Sarah Kliff previews the GOP’s big box of ideas for how to force Democrats to vote against their own health care law come January. Last week, House Republicans wanted to attach repeal to next month’s doc fix, now they’re considering taking a page from Sen. Mike Johanns’ (R-NE) original 1099 repeal proposal and using prevention dollars to pay for the impending reimbursement cuts:

Republican Senate aides familiar with the issue told POLITICO they are seriously looking at the new law’s $15 billion public health commitment to finance a one-year doc fix in the next session of Congress. [...]

One aide said health reform’s preventive health spending is one of the “top three” offsets in the law that congressional Republican staffers are eyeing, with the idea that a few moderate Democrats facing tough races in 2012 could eventually be brought on board.

As for which part of the health reform law to pull funds from, Republicans have long derided the multibillion Prevention and Public Health Fund as wasteful spending, scoffing at its investment in bike paths and farmers’ markets. One Republican Senate aide quipped that it was a “slush fund for jungle gyms.”

The fund, which began this year with $500 million, will grow to a $2 billion per year allocation by 2015. Totaling $15 billion over the next 10 years, the fund would be nearly enough to offset an entire, yearlong doc fix.

This is fairly galling, not only because a long-term investment in prevention is exactly the kind of thing that might save dollars over the long term, but also because Republicans themselves encourage Americans to take personal responsibility for their health and catch diseases before they turn into costly, chronic conditions. The “slush” fund aspect they’re referring to — as far as I can tell — is a recent HHS decision to use $250 million to expand the primary work force — the very kind of investment that would help build the infrastructure and make sure there were people to help with screenings, immunizations and other needs.

And this, is something Republicans presumably support. In July, Sen. Jon Kyl (R-AZ) tried to take credit for the prevention funds in the Affordable Care Act, something Republicans had long advocated for:

- Sen. Chuck Grassley (R-IA) said the law’s emphasis on preventive care is good “because it costs less to keep people well than to treat them when they’re sick.” [10/18/2010]

- Sen. Mitch McConnell (R-KY): “Congress should be able to work together on our practical ideas that the American people support, such as reforming our medical liability laws to discourage junk lawsuits…encouraging wellness and prevention programs that have proved to be effective in cutting costs and improving care.” [8/26/2010]

- Sen. Saxby Chambliss (R-GA): “I am an original cosponsor of S. 1099, the “Patients’ Choice Act,” …. The legislation would make health care coverage accessible and affordable for all Americans through private insurance coverage, while also promoting prevention and wellness which can improve lives and lower long-term medical costs. [7/19/2009]

Kliff reports that “the idea of tying the doc fix to a partial health reform repeal has legs because it comes with a clear rhetorical message: Congress should not start creating new entitlements without the necessary funding to uphold existing ones.” I would argue that that the opposite argument can be even more persuasive — pulling money out of prevention should be dead in the water since it’s one of the handful of ideas Republicans presented as consensus areas when they urged Democrats to scrap the big bill and rally around just a few popular policies.

Sen. Roger Wicker (R-MS) is the latest right-wing lawmaker to jump on the tenther bandwagon, with a bill that empowers state officials to file frivolous challenges to new federal regulations:

Sen. Roger Wicker (R-Miss.) told The Hill that his states’-rights bill is in large part a reaction to Democrats’ healthcare reform law, which Republicans claim would create 159 “boards, commissions, bureaus, programs and offices of the federal government.” That figure may be open to debate, but states have certainly raised concerns with the law, with 43 so far joining in legal challenges or taking other action to prevent certain provisions from taking effect. [...]

The legislation, called the 10th Amendment Regulatory Reform Act, mirrors a bill introduced by Rep. Tom Cole (R-Okla.) on March 25, two days after the president signed healthcare reform into law. It would allow designated state officials to file a legal brief challenging the constitutionality of proposed regulations during the time when they’re open for comment.

The head of the federal agency whose regulation is challenged would then have 30 days to certify that the regulation doesn’t violate the 10th Amendment. That certification, and a link to the state’s legal brief, would have to be displayed prominently on the agency’s primary webpage.

To be clear, this bill is nothing more than a solution in search of a problem.  There is no evidence whatsoever that there is an epidemic of new regulations violating the Tenth Amendment or any other provision of the Constitution — indeed, Supreme Court decisions declaring federal actions unconstitutional are exceedingly rare. There is however, a very real epidemic of conservatives proclaiming that everything from the Affordable Care Act to Social Security to Medicare to the minimum wage violates the Tenth Amendment. And while these tenther claims have no basis in the Constitution itself, they have no lack of advocates willing to file frivolous litigation pretending that they do.

At its heart, Wicker’s bill is an enormous giveaway to the Ken Cuccinellis of the world, empowering them to not only file frivolous litigation, but also to throw sand in the gears of the already lengthy federal rulemaking process.  Under Wicker’s proposal, any governor, lt. governor, state attorney general or state legislative leader can file a legal brief challenging a new regulation under the Tenth Amendment. The agency wishing to promulgate the new regulation must then “certify in writing that…such rulemaking does not violate the 10th article of amendment to the Constitution and include in that certification a full and complete written statement of the legal reasoning supporting that opinion.”

In other words, Wicker’s bill would force federal officials to devote scarce federal resources to providing written rebuttals to even the most frivolous tenther claims — wasting millions of federal dollars and gumming up the regulatory process. Indeed, it’s likely that these wasteful delays are the whole point of this proposal. Senate conservatives have manipulated the Senate’s rules to delay hundreds of bills and nominations into oblivion, and Wicker’s proposal would do little more than transform the still-functioning executive branch into something more like the broken Senate.