At a panel during last week’s Republican National Convention, Rep. Michael Burgess (R-TX) strongly suggested that he believes Medicare is unconstitutional — before going on to say that its constitutionality doesn’t matter so long as it is used to achieve conservative ends. Burgess’ comment arose during a discussion of whether the Constitution permits the federal government to enact broad tort reform legislation:

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.

Watch it:

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.

In 2003, Texas voters approved Proposition 12, tort reform which capped medical malpractice payouts and made it more difficult for patients to sue hospitals. Republican politicians, led by Gov. Rick Perry (R), claimed that doctors were providing less services to patients because they feared getting sued. Republicans, joined by a “Yes on 12” campaign funded by the health insurance industry, promised that the amendment would lower health care costs and bring an influx of doctors to the state. Since 2003, Republicans nationwide have touted Texas as a model for tort reform.

Now, a group of researchers studying Texas Medicare spending have found no decrease in doctors’ fees for senior citizens between 2002 and 2009. Medicare payments to doctors rose 1 to 2 percent faster than the rest of the country, Northwestern professor Bernard Black, a researcher on the study, said.

In urban and high population counties, the study’s authors expected to see lower health care costs stemming from a reduction in medical tests doctors previously used to protect themselves from lawsuits. However, the researchers found no decrease in costs and a slight increase in medical tests performed. “This is not a result we expected,” said Bernard Black, a co-author and a professor at Northwestern University’s Law School and Kellogg School of Management.

During his short-lived presidential run, Rick Perry claimed that Prop 12 brought 21,000 doctors to Texas; that claim was ranked “False” by PolitiFact. Other advocates, like the industry-funded Texas Alliance for Patient Access behind the “Yes on 12” campaign, have claimed that tort reform brought 5,000 doctors to Texas. An unpublished study by the same group of researchers rejects that claim, which they say ignores “doctors who left the state or retired, creating vacancies for their jobs; physicians who don’t treat patients but do research or administrative work; and physician growth compared with other states.” When these factors are taken into account, the study found, doctor growth has actually declined slightly since 2003.

– Ben Sherman

Even before President Obama took office, the Affordable Care Act’s opponents touted tort reform as a central prong of their health care policy. Texas Gov. Rick Perry even claims that Texas added 23,000 new doctors thanks to a tort reform law he signed in 2003. A new academic study shows that the data simply does not back up this claim, however. According to the study, there is no evidence that tort reform attracted more doctors to Texas:

The bottom line: Our original findings remain correct. There is no evidence that the number of physicians per capita practicing in Texas is larger than it would have been without tort reform. Any effect of tort reform is too small for us to measure, against the background of other, larger forces affecting physician supply, both in Texas and nationally. This ‘non-result’ is broadly consistent with other studies, most of which find that state-level tort reform has a modest impact on physician supply. It also offers a counterpoint to these studies, by demonstrating that the small average effects found in other studies will not reliably appear in any given state, even one which undergoes especially dramatic reform.

Indeed, the paper finds that Texans’ access to primary care physicians actually declined slightly after Rick Perry’s tort reform became law, and that the number of primary care physicians per capita in Texas is significantly lower than in the United States as a whole:

Earlier this month, Senate Republicans cobbled together many of their longstanding objectives, and called it a “jobs” bill to try to draw attention away from President Obama’s popular American Jobs Act. Yet this plan backfired on the Senate GOP leadership when Tea Party lawmakers began lining up to denounce a key provision of their makeshift “jobs” bill as unconstitutional. This provision — a proposal to impose damage caps on medical malpractice suits in both state and federal court — has now attracted the ire of yet another Tea Party heartthrob, Virginia Attorney General Ken Cuccinelli:

With Senate Bill 197 — legislation that would have the federal government dictate how state judges are to try medical malpractice cases and cap what state courts may award — several Republican senators have reminded us that federal impositions on states that run contrary to the U.S. Constitution and to the spirit of federalism have never been the sole prerogative of just Democrats. . . . This legislation expands federal power, tramples the states and violates the Constitution. And if it were ever signed into law — by a Republican or Democratic president — I would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law in March 2010 (15 minutes later).

In reality, the constitutional case against federal tort reform is very weak. Congress enjoys broad authority to regulation national economic markets, such as the market for health care, and that includes the power to regulate those markets badly. If people don’t like the laws their elected officials put in place, our democratic Constitution empowers them to vote those officials out of office — it does not empower the law’s opponents to simply declare anything they want unconstitutional.

Nevertheless, Cuccinelli’s strident opposition to this law — and that of others such as tenther Sen. Mike Lee (R-UT) — should stand as a warning to Republicans who raced to embrace a crackpot theory of the Constitution the minute President Obama signed a health care law they disapproved of. Federally imposed tort reform has been a centerpiece of GOP health care policy for many years, and now this longstanding Republican goal many be unachievable because too many Republican lawmakers were conned into embracing Cuccinelli and Lee’s tenther vision of the Constitution.

