More Destruction of Public Safeguards. The Bush administration mounted an all-out assault on regulatory safeguards in its first term. An exhaustive catalogue of these attacks is available in our reports Special Interest Takeover: The Bush Administration and the Dismantling of Public Safeguards and The Bush Regulatory Record: A Pattern of Failure. Personnel may move around the agencies or out of government and back into the private sector, but don't be surprised to see more foxes in the henhouse. In short: expect more of the same from the first term.

Legislative Attacks. As we reported in The Watcher, House Majority Leader Tom Delay vowed back in March that his office was already working on a “universal regulatory reform” package for the 109th Congress. Now comes word that Rep. Tom Davis has announced that reauthorization of the Paperwork Reduction Act will be only one part of “a reform-focused legislative and oversight agenda that will streamline the federal government.” Brace yourselves.

Judicial Nominees Hostile to Protections of the Public Interest. Jeffrey Rosen wrote a thoughtful piece in The New Republic before the election contemplating what each presidential candidate would mean for the judiciary. As Rosen smartly observes, the usual shibboleths that Roe v. Wade and other pitched battles from the 1970s case books are at stake in a second term miss the point. Roe, as Rosen observes, may actually be quite stable in the long run, but excessive press focus on this threat is pushing the more dire threat under the radar:

If Bush wins, his aides seem determined to select justices who would resurrect what they call "the Constitution in Exile," reimposing meaningful limits on federal power that could strike at the core of the regulatory state for the first time since the New Deal. These justices could change the shape of laws governing the environment, workplace health and safety, anti-discrimination, and civil rights, making it difficult for the federal government to address problems for which the public demands a national response. . . .

The phrase comes from a 1995 article by Douglas Ginsburg, a federal appeals court judge in Washington, D.C., whom Ronald Reagan unsuccessfully nominated to the Supreme Court after the Senate rejected Bork. Condemning American judges for being too deferential to the regulatory state, he announced, "For sixty years the nondelegation doctrine has existed only as part of the Constitution in Exile," along with other "ancient exiles" repudiated after the New Deal.

These constitutional doctrines that were sent into "exile" during the New Deal are usually referred to as the Lochner era doctrines. Lochner and its ilk blocked early attempts at New Deal reforms such as wage and hour protections. After FDR attempted to launch his court-packing plan, the courts reversed course and found, in the Commerce Clause and Spending Clause in particular, the source of expansive Congressional power to legislate (and delegate authority to the administrative state) in the service of the public interest.

In 1995, however, the Supreme Court began taking tentative steps toward resurrecting some of the constitutional limitations on the regulatory state that had been dormant since the '30s. In controversial 5-4 rulings, the Court limited Congress's power to ban guns in schools, for example, and to punish violence against women, holding that the laws did not involve commercial activities and therefore couldn't be justified by Congress's authority to regulate interstate commerce.

These decisions have been appropriately criticized as activist and contemptuous of Congress by liberal supporters of the regulatory state. . . . Nevertheless, the Rehnquist Court's so-called federalism revolution has not yet delivered what the conservatives hoped. Every time the conservative justices have appeared on the brink of striking down a federal statute with real political support, such as [NEPA], O'Connor or Kennedy have written hedging opinions reassuring moderates that the Court intends to challenge congressional power only at the margins. But, if O'Connor or another liberal justice were to retire, and if Bush nominated a true believer in the Constitution in Exile, the federalism revolution would go into overdrive. And Democrats might not be able to block the appointment because, unlike abortion, federalism is not, at the moment, an issue the public understands or cares much about.

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Posted by Robert Shull, 02:42:17 PM