Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Conservative interest groups may be celebrating a series of rock-solid conservative Cabinet appointments — including those of John Ashcroft at the Justice Department, Linda Chavez at Labor, and Gale Norton at Interior — but don’t expect these outside groups, which have waged war for the past eight years against the federal bureaucracy, to ease up on their legal attack on the government any time soon. “We are not going to quit suing the government just because George Bush won the White House,” says Lynn Hogue, president of the Southeastern Legal Foundation, a conservative group that works for limited government and has fought for President Bill Clinton’s disbarment. Indeed, these groups aren’t blind to the political and legal realities that might deter the Bush administration from proposing or implementing wholesale reforms from within. First, there is bureaucratic inertia. With thousands of rules and thousands of employees, agencies often find it tough to shift directions. Moreover, regulations and rules are difficult to abolish. “I would like to think that any administration is going to be this all-powerful conservative force that is going to sweep in like the Mongols across the steppes of Asia and clear everything out of their path,” says James Burling, an attorney with the Pacific Legal Foundation, a conservative law group that frequently litigates property rights issues. “That is far, far, far from the reality.” And conservatives are mindful that the president-elect, despite his background and philosophy of some of his appointees, may not prove willing to go the distance. After all, Bush’s father has long been criticized by conservatives for not being as vigorously anti-regulatory as President Ronald Reagan. George W. Bush could run into criticism for the same thing. “The way [George W.] Bush campaigned and the way Reagan campaigned are very different,” says Walter Olson, a senior fellow at the conservative Manhattan Institute. “Bush did not campaign on ‘Let’s go to Washington and tear everything down because they haven’t made a right decision in years.’ He just hasn’t shown his hand yet.” Making matters even murkier for conservatives: Although a number of Bush’s appointees seem to have a philosophy steeped in a deep mistrust of government power, the Cabinet is not uniform in its views. Some Bush picks seem to reflect a “new Republican” style that believes in targeted, scaled-down regulation, rather than dismantling regulatory schemes and agencies. Already there are clear areas of policy disagreement among the Cabinet appointees, such as differences between Secretary of State-designate Colin Powell and Labor nominee Linda Chavez over affirmative action. The Cabinet may at some point find itself divided about policy decisions and approaches. “There could be a war in Bush’s Cabinet,” says Charles Sabel, a law professor at Columbia University. “There will be genteel but very high-stakes pokering about this question in the administration.” PUSHING RIGHTWARD That’s where the outside groups come in. The conservative think tanks and public interest law groups are going to continue full-speed in Bush’s administration, pumping out legal theories and principles of governance they hope the Bush administration will rely on. And if the administration doesn’t move quickly or forcefully enough in the direction they want, there are always lawsuits. As much as some conservatives say they disdain litigation, there are advantages to taking such cases to court. A successful suit can result in a hated rule or policy being summarily tossed out. Or there is the potential of more favorable settlement terms with an agency that agrees to roll back policies or practices. And it will be the job of the conservative groups to prod from both the inside and outside for change. “One thing I would say to the Bush administration and to the administrative agencies in the federal government,” says Hogue of the Southeastern Legal Foundation, “is that we are not going to quit in our task in fighting for freedom and liberty.” Bush’s Cabinet selections do show a serious commitment to the conservative ideological section of the party. Many have worked with conservative public interest organizations, fighting against government policies themselves. From 1995 to the present, Chavez ran the Center for Equal Opportunity, a group that brings cases seeking to block bilingual education programs and affirmative action in schools. Norton once worked at the Mountain States Legal Foundation, which advocates for property owners fighting government regulations. Former Michigan Republican Sen. Spencer Abraham, Bush’s pick for Energy secretary, is a founding member of the Federalist Society, the incubator for conservative legal philosophy. “The conservative public interest litigation effort, which was begun about 10 years ago or so, has now matured to the point where people who have been involved now have the stature to merit Cabinet appointments,” says James Bopp of the James Madison Center for Free Speech. “It’s a kind of coming of age.” These groups, which found themselves frozen out of a Democratic White House, are looking forward to new access and power. But they are taking nothing for granted. Conservatives are already reading tea leaves in Bush’s appointments, mapping out what policies and regulations will be revisited and revised. The business groups already have a list of what they consider costly or onerous regulations that they want rescinded. But what conservative ideological groups want is not just a lifting of regulations on business, but a revisiting of the government’s stance on principles such as civil rights, affirmative action, employer rights, desegregation, property rights, and environmental regulation, among others. Already, conservatives have racked up a number of victories on the legal front in these areas. The Rehnquist Supreme Court has come down in favor of states’ rights and reined in the federal government in many areas. In Supreme Court cases such as Adarand Constructors Inc. v. Pe — a; Dolan v. City of Tigard; and United States v. Lopez, the high court has curtailed federal affirmative action programs, limited the ability of government to engage in takings of public property, and narrowed Congress’ powers under the commerce clause. Many of these legal victories have been won due to the efforts of the conservative legal groups. They target regulations, find disenchanted clients to represent, and pump out legal briefs and law journal articles to help push the judiciary in the direction they want. TAKINGS AND RACE CASES But these victories have not been enough, say conservatives. The Clinton administration has continued to put out policies and regulations they emphatically oppose. Even with the law on their side in certain areas, they still find the battles difficult to win. “I can assure you that most landowners have an extraordinarily difficult time succeeding in the courts,” says Burling of the takings cases his group fights. The Clinton administration has “been able to throw up roadblocks.” That is why winning the White House was so important. Conservatives will now be able to work on all three branches of government to start rolling back regulations. Already, there is a list of changes that conservatives anticipate will be enacted in the new Bush administration. For one, they expect the Justice Department to ditch its position that opening a predominantly black charter school violates pre-existing desegregation orders enforced in certain cities. The libertarian group Institute for Justice is tussling with the DOJ over that issue in Baton Rouge, La. The Justice Department is also expected to examine the list of school systems still operating under federal judicial control due to segregation issues, and advocate for removing those schools from federal oversight. The Office of Federal Contract Compliance in the Department of Labor is expected to re-examine its policies on affirmative action hiring, and to emphasize economic status — not race and gender — in crafting employment regulations for contractors. Groups also expect the Department of Interior to be much more flexible with how federal lands can be used. “We look forward to a government that is much more mindful of its limitations and individual rights,” says Mark Levin, president of the Landmark Legal Foundation, another conservative public interest law firm. “It shouldn’t surprise anybody that the conservative organizations are going to be much more in sync with this administration … . This is why you see the liberal groups squawking so loudly. They have lost a friend and we have gained one.” But the one thing the conservatives have learned over the years is that fights to change public policy have to be fought in both the legal and the political arena. What they can’t accomplish in one, they might be able to in the other. “I would rather sue bureaucrats than be one,” says Clint Bolick, vice president and director of litigation for the Institute for Justice. “We revel in our independence. I am chomping at the bit to be able to criticize the Bush administration for something.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.