Trial Lawyers, Health Care, and Conservative Schizophrenia


Yesterday I was listening to a conservative pundit rant against the Obama administration’s health care ambitions, what he called a return to “big government”, and then, out of the blue, he whined about trial lawyers. Later in the day, I read about how the conservative, Republican nominated Supreme Court justices dissented, arguing against state rights; in other words in favor of federal preemption and federal regulation. Sounds like a major bout of conservative schizophrenia to me.

Now I have already gone into painfully boring detail about how the Republicans are in fact interventionists; they just like intervening in favor of certain corporations (a.k.a national corporatism) instead of in favor of citizens, while incurring huge national debt in the process. If you like calling the Democrats “tax and spend liberals” then the label “borrow and spend” definitely fits the Republicans. But for the sake of argument, let’s pretend for a minute that conservatives and Republicans are actually against government intervention. Then how can they justify the government stepping in and limiting tort damages? Of course, the trial lawyers lobby heavily in favor of the Democrats, so we all know why the democrats are against tort reform, but if conservatives believe in unfettered, unregulated markets, shouldn’t the consumers have a right, unfettered by the government, to retaliate when injured by the malfeasance of those companies?

Is it a coincidence that the conservative members of the Supreme Court who believe in deferring to the will of the voter as opposed to creating new law from the bench argued (i) against the decision of a jury (the jury being representative of public will and a check on the judicial branch) and (ii) in favor of federal preemption (giving the federal government ultimate legislative authority over the states). In his dissent, Justice Alito complained that the majority’s ruling, “holds that a state tort jury, rather than the Food and Drug Administration, is ultimately responsible for regulating warning labels for prescription drugs.”

In other words, Alito thinks that the court should have intervened in favor of government regulation so that a federal agency, the FDA, could trump state law and the will of a popular jury comprised of voters. I am not saying that Alito is right or wrong, I am simply saying that his dissent is contrary to the entire Republican platform and rhetoric.

But let’s take this logic one step further. If Republicans are against the government intervening to offer universal health care, want to limit the ability of citizens to sue and government to regulate, and believe that the federal law should preempt state laws on these matter, then essentially the Republicans are asking the government to intervene in favor of the drug companies and HMOs, and therefore are abandoning both their free market and states’ rights creeds. So if Republicans are so keen on the government regulating citizens’ personal lives, spending astronomic amounts on defense, and favoring select industries through deregulating, intervening, and tax incentives, when have the Republicans ever actually practiced less government?


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