Four More Years!?!?!

7 high hopes and 7 big fears for Bush's second term.

From the February 2005 issue

(Page 2 of 6)

Once appointed, federal judges aren't part of an administration, so they're not vulnerable to an administration's particular dysfunctions. Bush's court appointees won't be prone to getting fired for telling the administration things it doesn't want to hear, or for sticking to a principle rather than bending with Karl Rove's interpretation of the political winds. We have more reason to expect competent and successful change that accords with stated intentions in jurisprudence than in ordinary policy.

Those stated intentions aren't unambiguously welcome, of course. I neither want to see the 11th Amendment expanded further nor Lawrence v. Texas overturned. But there is a silver lining in the real chance that the Commerce Clause/10th Amendment revolution will continue and finally come to its overdue fruition. One to four Bush Supreme Court nominees could lead to some genuine supervision over whether Congress is usurping responsibilities of the states and exceeding the bounds of its Commerce Clause power.

This will not lead to the overthrow of the New Deal or of the intrusive federal state; the Supreme Court does not willingly move so far ahead of the political culture. But it could reinvigorate a public, political, and constitutional discourse around the idea that Congress is not a plenary legislature, and that it needs to exercise its authority within constitutional bounds.

Jacob Levy is an assistant professor of political science at the University of Chicago and author of The Multiculturalism of Fear (Oxford University Press).

I Fear...the Constitution Will Be Shredded

Nadine Strossen

My biggest worry is that fundamental constitutional freedoms will be eviscerated, either directly through constitutional amendments or indirectly through legislation that strips federal courts of the power to enforce such freedoms. My biggest hope is that we will continue to see bipartisan resistance to provisions in the PATRIOT Act and other post-9/11 measures that unjustifiably sacrifice civil liberties without adequate countervailing national security gains. I am optimistic that libertarians, conservatives, and liberals will continue to work together effectively to resist the steady stream of proposals to expand unwarranted government power even further; and that we'll enact reform measures, such as the Safety and Freedom Ensured Act, to bring the PATRIOT Act into line with constitutional checks and balances.

Nadine Strossen is president of the American Civil Liberties Union and a professor at New York Law School.

I Hope...Regulations Will Be Restrained

Virginia Postrel

New regulations come from two places: new legislation, often in response to some sort of momentary panic (think Sarbanes-Oxley, the extraordinarily costly response to turn-of-the-century corporate scandals), and continuous bureaucratic rule making. In its first term, the Bush administration exercised unusual restraint in producing new regulations.

"Since the younger Bush took office, federal agencies have begun roughly one-quarter fewer rules than Clinton and 13 percent fewer than Bush's father during comparable periods," The Washington Post reported in mid-August. Around the same time, The New York Times ran a remarkable chart showing that the Bush administration had imposed new regulations costing an average of $1.6 billion annually, compared to $6.2 billion for the Clinton administration, $8.5 billion for Bush 41, and $8.1 billion for the last two years of the Reagan administration.

The newspapers framed their reports as criticisms. Journalists and legislators tend to treat regulation as feel-good symbolism, a cheap way to demonstrate right-thinking attitudes. Its costs, in both out-of-pocket expense and foregone benefits (including never-explored innovations), get far less scrutiny than the taxes and spending that constitute the usual view of "economic policy."

Less new regulation isn't deregulation, but the Bush administration's low-profile focus on regulatory costs represents a real challenge to bureaucracy as usual. My hope for a second term is to see this approach continue--and to push back against the current drive for tighter Food and Drug Administration restrictions. My fear is of new legislative panics, leading to new regulatory laws, particularly in biomedicine.

Virginia Postrel is the author of The Substance of Style, recently published in paperback by Perennial, and The Future and Its Enemies (Free Press).