. As the shackles of racism and sexism were removed, all Americans were eventually afforded that right to seek justice before a jury for their claims. So trespass cases, medical malpractice claims, property rights claims, and lawsuits to protect religious liberty under the First Amendment are equal under the Constitution and Bill of Rights, just as each so if is equal in the eyes of God.

Today on the nationally syndicated What's Up broadcast on Sirius Channel 131 and 12 radio stations, I discussed the fight for religious liberty brewing over the Obama Administration's "compromise" on the mandate for insurers to provide contraceptives, some of which act as abortifacients. Those of us who own a business and are faithful to the teachings of the Catholic Church, and non-Catholic business owners whose religious convictions oppose abortion, will find it impossible to reconcile that mandate with our religious convictions. Eventually, we might have to seek justice, and prevent the imposition of that mandate, by filing suit in federal court. In so doing, we would follow in the footsteps of our forefathers who sought protection from excessive power wielded by the sovereign, through an appeal in the halls of civil justice. Regardless of anyone's views on the underlying issues, all Americans should respect the conscientious objections to certain types of medical services, and all Americans should respect the constitutionally protected right to defend such objections in a court of law.

You can download my audio interview from the What's Up program:
Segment 1
Segment 2

I've written often about the interviews conducted by Terry Lowry on his radio show, the What's Up show, broadcast on 12 radio stations from Houston to Chattanooga to Pittsburgh. I'm pleased to announce that this pro-7th Amendment broadcast, by a noted social conservative and Christian broadcaster, is now also heard on Sirius satellite radio on Channel 131, Family Talk Radio. Now the entire nation can hear periodic reports on civil justice issues and a defense of the Founding Fathers' plan for open courtrooms for all types of cases, from medical malpractice and defective products to religious liberty, property rights and other personal rights. The interviews are also available for downloading from the What's Up home page.

Terry interviewed me for today's broadcast, and we discussed recent congressional action to assist property rights owners, victims of forced abortions, and American victims of Iranian terrorism by enabling their lawsuits. I noted the inconsistency between the protection by many Congressmen of those groups' 7th Amendment rights and the attacks by some of the same Congressmen on medical malpractice lawsuits. As I noted, the Founders built a civil justice system to enable Americans to have their civil suits heard before juries in all types of cases. The Founders didn't differentiate between lawsuits to protect property rights and medmal claims, and neither should Congress. See my post of January 25 on the reasons for Republicans and Tea Partiers to support open courtrooms for all.

You can download listen to the first interview segment here and to the second interview segment here.

This week, the House Judiciary Committee approved H.R. 3541, the "Prenatal Nondiscrimination Act," which prohibits an abortion based on the sex, gender, color or race of the child, or the race of a parent of the child, as well as certain acts which facilitate the performance of a sex-selection or race-selection based abortion.

Articles from the pro- and anti-abortion commentators have focused on the criminal side of the bill and its potential impact on abortion rights. But I want to focus on another section of the bill, one which enables civil suits by the woman whose baby could be forcibly aborted, or by certain family members. That's a remarkable development for the Republicans serving on the Judiciary Committee, considering where they stand on other types of lawsuits.

Most of the House Republicans on that committee have been openly hostile to victims of medical malpractice, and last year approved H.R. 5, a bill designed to impose national limits on awards in medmal suits and impose wage limits on the attorneys who try such cases in court. So House Republican Judiciary Committee members are simultaneously opposing lawsuits filed in cases of personal injury or death, but creating a private right of action when race or sex is used as an excuse for abortion. Moreover, the committee Republicans backing H.R. 3541 have also backed H.R. 1433, titled "The Private Property Rights Protection Act," which enables civil suits by property owners against abusive eminent domain actions by local governments. There's no logical basis for the inconsistent treatment between medmal lawsuits on one hand, and certain abortion or property rights cases on the other.

