The other problem that we have is the — I don’t want to say it is a problem — but the Tenth Amendment. If we do something at the federal level that changes law at the courthouse, at the state level, that is problematic. . . .
I do like the concept, and, uh, this is something I’ve talked about for a long time. Medicare is a federal system. They’ve already violated the Tenth Amendment so many times that everybody’s immune to it. So if you have, in the Medicare system, a separate liability system where doctors are covered under the Federal Tort Claims Act like they are in federally qualified health centers, you could remove that balance item off the doctor’s balance sheets.
To decode this a bit, tort reform has long been a major goal of conservative policy makers who claim, despite significant evidence to the contrary, that it would decrease health costs for ordinary Americans. Unfortunately for tort reformers, many of their conservative allies also believe (falsely) that federal tort reform violates the Tenth Amendment of the Constitution.
Burgess suggests squaring this circle by somehow laundering tort reform through Medicare — such as by having one set of medical malpractice laws for care paid for by Medicare and another, entirely separate system for other care. In Burgess’ words, this would avoid the Tenth Amendment problem conservatives imagine because Medicare “already violated the Tenth Amendment so many times that everybody’s immune to it.”
So there you have it. Burgess seems to think Medicare, or at least much of Medicare, is unconstitutional. But that’s okay, because Medicare can still be used to achieve unconstitutional ends, so long as those ends are conservative. The Constitution is the Supreme Law Of The Land — except when conservatives want it to say something else.