UNDER THE RADAR. To follow up on Rob and Ezra's posts, it's important to emphasize the extent to which regulatory and judicial activity have become crucial to Republican undermining of various New Deal and Great Society programs. A couple years ago, Brad DeLong and Matt Yglesias pointed out that conservatives achieved power only by largely abjuring the rollback of social welfare, civil rights, and environmental legislation they had been their central goals. This is true, but also somewhat misleading. As Mike Tomasky, while discussing the (to put it charitably) historic misjudgment of Nader supporters, put it:

In every agency of government, at every level, there are political appointees who are interpreting federal rules and regulations and deciding how much effort will really be put into pursuing federal discrimination cases, for instance, or illegal toxic dumping. These are the people who are, in fact, the federal government. The kinds of people who fill those slots in a Democratic administration are of a very different stripe than the kinds who fill them during a Republican term, and the appointments of these people have a bigger effect on real life than whether Al Gore sighs too heavily or speaks too slowly.

Even when Republicans control all three branches, they can't repeal the Clean Air Act or Civil Rights Act. But the effectiveness of laws like these comes down to how they're applied -- if the executive branch fails to pursue rights violators with any vigor, and the courts make it difficult for litigants to bring suits, the relevant legislation is greatly watered down without anyone having to actually modify the legislation (and hence attract much more political attention). Judicial conservatives on the Supreme Court have done something similar, slowly stripping major liberal precedents of content rather than directly overturning them, and increasingly reactionary federal circuit courts will apply "minimalist" Supreme Court decisions that permit wide judicial discretion. As Ezra says, Bush can do a lot more damage even thought the Republicans have lost control of Congress.

--Scott Lemieux

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