Those that live by crackpot distortions of our Constitution, die by crackpot distortions of our Constitution.

Yesterday, ThinkProgress reported that Sen. Mike Lee (R-UT) believes the GOP “jobs” plan is “constitutionally problematic” because it includes a bill that tells state courts how much they can award to medical malpractice plaintiffs. Lee’s claim that the bill is constitutional suspect is particularly significant because he promised last March to block any bill that he believes does not have “a clear and obvious basis connected to one of the enumerated powers” of the Constitution.

On Twitter, we asked Lee’s office if he would keep his promise to obstruct bills that he does not believe to be obviously constitutional now that keeping his word requires him to block a major Republican priority. Lee’s office refused to say that he would:

It’s not exactly clear what Lee’s office is saying here, but one thing is absolutely clear. Lee has abandoned his original promise to obstruct legislation he deems unconstitutional.

The origin of Lee’s promise is a March 2 letter where he and seven of his colleagues promised to “object to the consideration of any legislation” that fails to meet five criteria — one of which states that “all bills must have a clear and obvious basis connected to one of the enumerated powers” in the Constitution. Because there are only two ways to bring most legislation to the Senate floor, unanimous consent from all 100 senators or a 60-vote “cloture” motion breaking a filibuster, Lee’s promise not to consent to a vote on bills that are not obviously constitutional amounts to an effective promise to filibuster those bills.

Now, however, Lee is merely saying that he will “vote against” bills that he thinks violate the “original understanding of the Const[itution],” not that he will actively filibuster them. This is a much weaker pledge. It leaves Lee free to vote yes on the only vote that matters in today’s hyperobstructionist Senate — the vote to invoke cloture and allow the GOP’s bill to receive an up or down vote. Similarly, his new claim that he will vote no on bills that he can’t reconcile with the “original understanding” is weaker than his original pledge to not only block bills that he deems unconstitutional, but also to block bills whose constitutionality is not “obvious.”

Lee made a sweeping and unambiguous pledge when he signed his March 2 letter. Now that this promise hinders his ability to behave like a loyal partisan, however, he has suddenly decided that it no longer applies. Lee’s willingness to water down his own promises the minute they come into tension with the Republican agenda raises serious questions about whether anything he says can be trusted.

Earlier this month, the Senate GOP cobbled together a hodgepodge of longstanding Republican objectives and called it a “jobs” bill in an attempt to neutralize President Obama’s popular jobs plan. One provision of this makeshift “jobs” plan would impose damage caps on medical malpractice suits in both state and federal court — a tort reform proposal that has been a centerpiece of GOP health care policy for many years.

Yet, in an interview with ThinkProgress’ Scott Keyes, Republican Sen. Mike Lee (R-UT) said he has very serious doubts about whether this longstanding GOP plan to restrict state courts is even constitutional. According to Lee, the federal government has full constitutional authority to tell federal courts how to operate, but only state legislatures have the same power to tell state courts how to operate:

LEE: Congress needs to be very careful when it enters into a uniquely state law area like tort. So tort reform needs to be undertaken very carefully insofar as it’s done at the federal level. There are some tort suits that proceed in federal court and, um, but if we venture much outside of that, particularly if we get into telling state courts how to interpret state law, that can be constitutionally problematic.

KEYES: [State tort reform] might not be justified as far as the enumerated powers go?

LEE: Correct, correct. . . . [tort reform] is something that can be addressed in some way at the federal level, but most of it needs to be done at the state level.

Watch it:

Lee is a notoriously bad judge of what is and is not constitutional, and he is probably wrong to suggest that the GOP’s tort reform bill is unconstitutional. Congress’ power to “regulate Commerce…among the several states,” gives it broad authority over the national health care market (although there are two Supreme Court cases that at least raise the possibility that a court could find the GOP’s plan unconstitutional).

Ultimately, however, it may not matter whether the GOP’s bill is constitutional or not. What does matter is that Lee promised last March to filibuster any bill that does not have “a clear and obvious basis connected to one of the enumerated powers” of the Constitution. Lee clearly doesn’t think that the GOP tort reform plan has this clear and obvious basis, so he is obligated by his own word to filibuster the GOP’s “jobs” bill.

More importantly, Lee’s objections to the GOP tort plan should be deeply embarrassing to the armies of GOP operatives who declared themselves the keepers of the Constitution the minute the Affordable Care Act appeared likely to become law. For nearly two years, Republicans have engaged in an unceasing lecture on how the ACA’s supporters were wrong to pass a bill that doesn’t comply with some entirely fabricated constitutional limit that no one had ever heard of before it was invented to attack the ACA. Now we learn that the GOP cannot even satisfy their own senators that a centerpiece of their health care plan is constitutional. Those who live in glass houses should not practice constitutional law.

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.