The “21st Century Contract with America”

I’ve just been reading Gingrich’s new version of the Contract with America.   It repeats Gingrich’s desire to end most federal regulations in favor of federal coaching and subsidies for businesses and state governments:

We must also replace the EPA, which pursues an anti-jobs agenda the economy simply cannot sustain. A pro-growth Environmental Solutions Agency in its place will operate on the premise that most environmental problems can and should be solved by states and local communities. Rather than emphasizing centralization and regulation, it would emphasize coordination with states and local communities, the sharing of best practices, and focus on incentives for new solutions, research and technologies.

Much of the Contract covers familiar ground like repealing Health Care Reform and deregulating Wall Street, but there was one aspect that was less familiar to me: the campaign against an independent judiciary.  The document, and a white paper it’s linked to, is replete with threats against the judiciary for thwarting the will of the White House and Congress.  Weirdly, Gingrich dates judicial activism to “the last half century,” meaning it started after Earl Warren left the Supreme Court. The chronology may be sloppy but the threats are real. For instance,

There are clear legislative and executive remedies for courts and judges that violate their oath of office, act beyond the judicial power, or otherwise act in a manner that violates the Constitution, and these remedies have been used in the past.

For example, Thomas Jefferson and the new Congress abolished over half the federal judgeships and reorganized the federal judiciary with their repeal of the Judiciary Act of 1801 and their passage of the Judiciary Act of 1802. Congress also has the power under Article III of the Constitution to regulate the jurisdiction of the Supreme Court and other federal courts.

Since environmentalists are often in the position of asking judges to enforce the law even when doing so is unpopular, the effort to make the courts more subservient to political influence isn’t good news. But of course, the real issue is the rule of law, not impacts on any particular interest group or ideology.

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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