GOP Tort Reformers On Collision Course With GOP Tenthers

Shortly after President Obama came into office, and Congress started passing laws that conservatives don’t like, Republicans decided to embrace tentherism, a radical states rights doctrine which claims that federal child labor laws, FEMA, food stamps, the FDA, Medicaid, income assistance for the poor, Medicare and Social Security and, of course, the Affordable Care Act violate the Tenth Amendment. Now that the GOP wants to pass a few bills of its own, however, they’re discovering that stripping national leaders of their ability to solve national problems can come back to bite them:

Unlike the Democrats who oppose the bill — on the grounds that medical lawsuit limits are unfair to the victims of malpractice — Poe and Gohmert aren’t opposed to the idea of tort reform. They just want to make sure Texas gets to keep its own law, which caps “pain and suffering” damages at $250,000.

“The question is: does the federal government have the authority under the Commerce Clause to override state law on liability caps? I believe that each individual state should allow the people of that state to decide — not the federal government,” Poe said in a statement after the markup.

“If the people of a particular state don’t want liability caps, that’s their prerogative under the 10th Amendment. I firmly support malpractice reform as we have in Texas, but I have concerns with the current bill as written,” Poe said.

Gohmert, for his part, noted that “the right of the states for self-determination is enshrined in the 10th Amendment” and warned that “I am reticent to support Congress imposing its will on the states by dictating new state law in their own state courts.

Nor is tort reform the only part of the GOP’s agenda which is off the table if tentherism ever takes over. The Republicans’ well-worn line about letting people buy insurance “across state lines” is nothing more than a message-tested way of saying that Congress should invalidate state laws protecting patients against abusive insurance companies. The GOP’s longstanding fantasy of turning Social Security over to Wall Street runs headlong into the tenthers’ belief that the federal government isn’t allowed to do anything to provide for retired Americans.


None of this, of course, means that it would be a good thing if a GOP Congress turned this agenda into law. Social Security privatization and legal immunity for insurers are both terrible ideas. But they are also terrible ideas that elected officials have the right to enact. That is one of the consequences of living under American democracy.

In October of 2008, one month before Barack Obama was elected to the White House, even leading conservatives knew tentherism to be a radical and radically stupid idea. As soon as Obama took office, however, the GOP decided to set aside reason in favor of momentary political gain. They are now learning that when you unleash a dangerous doctrine upon the country you won’t be able to control its effects.