The GOP schism on using federal power

[Greenbeard]

There seems to be a major issue separating conservatives today (or at least two groups that both use the term to describe themselves): defining the contours of the appropriate use of federal power.

The two current GOP frontrunners, despite their occasional anti-federal government rhetoric, both seem to believe in the power of the government--even the dreaded federal government--to do big things. Mitt "59-point plan" Romney has an unfortunate history of using the levers of power to make people's lives better and, of course, the base is wary that if elected President he'll try and do it again, and Gingrich's history and views led George Will to recently brand him as the least conservative candidate running, in part because of his "anti-conservative confidence that he has a comprehensive explanation of, and plan to perfect, everything."

One of the areas that most clearly separates the likes of them from the true blue "state>federal" crowd is tort reform, something I was reminded of today by a moment in last weekend's forum for presidential candidates.

Michele Bachmann's campaign website assures visitors that:

As a constitutional conservative, I believe in the Founders' vision of a limited government that trusts in and preserves the unlimited potential of the American people.

I don’t believe that the solutions to our problems come from Washington: more than ever, Washington IS the problem, and the real solutions will come from your businesses, your communities, your schools and the most basic and powerful unit of all, your families.

Yet at Mike Huckabee's presidential forum this weekend, she revealed that, indeed, sometimes the solutions to our problems do come from Washington. It made for an awkward moment because her questioner, Tea Party darling and Virginia Attorney General Ken Cuccinelli, clearly seemed to come down on the side of state authority, not federal authority (Bachmann gets on the hot seat near the 37:00 mark).

Ken Cuccinelli: Congresswoman, Congressional Republicans all but universally support tort reform but you're a strong believer in a limited federal government. Currently, there's a bill before Congress, Senate Bill 197, that would allow the federal government to dictate how state judges are to try medical malpractice cases and cap what awards can be given by juries under state law. Do you support that bill?

Bachmann: I support tort reform, absolutely, because frivolous lawsuits are out of control. There is an issue with the Tenth Amendment, I recognize that. Some states have implemented caps on the frivolous lawsuits and lawsuits that come forward. One state is California, another state is Tex--

Ken Cuccinelli: Let me zero you in, though. You support tort reform, so do I. But do you support federal tort reform that governs how states may conduct their medical malpractice trials?

Bachmann: I can, I can. I can come out in support of that. This is an issue that I think is a fundamental issue and it's something that I can support.

For a little perspective on Cuccinelli's personal opinion on such proposals, you need only look to an op-ed he wrote a month ago on that federal tort reform bill, vowing to "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)":

The five senators in question obviously support tort reform, and they are willing to smother states to impose their policy preference. It is frustrating how “broadly” some senators interpret the powers of the federal government when they are pursuing a favored policy, and how “limited” those same powers are seen to be when it is the other guy’s proposal violating the Constitution.

Senate Bill 197 takes an approach that implies “Washington knows best” while trampling states’ authority and the 10th Amendment. The legislation is breathtakingly broad in its assumptions about federal power, particularly the same power to regulate commerce that lies at the heart of all the lawsuits (including Virginia’s) against the individual mandate of the 2010 federal health-care law. I have little doubt that the senators who brought us S. 197 oppose the use of the commerce clause to compel individuals to buy health insurance. Yet they have no qualms about dictating to state court judges how they are to conduct trials in state lawsuits. How does this sort of constitutional disconnect happen?

An example of one policy question the legislation would take from states is whether to cap medical malpractice awards. Virginia is among those states that utilize caps; others do not. But it is the right of the residents of each state to decide which system works best for them, rather than having a one-size-fits-all plan imposed unconstitutionally by the federal government.

Similar intraparty confrontations played out in the House of Representatives earlier this year when Republicans moving a federal tort reform bill through committee met opposition from Tea Party-sympathizing freshmen:

At a Judiciary Committee markup, Rep. Ted Poe (R-Texas) accused Rep. Phil Gingrey (R-Ga.) of proposing legislation that would violate the Constitution.

The panel was considering legislation sponsored by Gingrey, who does not sit on the committee and was not present, that would impose a $250,000 cap on non-economic medical malpractice damages. Poe, a former felony court judge and a member of the House Tea Party Caucus, said that violates the Constitution.

He also warned he'd vote against the measure if it imposes caps on states that don't want them.

"I got problems with that," Poe said. "I think it's a violation of the Tenth Amendment." [...]

[Lamar] Smith, who has made tort reform one of his top five priorities, defended the law, saying tort reform falls under the purview of the Constitution's Commerce Clause.

"If Alabama and New York want to be a haven for malpractice suits, it's great for Texas," said Rep. Louie Gohmert (R-Texas). "I'm reticent to allow Congress to impose our will on the states."

Similar questions arise when certain folks on the right propose to use federal power to deregulate state health insurance regulations (i.e. the standard GOP across-state-lines suggestion), though I'm not aware of any federal legislation for that proposal receiving serious attention in the House, nor do I know how deep the philosophical and intellectual consistency of the states' righters extends, so I don't think there have been sparks over that one (yet).

But it seems the GOP is grappling with a very important question: when is it appropriate to use federal power, particularly as it involves overruling state actions? Then again, given the frontrunners, maybe that question has already been answered.

 

[Greenbeard]

Since we know where Bachmann stands,here are a few examples, both of leading candidates and of minor candidates like Perry, advocating for a federal approach:

"To address these problems, Mitt Romney will cap non-economic damages in medical malpractice litigation."

--His campaign website

"Stop junk lawsuits that drive up the cost of medicine with medical malpractice reform."

--Point 10 of Newt Gingrich's "Patient Power" plan to replace the ACA

"You want to talk about some powerful job creation, tell the trial lawyers to get out of your state and to quit costing businessmen and women. That's what needs to happen in the states. and it's also what needs to happen at the federal level, passing federal tort reform at those federal levels."

--Rick Perry at the Tea Party Express debate

Even Ron Paul seeks federal solutions to deficiencies in state tort law via a new federal tax credit for insurance (though he stops short of outright federalization of tort law):

He will work with Congress to: [...] Ensure that those harmed during medical treatment receive fair compensation while reducing the burden of costly malpractice litigation on the health care system by providing a tax credit for “negative outcomes” insurance purchased before medical treatment.

Any Cuccinelli types among the lot? And if not, why isn't his brand of state-power-first conservatism represented in the GOP primary?

 

[blastoff]

I give up.

 

[Katzndogz]

States that permit junk lawsuits and do not have caps on non-economic damages shortly have no doctors. The market can certainly decide this.

 

[Greenbeard]

I take it you're suggesting, like Ken Cuccinelli, that this is an issue for states to work out for themselves.