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Tenth Amendment Zealots Block GOP's Medical Malpractice Reform

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A GOP leadership aide wouldn't comment on the split, but affirmed that malpractice reform is important policy that House Republicans included in their 2010 Pledge to America. No tort reform vote has been scheduled yet, but the aide expects it to happen this year, perhaps more than once and potentially as a part of larger bills.

The Senate has long been an uphill climb -- Democrats have a reputation for being in the pockets of trial lawyers, but the issue also went nowhere in a Republican-controlled Senate last decade despite a push from President Bush. But doctors hoped it would breeze through the 112th House of Representatives, which would at least inject some new momentum into the cause and perhaps pressure President Obama to warm up to it.

The House GOP's H.R. 5 medical malpractice reform bill, introduced by Rep. Phil Gingrey (R-GA), was advanced in 2011 soon after they took over the chamber. It sailed through the Energy & Commerce Committee but hit some turbulence during the Judiciary markup in February: namely, Texas Republican Reps. Ted Poe and Louie Gohmert decried it as unconstitutional.

Their gripes were not about the caps themselves, but about Congress's authority to impose them on states -- the same reason Republicans say the health care reform law is unconstitutional.

"I got problems with that," said Poe. "I think it's a violation of the Tenth Amendment."

"The question is: does the federal government have the authority under the Commerce Clause to override state law on liability caps?" Poe explained, according to Politico. "I believe that each individual state should allow the people of that state to decide - not the federal government."

Gohmert added that he's "reticent to support Congress imposing its will on the states by dictating new state law in their own state courts."

One week later, Republicans muscled the bill through the panel by a narrow 18-15 vote -- and then indefinitely shelved it.

The headache has since persisted even though the sponsors of the bill, conscious of the 10th Amendment concerns, included a provision that allows state-approved limits, whatever the amount, to supersede the $250,000 cap in H.R. 5. Still, the standard bearers of the states-rights mantle, in or out of Congress, have refused to bend.

Ken Cuccinelli, Attorney General of Virginia, took to the Washington Post last October to decry the GOP's tort reform bill as a violation of states rights -- a "one-size-fits-all plan imposed unconstitutionally by the federal government." He even threatened to challenge it in court if it becomes law, no matter who's president, just as he did with the Affordable Care Act.

"I believe that Republicans need to be the guardians of limited government, federalism and the Constitution, not just because it is the right thing to do but also because if they do not play that role, no one else will," Cuccinelli wrote. "This legislation expands federal power, tramples the states and violates the Constitution."

Cuccinelli is far from alone -- missives from the right against federal tort reform have also been fired by Georgetown legal expert and Affordable Care Act opponent Randy Barnet, as well as Cato scholars Michael Krauss and Robert Levy.

Last fall, Senate Republicans on the small business committee, arguing for federal tort reform in a letter to the Super Committee, sought to placate the 10th Amendment concerns -- a tacit admission of the traction they had gained.

Gingrey's office declined to comment for this article -- but one top Democrat was willing to.

"I don't know what the Republicans will decide to do, but it seems like they have a huge split in their own ranks, on infringing on what has traditionally been a states' rights issue," Rep. Henry Waxman (D-CA) told TPM. If Republicans do wind up passing the bill, he taunted, it would show that "they're for states' rights only when it suits their ideological purposes."

About The Author

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Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.