I'm not against either of the two bills creating new private rights of action. As a pro-life conservative, I'm all for new legal tools to limit abortion on demand. But let's be consistent, just as the Founding Fathers were, when it comes to the civil justice system. They protected open courtrooms for all causes and cases, and so should Congress. Medical malpractice victims, victims of forced abortions, and property owners are equal under the law and have an equally unalienable right to bring their cases before a local jury.

The history of the soft alliance between trial lawyers and pro-lifers has never been given the attention it deserves by pro-life Republicans. The Founding Fathers warned repeatedly against entrusting bureaucrats with decisions that belong in the hands of a local jury. Trial lawyers serve the pro-life cause by challenging FDA decisions to approve dangerous medical devices and drugs taken as birth control by women. History has shown the FDA is too often influenced by political forces and by the industry it seeks to regulate, and the FDA cannot always be trusted to keep unsafe drugs and medical devices off the market. When the FDA approves unsafe products, or allows dangerous products to stay on the market, lawsuits by injured patients are often the last line of defense to provide protection to innocent victims. Civil suits forced many of these dangerous drugs and devices off the market, while the FDA did nothing. Here are some examples.

The Dalkon Shield IUD was implanted in an estimated 2.5 million women from January 1971 through June 1974 before it was taken off the market, thanks to civil litigation brought by injured women. At the time, medical devices were not required to receive pre-market approval from the Food and Drug Administration. Approximately 200,000 women claimed they were injured by the device and filed lawsuits against the company. The Dalkon Shield IUD often became imbedded in the uterus, and the multifilament tail string on the device became a vehicle for bacteria. As a result, women wearing the shield were seven times more likely to develop pelvic infections than women using no contraceptives. There were over 200 documented cases of a rare, potentially lethal type of infected miscarriage called spontaneous septic abortion. Twenty women died of complications associated with the Dalkon Shield. The dangers of the Dalkon Shield were not revealed until the first device lawsuit went to trial in 1974, where the public found out that the IUD's manufacturer knew about the life-threatening risks of the device but withheld this information.

Meanwhile, thanks to aggressive marketing efforts, about 10 million women in the U.S. used the Copper-7 IUD between 1974 and 1986. By 1986, hundreds of lawsuits were filed claiming that the Copper-7 caused pelvic inflammatory diseases, ectopic pregnancies, perforated uteruses and sterility. As a result, the Copper-7 was taken off the market, solely because of the lawsuits brought against the manufacturers. But the FDA never withdrew its approval of the Copper-7.

RU-486 was never tested in uncontrolled trials or tested for use by women under 18, despite being approved for any age. By approving RU-486, the FDA also mandated a previously unapproved use of misprostol over the objections of its manufacturer Searle, who originally created misprostol to reduce the risk of ulcers. According to 9,300 pages of documents uncovered by Judicial Watch, standard procedural and scientific requirements were circumvented during the expedited FDA approval of RU-486 in 2000. A host of pro-life organizations, including the American Association of Pro-Life Obstetric Gynecologists and the Christian Medical Association, have opposed RU-486 from its testing period to today.

The Ortho Evra transdermal birth control patch was approved by the FDA in 2002 as a supposedly safe alternative to the birth control pill - this despite the FDA's own pre-approval findings that the patch led to three times as many non-fatal blood clots. This FDA finding was kept quiet as women switched over to the patch - by 2004, 800,000 women were on the patch. A 2005 FOIA request finally revealed that the FDA had received 16,000 different adverse reaction reports associated with the patch, including 17 deaths that appeared to be clot-related. The women who died included Kathleen Thoren, a 25-year-old mother of three; Sasha Webber, a 25-year-old mother of two; and Zakiya Kennedy, an 18-year-old Manhattan fashion student. Ortho Evra's manufacturer waited until 2006 to warn women that the patch would expose them to the possibility of blood clots. Worse still, FDA kept that information quiet in 2002 when it approved the patch. Lawsuits continue against the company.

