Courts allow regulators an end-run around Congress.
Regulation is out, litigation is in. The era of big government may be over, but the era of regulation through litigation has just begun.
-Robert Reich, former secretary of labor, USA Today, February Is, 1999
When President Clinton declared in his 1996 State of the Union address that "the era of big government is over," conservatives applauded. The Weekly Standard ran a cover headline screaming, "We Won." In Congress Republicans treated Clinton's statement as a concession speech for the liberal welfare state, the domestic equivalent of the fall of Communism.
There were good reasons for optimism. Republicans were imposing containment on big government by opposing any tax increases. GOP leaders announced they planned to pass a tax cut each and every year-and never pass a tax hike. In 1993, popular opposition to tax increases was so strong that even with strong Democratic majorities in Congress Clinton was barely able to raise taxes, forcing Al Gore to cast the deciding vote in the Senate and winning by only one vote in the House.
In 1997 Republicans managed to win the first (albeit modest) tax cut in i6 years. They've been stronger at defending against tax hikes at all levels-federal, state, and local-through such measures as a two-thirds supermajority requirement to raise taxes and the Taxpayer Protection Pledge. Indeed, by May of this year every single Republican running for president had signed the pledge against new taxes.
Thwarted on tax hikes, liberals found the Republicans also working to curb the regulatory state. As part of the Contract With America, Congress voted to forbid most unfunded mandates, which force state and local governments to raise taxes to meet regulatory standards imposed on them by federal rules. Commerce Committee Chairman Thomas Bliley's Regulatory Right to Know Act would require the government to calculate and make public the costs and claimed benefits of all regulations. Rep. J.D. Hayworth (RAriz.) has introduced legislation forbidding the executive branch from imposing new regulatory costs. All such regulations would have to be submitted to a vote of Congress before becoming law.
Even with some leakage, this containment strategy would over time bring down the cost of government. Of course, in politics, as in chess, the other team gets to move as well. The left has begun to rely on litigation to force tax increases, additional regulatory burdens, and massive transfers of wealth from productive Americans to parasitic class-tort lawyers.
This misuse of the courts to end-run the executive and legislative branches of government is an ever-growing problem. Judges have ruled that prisoners must have color televisions and granted welfare recip ients the "right" to more of other people's money. Courts have allowed government to grow in a way no legislature or governor would allow. Federal judges are not subject to elections.
State judges, who are subject to minimal electoral scrutiny, find that lengthy state constitutions provide opportunities for judicial activism. The supreme courts of Ohio, Vermont, and New Hampshire have ruled that the state constitution demands equal spending on education across different towns and cities. This had resulted in weakening local control of both education and tax policy. When its desired tax hike was defeated by a margin of 8o-zo by voters, the Ohio supreme court renewed demands for higher taxes. In New Hampshire the court may force an income tax hike on voters famous for rejecting such efforts.
On the national stage, 1997's $246-billion tobacco settlement convinced all political players that new rules were in play. When Mississippi Attorney General Michael Moore and the Castano group-a collection of wealthy trial lawyers who "invested" millions in planned lawsuits-teamed up to sue tobacco companies it wasn't clear they had a strong case. …