In it, but not of it. TPM DC

Tea Party Questions Constitutionality Of GOP Bill Repealing Medicare Reform Provision

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Newscom / Bill Clark

Judson Phillips, the leader of Tea Party Nation, fired off an email to supporters Monday lamenting the GOP's pay-for, claiming House leaders need a "refresher course" on the 10th Amendment. "The IPAB repeal ought to be fairly simple. Even some Democrats are on board with it," he wrote. "The Republican leadership decided to play stupid political tricks and attach the Medical Malpractice bill to the IPAB repeal bill."

The measure in question caps the amount courts can award in non-economic damages for any given medical malpractice lawsuit at $250,000. Tea partiers don't necessarily have an issue with the concept, but they strongly believe it's an issue that states, not the federal government, should decide. And they cite the 10th Amendment as evidence that malpractice damage caps imposed by Congress infringe on states' rights.

"The 10th Amendment does not say that the powers granted to the states can be usurped simply because the right party is in power," Phillips wrote. "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 constitutional concern was shared by the conservative Heritage Foundation, which declared in a Monday evening blog post that the House GOP bill is "misguided" because "the law governing medical malpractice claims is a state issue, not a federal issue." The post argued that "Congress has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims."

Jen Talaber, a spokeswoman for Gingrey, told TPM that the bill addresses 10th Amendment concerns by letting state laws capping malpractice award supercede the federal limit, regardless of their level. "Detractors of lawsuit abuse reform, namely Democrats and the trial lawyer lobby, have attempted to turn this into a 10th Amendment issue," she said. "It is not."

The bill, Talaber said, would "ensure that current or future state law addressing issues such as non-economic damages would supersede the federal law. Further, juries in different states may still award as much as they see fit to compensate a patient for economic damages."

That hasn't appeased all conservatives. Reps. Louie Gohmert (R-TX) and Ted Poe (R-TX) objected to the legislation in the Judiciary Committee last year, forcing top Republicans to shelve it indefinitely, after they twisted arms to clear the bill through the panel. Virginia's conservative Attorney General Ken Cuccinelli was so troubled by the measure, he vowed last year to challenge it in court if Republicans managed to turn it into law.

It's not clear the conservative objections will carry enough weight with the GOP to endanger the bill. Republicans see IPAB as a long-term threat to their years-long goal of turning Medicare into a private insurance system. But they may well lose their bipartisan cover.

Speaker John Boehner's office previewed the vote this way: "The House will act this week to repeal another part of ObamaCare: IPAB, which empowers a board of unelected bureaucrats to deny care and raise costs. This will be the 26th vote the House will take to repeal all or part of ObamaCare, which is a big part of the regulatory onslaught coming out of Washington, DC."

The question now is whether the anti-"Obamacare" message will be enough to completely unify the GOP. It may not pass muster with conservative purists who, as Phillips put it in his email, view the 10th Amendment as "one of the best defenses we have against tyranny."