Under which enumerated power may Congress regulate state tort law?

Malpractice award limits pass in House

In a famous case, the Supreme Court said:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=304&invol=64 (Emphasis added)

Previous GQ thread about tort reform and Congressional regulation of tort reform law

Isn’t this another area where “[s]tates historically have been sovereign”? US v. Lopez

Interstate commerce? If that can regulate people growing marihuana for their own medical purposes, it’s not hard to bring the health industry and/or the insurance industry within interstate commerce.

  1. Those who think that *Lopez * and *Morrison * stand for anything anymore seem to think they stand for the proposition that Congress can’t regulate areas of historical state sovereignty unless the relationship to interstate commerce is clear (or something similar to that).
  2. If Congress wants to regulate the insurance industry, it really ought to start by getting rid of this dinosaur:


You are worried about “enumerated powers”? C’mon, Congress hasn’t worried about those pesky things for decades.

Basically Congress enacts whatever laws it sees fit, and it it’s too egregious the Supreme Court may strike them down for exceeding Congressional authority. Congress doesn’t even bother to figure out if what it’s doing is actually constitutional.

I agree with that. My question isn’t “why is Congress doing this when it seems unconstitutional?” My question is “how can this legislation be defended as constitutional if it passes?”

Of course, it is a matter for the voters to decide why we are paying legislators to spend their time passing laws:

  1. That nobody cares about; and
  2. That are pretty clearly unconsitutional

Don’t we have bigger fish to fry?

It seems the voters have spoken. I would say that probably 90% of the legislation passed by Congress in the past fifty to sixty years could not really be defended on constitutional grounds. However, there is no groundswell of opposition against such legislation. In fact, it seems that most people really like unconstitutional legislation. They are enjoying the benefits of unconstitutional government programs and like it that certain people are prosecuted with unconstitutional federal laws.

So I’m not sure why you’re simply picking on this piece of legislation instead of thousands of other things that fail to meet constitutional muster.

Laws don’t pass a “constitutionality check” during the legislative process. There are many laws which would probably not hold up under scrutiny(DOMA springs to mind) but are the law of the land because they have not yet been challenged. Basically the founders believed Congress would restrain themselves, or the Executive would act as a check on them, from making laws which over reach their ennumerated powers.


So we should just say, “Congress was originally supposed to police itself, but it decided not to. Ah well, I guess, I’ll forget about the Constitution”?

I am not singling this law out at all. It just happens to be in the news, so I thought I would bring it up.

Not at all. Anyone damaged by a law made by Congress can challenge their treatment at the hands of the government and argue about their rights being infringed. But the system is not proactive, it is entirely reactive. Laws like this or like DOMA which make it through Congress and the President’s desk are the law until someone rules that another, higher, law conflicts with them and throws them out.

I’ve argued that the legislative branch is broken for a long time. The passing of laws like this and the million-dollar bus stop in Alaska support my arguement. Acknowledging the system as reactive instead of proactive(meaning Congress doesn’t have to justify a law as following from its enumerated powers to pass it) doesn’t mean I think that’s a good thing. I’ve taken the pragmatic stand of “representative reinforcement” which is a legal theory which says the Judiciary has to kick the Legislature and Executive in the ass on occasion when they do stupid shit like this.


So let’s get to jam today, then: I repeat my question. Do you think that a statute imposing limits on state jury verdicts within the enumerated powers of Congress?


Me neither.