Last week, the Senate GOP cobbled together a list of longstanding Republican priorities — such as repealing the Affordable Care Act and amending the Constitution to lock Tea Party fiscal policy in place permanently — called it a “jobs” bill and hoped that this hodgepodge of old ideas would distract from President Obama’s popular jobs plan. Interestingly, this grab bag of old right-wing ideas includes a tort reform bill called the “Medical Care Access Protection Act,” which imposes Texas-style damages caps on medical malpractice suits. A handful of tenther lawmakers opposed this bill because it violates their overarching principle that nearly everything the federal government does violates the 10th Amendment. By including this proposal in its high profile attempt to take attention from Obama’s jobs plan, the Senate GOP sends a pretty clear message that they don’t actually care about tentherism — they only pretend to care in order to use the 10th Amendment as a weapon against President Obama.
It’s hardly shocking to discover that Senate Republicans view the Constitution as nothing more than a ball of clay that can be molded into whatever shape they want it to take, but it’s worth noting just how expansively these GOP lawmakers view their own constitutional authority. Far from accepting the tenther view that nearly everything is unconstitutional, the Medical Care Access Protection Act endorses a theory of federal power that is more expansive than that taken by any the Supreme Court:
(2) EFFECT ON INTERSTATE COMMERCE- Congress finds that the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce by contributing to the high costs of health care and premiums for health care liability insurance purchased by health care system providers.
The reason for this segment of the bill is to invoke Congress’ power to “regulate commerce…among the several states” in order to justify the bill under the Constitution. The problem with this justification, however, is that the Supreme Court unanimously rejected the view that Congress may regulate any matter that simply “affects” commerce. In United States v. Lopez the majority said Congress can regulate matters that have a “substantial” effect on interstate commerce, and the dissenters said that Congress can regulate matters that have a “significant” effect on interstate commerce. The Senate GOP, by contrast, seems to believe it can do anything at all so long its actions have some miniscule impact on the nation’s economy.
This view is obviously not compatible with the view Senate Republicans took in the amicus brief they filed in the Affordable Care Act litigation, where the overwhelming majority of the GOP caucus endorsed the view that a comprehensive regulation of the entire national health care market is somehow not a constitutional regulation of interstate commerce. Indeed, the Senate GOP’s own lawyer — the author of their brief attacking health reform — has a lengthy post at the National Review slamming their decision to prefer tort reform to tentherism.
Ultimately, however, expecting these lawmakers to take a principled stance on the Constitution is a fool’s errand. When they want to legislate, they believe the Constitution gives them all the power they need. But when President Obama wants to pass new laws, they’re happy to embrace a fringe reading of the Constitution in order to sabotage the president’s agenda.