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The Stealth Campaign to repeal the New Deal

Publius over at Legal Fiction has a great essay entitled, The Tempting of the Federalist Society, which lays out they case that we should not be worried about Roe v Wade being repealed, but rather that the GOP will pack the courts to overturn the New Deal Administrative State:

Much of the conservative judiciary has adopted a judicial philosophy that is strikingly anti-democratic in the economic sphere. This philosophy - if enacted - would shift the power to judge economic regulations from the legislature to the judiciary. The Lopez line of cases lends itself quite well to a frontal assault on the regulatory state. More precisely, an expansion of these cases would allow judges rather than legislators to be the final arbiters of what regulations may be enacted. Another (though less likely) line of attack could come from a renewed or revived version of Lochner, which would also shift power to the judiciary at the expense of the legislature.

Why is this so scary? Well, if you like eating disease-free meat, or drink clean water, or like smog free air, or make sure airline safety is regulated, or a whole host of basic human safety issues, those will be eroded. Just like we have seen before, the GOP can't possibly pass legislation to repeal these popular (and necessary programs) so they are using stealth and misdirection (oh my god, thos GAYS are going to get you!) in order to achieve what is politically impossible.

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