Recent talks of another COVID relief bill are surely welcome news for many Americans who’ve had their lives upended by the pandemic and its many economic consequences (many of which have been unfairly and arbitrarily inflicted upon them by government bureaucrats). Yet, instead of ensuring that much of this aid goes to individuals and small businesses, certain Senate Republicans are tying their support for this aid package to a provision that has been dubbed the “COVID-19 liability shield”—a provision that, as proposed by Senator Mitch McConnell, would shield businesses from COVID-related lawsuits and vest jurisdiction for these lawsuits in the federal courts.

I’m a conservative, a lawyer, and a proud member of the Federalist Society to boot. The GOP-proposed Covid-19 liability shield, even if it’s severely watered down before the larger bill’s passage (and even that appears unlikely), makes me embarrassed to be all of these things, and if it’s enacted, it will be yet another case of elitist crony capitalism hurting ordinary Americans. In short, there’s nothing conservative about it.

Before I get into why conservatives shouldn’t support the COVID-19 liability shield on principle, there are several practical reasons to think that adding a blanket immunity provision to an aid package is a bad idea, none of which are overtly ideological.

For one, perverse incentives abound when immunity is granted to anyone, whether the government or the private sector. You don’t have to be a cynic (or really all that bright) to think that giving people a free pass to act carelessly might in fact cause them to act carelessly.

Then there’s the fact that Americans have long endured far too much omnibus legislation at the federal level, and people of all political stripes can reasonably question whether this practice should continue, particularly in the midst of emergency lawmaking. Is hamstringing a necessary pandemic-related relief bill to corporate immunity really what our legislators should be doing right now to help ordinary Americans (who, by the way, are hurting in large part due to government-imposed lockdowns)?

Finally, it is becoming clear that the pandemic has largely wreaked havoc on small businesses, not large corporations, in large part because the government has consistently bailed out one of these groups and not the other. I don’t think it’s particularly controversial to state how vital small businesses are to the American economy and, even more boldly, to the very idea of America herself.

Now, with the less polemical issues out of the way, on to the fun stuff. Conservatives (and many classical liberals) have traditionally hung their hats on the ideas of preserving individual liberty vis-à-vis the state and powerful interests, the separation of powers (the belief that each branch of government has a defined set of powers and capabilities), and federalism (the belief that most decisions are better left to state and local governments). And at our best, we conservatives also tend to believe in personal accountability. The current GOP-proposed liability shield confoundingly defies all of these conservative ideals.

To start, the liability shield is arguably unconstitutional, as it infringes on the well-established right to pursue redress in the courts for violations of fundamental rights. The Seventh Amendment to the United States Constitution (for which there are many state corollaries) guarantees an individual right to civil jury trials. Although the right to a civil jury trial has not itself been declared “fundamental,” jury trials are vital to enforcing our fundamental rights to life, liberty, and property when the government or other powerful interests attempt to deprive us of them. Conservatives should be wary of any legislative attempt to erode constitutional liberties, particularly one that is preeminently featured in the Bill of Rights and serves as a primary mechanism for enforcing fundamental rights.

The COVID liability shield violates longstanding principles of separation of powers by improperly invading the powers of the judicial branch. Tort law—the body of law addressing civil wrongs that would largely apply to most COVID-related lawsuits—has long been within the purview of the courts, not the legislature. With its roots in the English common law, the law of torts in this country has evolved almost exclusively through hundreds of years of judicial rulemaking. This is for good reason: courts, not legislators, are best equipped to develop and maintain the evolving rules that they have historically had the exclusive power to create.

Simply put, the current version of the liability shield, which would likely preempt the common law for the foreseeable future, is an impermissible intrusion into the province and powers of the judicial branch. Federal legislators who support this liability shield would exchange centuries of judicially developed case law for haphazardly drafted legislation. Such an exchange is a clear violation of the separation of powers that conservatives have long lauded as necessary to curb excessive executive and legislative power.

Beyond that, the liability shield violates longstanding principles of federalism. I just discussed that tort law has developed mostly at the hands of judges, but those judges have almost exclusively been state court judges. In fact, federal courts are not even constitutionally permitted to create their own common law of torts. It follows that the federal legislators can’t—and shouldn’t—either. Yet the COVID-19 liability shield upends this longstanding federalist arrangement by vesting jurisdiction for personal injuries and medical liability related to the pandemic exclusively in the federal courts. The real reason for this jurisdictional provision is obvious: federal courts have historically been less friendly to tort plaintiffs than their state counterparts. Whatever the reason, though, the jurisdictional provision violates principles of federalism by stripping state courts of their power to adjudicate claims between their citizens in an area that has historically been almost exclusively theirs to govern.

At its core, the concept of personal accountability posits that the government should entrust its citizenry act virtuously and within the confines of the law, but that when citizens don’t live up to this expectation, there are consequences. That is, they must answer for their wrongs, and the state must enact justice, whether penal or monetary. On the civil side of things, this is where tort law comes into play: when someone fails to act reasonably and consequently injures another person, a debt is incurred and must be paid. By eliminating almost all claims for ordinary negligence, however, the liability shield incentivizes businesses and health care providers to engage in haphazard conduct that will endanger citizens and leave the vast majority of consumers—ordinary Americans—without access to meaningful justice. By so doing, it spits in the face personal accountability.

It would be one thing if the liability shield were actually necessary to stimulate the economy (I would still oppose it coming from the federal government, and it would likely still be an affront to individual liberty in some fashion). But that argument isn’t persuasive in the slightest. For one, lawsuits overall are actually down in 2020, which suggests that a flood of COVID-related lawsuits is not going to come, whether or not immunity is granted.

Even in normal times, though, it’s not as if (as some Republicans like to argue when the subject of tort reform comes up) businesses are sympathetic victims, the frequent subjects of frivolous lawsuits by greedy ambulance chasers. While there are surely some wrongly targeted businesses and some overzealous plaintiffs in the grand scheme of things, small business owners—for whom frivolous litigation would seemingly present the largest threat—rate litigation at the bottom of their list of worries. Republicans, particularly self-professed conservatives, who continue to beat this drum risk placing narrative over truth.

At the end of the day, we conservatives have to ask ourselves: Who is this liability shield really for? It’s unclear why a pandemic justifies a departure from our collective obligation to act reasonably; certainly, ordinary citizens can’t disregard speed limits or stop signs because of COVID-19. Why should Amazon and Nike and other crony capitalists (many of whom aren’t particularly friendly to conservatives) receive special treatment?

If conservative legislators ask themselves these questions, I think most of them will find that this liability shield defies much of what we claim to believe in.

Ben Hachten is a trial lawyer and a member of the Federalist Society, the Catholic Bar Association, and several other Catholic organizations.