Norplant was introduced in 1991, and women began noticing that Norplant's label inadequately warned about severe side effects like excessive menstrual bleeding, headaches, nausea, dizziness, and depression. In a complaint filed against Norplant's manufacturer Wyeth-Ayerst, women who used the system suffered significant weight gain, felt numbness and pain in their arms (where the silicone rods were implanted), and experienced excessive bleeding for two
weeks. Many of these women also experienced great difficulty exiting from the Norplant protocol - some women became scarred after having to undergo surgery under a general anesthetic to remove the implants. In 1999, Wyeth-Ayerst agreed to pay out at least $50 million to settle the claims of 36,000 women. The American Life League maintains a Norplant page on its website, explaining its qualities and the testing deficiencies.

Last year, the FDA approved the pill "Ella," a product of the French maker HRA Pharma, which reduces the chance of pregnancy up to five days after sex. The pro-life Family Research Council claims that Ella blocks progesterone receptor proteins, and thereby starves a developing baby of this needed protein, much like RU-486. FRC cites numerous studies in Europe that show "that Ella causes abortions in animals, including rats, rabbits, guinea pigs and macaques (similar to monkeys)."

And FRC says that "there is compelling reason to believe that it (Ella) will likely have similar side effects" as RU-486, such as "excessive bleeding and increase(d) vulnerability to infection." In other words, trial lawyers exercising the 7th Amendment right to a jury trial for civil suits may have to ride to the rescue of the women who will be harmed by Ella, just as they have with respect to other devices and drugs dangerous to women.

The Medicare Sustainable Growth Rate (SGR) is the method enacted in 1997 to control spending by Medicare on physician services, and ensure that the yearly increase in the expense per Medicare beneficiary does not exceed the growth in GDP. Every year, the Centers for Medicare & Medicaid Services and the Medicare Payment Advisory Commission advise Congress on the previous year's total expenditures and the needed adjustment in Medicare payments to doctors. For years, the calculation has resulted in a planned cut in payments, but Congress has repeatedly delayed the cuts. Congress and President Obama have delayed the implementation of the payment cuts several times, most recently until the end of February. On that date, it is estimated that the SGR will be a cut of at least 20% in payments. Physician groups, especially the American Medical Association, are lobbying for a permanent change to the SGR methodology, called the "doc fix" inside the Beltway, to prevent annual cuts.

I can understand the desire of the doctors' groups to rationalize the process and avoid painful SGR cuts, which could result in an actual reduction in medical services for those who most need them. But already we've seen political allies of the AMA recommend that Congress pay for the "doc fix" by crushing the constitutional rights of all Americans and instituting sweeping nationwide limits on medical malpractice and health care-related lawsuits. Numerous conservatives and Tea Party-side legal experts have condemned any such federal tort reform law as an unconstitutional infringement on states' and individual rights. That's reason alone to not pursue that option.

But there's another reason why Congress shouldn't try to pay for the "doc fix" with medmal limits: the CBO's estimates of revenues resulting from the institution of federal limits on medmal lawsuits are fatally flawed. The AMA and its allies continuously promote a CBO estimate, released during the ObamaCare debate, that medmal limits would save close to $60 billion over ten years. Here are the flaws in that estimate:

First, CBO not only has a lousy record of estimating ten-year budget deficits and projections of policy impacts, but it's missed often on just year-to-year projections. It's no wonder that House Majority Leader Eric Cantor accused the CBO of outright "budget gimmickry" in its calculations last year on the supposed "savings" that would result from enactment of the Affordable Care Act, or that Cantor and House Speaker John Boehner criticized CBO for predicting that repealing ObamaCare would cost $145 billion.

