CHEAP, UNREGULATED LABOR AND MORE

Everyone should read this story in today's Times Magazine about the extremists' drive to change the judicial system:

Critics of the movement note, with some anxiety, that it has no shortage of targets. Cass Sunstein, a law professor at the University of Chicago (and a longtime colleague of Epstein's), will soon publish a book on the Constitution in Exile movement called "Fundamentally Wrong."

As Sunstein, who describes himself as a moderate, recently explained to me, success, as the movement defines it, would mean that "many decisions of the Federal Communications Commission, the Environmental Protection Agency, the Occupational Safety and Health Administration and possibly the National Labor Relations Board would be unconstitutional. It would mean that the Social Security Act would not only be under political but also constitutional stress. Many of the Constitution in Exile people think there can't be independent regulatory commissions, so the Security and Exchange Commission and maybe even the Federal Reserve would be in trouble. Some applications of the Endangered Species Act and Clean Water Act would be struck down as beyond Congress's commerce power."

In what Sunstein described as the "extreme nightmare scenario," the right of individuals to freedom of contract would be so vigorously interpreted that minimum-wage and maximum-hour laws would also be jeopardized.

Any movement with such ambitious goals must be patient and take the long view about its prospects for success. Michael Greve, an active defender of the Constitution in Exile at Washington's conservative American Enterprise Institute, argues that to achieve its goals, the movement ultimately needs not just one or two but four more Supreme Court justices sympathetic to its cause, as well as a larger transformation in the overall political and legal culture. "I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice," he says. "We want to withdraw judicial support for the entire modern welfare state. I'd retire and play golf if I could get there."

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