Second, CBO admitted in 2010 that it did not "consider the effect of tort reform on patient health and medical outcomes." Remarkably, the CBO determined that "many studies of malpractice costs do not examine health outcomes." In fact, implementing CBO's projection of "savings" could actually result in more deaths and injuries. CBO admitted in its estimate that limits on medmal lawsuits could "an additional 4,853 Americans killed every year by medical malpractice, or 48,250 Americans over the ten-year period CBO examines." And another 400,000 or more patients could be injured during the same 10 years. That's not a cost that CBO can estimate, but it's one we don't want to bear.

Third, the CBO can't estimate the impact that sweeping limits on medmal lawsuits would have on federal health care costs paid for by Medicare, Medicaid, and the Veterans Administration. If someone is brain-damaged, mutilated or rendered paraplegic as a result of medical negligence, but cannot obtain compensation from the culpable party through the tort system, he or she may be forced to turn to those programs for compensation. None of these increased Medicaid or VA hospital costs are considered in the CBO estimate.

Whenever there is a successful medical malpractice lawsuit involving an elderly or poor person, Medicare and Medicaid can claim either an interest in whatever the patient recovers, so the victim reimburses the government for some of the health care expenditures. Without the lawsuit, Medicare and Medicaid will lose funds that the government would otherwise be able to recoup. And none of these lost funds are considered by the CBO. In fact, Congressmen and Senators of both parties are sponsoring legislation to improve that process and return even more revenue to the Treasury, but CBO still can't count that money properly.

Fourth, CBO guesstimated that imposing federal lawsuit limits would result in a reduction in a drop in liability insurance premiums, but provided no raw data, explanations, or sources to back up its estimate. Numerous states have already imposed caps on medmal lawsuit damages, with no impact on personal health insurance premiums. In fact, a study by the Commonwealth Fund shows health insurance premiums rising rapidly in California since 2003, despite the state's very tough limits on awards in health care-related lawsuits. CBO makes the assumption that Uncle Sam can wave a wand and magically force health insurance premiums to drop. How's that one working out in California?

In conclusion: Anyone betting on federal lawsuit limits to pay for the "doc fix" is wasting their time. Not only is it unconstitutional, but it won't raise real money and solve our budget problems. Congress should reject any proposal to impose federal limits on health care-related lawsuits, and instead spend its valuable time designing a constitutional and mathematically reliable "doc fix" solution.

UPDATE: The committee approved the special language assisting the families by a unanimous voice vote on February 2. The language was changed last night to limit its application to Iran, and not to the other designated state sponsors, in order to more easily enact and implement the change in banking law.

In 1983, an Iranian suicide agent exploded a massive truck bomb, destroying a U.S military barracks in Beirut, Lebanon. The blast killed 241 American Marines, soldiers and sailors and injured hundreds more. The mass murder was a brutal, unprovoked attack on American servicemen. It also was a terrorist assault on the United States by the most active sponsor of State terrorism in the world, the Islamic Republic of Iran.

Over 1000 family members of the victims exercised their constitutional right to hold Iran accountable and sued in U.S. courts for that vicious attack. In 2007, the Chief Judge of the United States District Court for the District of Columbia found Iran liable for the Beirut bombing. He ordered it to pay $2.65 billion to the surviving victims and families. The families' attorneys identified an account of Iranian funds, laundered through Europe into the U.S. and stashed in an account at a bank in New York City, and the judge froze that account in order to satisfy the judgment.

But central banks of countries are granted immunity from attachment, even if the central bank is of a state sponsor of terrorism. The Iranian central bank has already notified a federal court in NYC of its intent to file a motion to lift the attachment. Absent special legislation, the order freezing the account could be lifted, and Iran could regain the funds in the account for use in its nuclear proliferation and terrorism activities.

So the families have turned to Congress to ask for legislation that would
clarify that state central banks of terrorist states (Iran, Cuba, Sudan and North Korea) forfeit the immunity when their assets are surreptitiously laundered into the United States through money laundering jurisdictions. The bill language would affect only the central banks of the four state sponsors of terrorism, when they are caught surreptitiously laundering assets through the U.S. financial system.

On Thursday, the Senate Banking Committee will act on S. 1048, the Senate version of a bill designed to impose new sanctions on Iran. The House approved their version of this bill in December. The families are asking the Banking Committee to add the special language described above to the bill prior to action by the full Senate. I have been working with the families as a paid consultant as they seek justice through the enactment of this special legislation.

Unfortunately, the Obama Administration is opposed to the families' effort, apparently concerned that other countries might refuse to invest their funds in the U.S. or treat the Federal Reserve similarly. The families responded in a press release on Monday. Spokesperson Lynn Derbyshire, whose brother was killed in the attacks, said, "Everyone agrees that the most effective way to hold Iran accountable, short of war, is to deliver a blow to its government finances. The Obama Administration has been encouraging other nations to impose economic sanctions on Iran. Incredibly, however, it is opposing a clear and effective way to take $2.65 billion out of the Iranian financial system and directly punish Iran for a specific act of terrorism Iran would like America to forget."

The families deserve some measure of justice and the Congress must act to prevent Iran from accessing the $2+ billion in frozen funds. Hopefully the Senate Banking Committee will ignore the Obama Administration and add the special language to the Iran sanctions bill.

There's a great article in The Washingtonian magazine today titled, "Minor Mistakes, Deadly Results," about the thousands of deadly medical errors occurring annually and the measures taken by Washington-are hospitals to prevent them. Here's the beginning of the article, with a story that illustrates the cases and should break your heart:

When Frances Barnes had a stroke in August 2008, she was taken by ambulance to Howard University Hospital. The 80-year-old grandmother was there for about two weeks when she began complaining about pain in her legs. Her daughter Althea Hart pulled back her mother's blankets and noticed a strange odor. Hart thought the smell was coming from the compression stockings wrapped around Barnes's legs to help with circulation, so she took them off. She found that her mother's left foot had turned black.

Hospital staff had failed to follow physician orders, which required taking off the compression stockings after each shift for at least 30 minutes, according to a DC Department of Health investigation.

"We called a nurse right away, and they tried to heal her infection," says Patricia Moss, another of Barnes's daughters. "But they couldn't."

Barnes's family moved her to Providence Hospital in Northeast DC, where she had to have her lower leg amputated. Barnes moved to a nursing home, where she continued to get infections; she died at Providence in February 2009, five months after her foot turned black. Barnes left behind eight children, 15 grandchildren, and 16 great-grandchildren.

The facts are startling. Medical malpractice appears to be worsening. "In 2010, the federal government estimated that faulty medical care contributed to the death of about 15,000 Medicare patients per month. By these measures, faulty hospital care is one of the leading causes of death, behind heart disease and cancer." And surgery on the wrong location in body happens "as often as 40 times a week in US hospitals and clinics," according to the Joint Commission, which accredits American hospitals. All this despite the use of a universal protocol in accredited hospitals as a way to eliminate wrong-site surgeries.

On March 23 of last year, I wrote about surveys of operating room and critical care nurses that revealed shocking instances of medical malpractice. For instance, 85% of 2,383 nurses surveyed said they'd been in a situation where measures such as checklists and protocols warned them of a problem that would have otherwise harmed a patient. But 58% of the nurses said they'd been in situations where it was either unsafe to speak up or they were unable to get others to listen.

Tort reformers screaming for an unconstitutional federal takeover of state courtrooms and tort law should think a little more logically. The most important and successful way to institute valuable reforms in the medmal area is to institute cost-effective prevention mechanisms. State legislatures and Medicare should concentrate on requiring such protocols, not trying to limit the damage on the back end through limits on medical malpractice lawsuits. As the libertarian Cato Institute demonstrated last year, caps on medmal awards only hurt consumers, they don't reduce deadly medical errors.

Fix the problem at its source and you'll see real reductions in the number of medical malpractice lawsuits.