Wednesday, September 9, 2009

Cass Sunstein

Update: the Senate cloture vote passed 63-37. This guy is now in charge of making all rules for all Americans.

Reportedly today, the US Senate will vote on confirmation of law professor Cass Sundstein to be the "regulatory czar", formally known as the Administrator of the Office of Information and Regulatory Affairs. (Post edited to correct error: I said the position of "regulatory czar" was new to the Obama administration, but Eric correctly pointed out that OIRA has been around since 1980. See comments.)

Professor Sundstein is notorious for his strange and radical views. He is apparently an animal rights fanatic who has said that pets and livestock deserve legal standing with humans in court (he even published a book with this theme) . This apparently means you could be sued by your chicken (or perhaps someone else's chicken, or maybe a goat) for violation of the chicken's (or the goat's) civil rights. Chickens don't have civil rights, you say? We'll they do if the "Regulatory Czar" says they do - that's what "Regulatory Czar" means: he can make up any loony rule he wants and it will be the law of the land.

Sunstein is also deeply hostile to the 2nd Amendment, publishing legal arguments that it applies only to organized state militia, e.g. the National Guard. This position is contrary to the comments and writings of the authors of the constitution and many rulings of the Supreme Court (most recently DC v. Heller). He is also (as would be expected) strongly opposed to all forms of hunting.

Predictably, I suppose, Sunstein not only believes in high taxes: he apparently believes the government owns everything and everyone. According to him there really no such thing as private property.

If (it looks like when) he is confirmed, it is very likely he will use his position to immediately eliminate all hunting on federal lands (which is almost all hunting in the Western US). He will probably also implement all sorts of new gun control through administrative regulation. He could potentially impose vegetarianism on an awful lot of people fed with federal funds (like most schoolchildren). Not that I think vegetarianism is bad - I think it is good. But I don't think it should be imposed by the federal government.

In addition to saying that homeowners should not be permitted to eradicate rats in their home because this would violate the rats' rights, he has said the government should harvest the organs of certain terminally ill patients to give the organs to someone else whom the government considers more worthy (of a working kidney, or heart), because the government already owns your internal organs. Government death panels? You wish. Try government murder panels.

Sundstein reportedly attracted the admiration of the Obama administration because of his book last year called "Nudge", the theme of which is people are not smart enough to make decisions for themselves so the government should do it for them.

That notion is fundamentally, documentably contrary to the ideals upon which our nation was founded. It is pretty much exactly and specifically why the founding fathers fought the American Revolution.

Now we have a man who not only holds this view but celebrates it (he wrote a book saying the Constitution doesn't mean what it says) - a man not elected by any American - administratively assigned to a position - not provided for in the US Constitution or any law - where he can regulate the lives and behavior of Americans in any way he likes.

This would seem to be the most undemocratic thing that has happened in this country in 233 years.


Eric said...

Err... what?

This isn't a new position--it's been around since 1980 and is part of the OMB. It doesn't have anything to do with "making rules for all Americans"--rather it exists to grease the wheels between government agencies by allowing information to flow between them and by attempting to make sure there's some level of regulatory consistency. A big part of that regulatory consistency is making sure that the actions of various agencies reflect the judgment and agenda of the President (any President--this position was created by Reagan and has previously existed through three prior Republican Administrations and one prior Democratic Administration); regardless of how Professor Sunstein might personally feel about an issue, and even if the OMB had the power you attribute to it, the OIRA chief serves largely at the pleasure of the President and a "rogue" OIRA chief's longest-lasting action would be handing his resignation in.

Professor Sunstein is a nationally-respected legal scholar, for whatever that's worth. Even knowledgeable folks who disagree with him respect his integrity and work even if they disagree with him. It might also be pointed out that while I'm not in much of a position to discuss what Prof. Sunstein actually believes (I haven't read any of his work since law school, frankly, which is quite a ways back in the rearview, I'm afraid), law school professors are a bit notorious for bouncing extreme ideas around to see what sticks and what generates discussion; while I suspect Sunstein is zealous about animal "rights" issues, any particular statement he's ever made may or may not reflect his actual views or what he would define as sensible policy. Moreover, there's a fairly strong tradition in law of separating one's beliefs and practices: a lawyer may personally find a particular statute or rule disagreeable and yet zealously uphold it as a matter of it's the law until a legislature or court changes it. Hence an anti-capital-punishment prosecutor might seek the death penalty or a socially-conservative city attorney might sign off on an adult bookstore's permit application because that's what the duty to the law requires.

A more-balanced, less-frothy conservative take on Sunstein's appointment can be found here at the Wall Street Journal. (Admittedly, WSJ is probably to the left of Fox News, but what can I say?)

CW said...

Eric you are correct that OIRA has been around since 1980. I was confused because I had never seen a reference to a "Regulatory Czar" before the Obama administration. Post edited to correct the error.

I still believe, however, that the potential power of a "Regulatory czar" is extraordinary, however, because in gov't the devil is in the details. The Administrator of OIRA can dramatically influence the lives of Americans by simply sending memos to the Federal agencies saying "I think you should start interpreting your regulations in such-and-such a way", or "You should add this language to this regulation", etc. That's what OIRA does, as far as I can tell. Normally the agencies are supposed to follow the NPRM process. But many agencies are notorious for their use of "emergency" rulemaking authority, circumventing the NPRM process for regulation they know will attract a lot of comment and possibly litigation.

All of my opinions of Prof. Sunstein come from reading his writings, which are voluminous and consistent in their themes. Will he not attempt to implement his clearly held views now that he's in an extraordinary position of power to do so? I don't think I would bet on it.

Eric said...

I think it's revealing that nobody complains about OIRA for nearly three decades and then whumpf! when the Obama Administration takes office OIRA is suddenly an instrumental part of the new President's personal-militia-creating, gun-taking, grandma-killing, Nazi-communist, Kenyan-born agenda.

The dating of OIRA isn't the only fact that's off in the sources you cite: Sunstein didn't come to the Obama camp's attention because of Nudge, he was a known quantity who taught at the same law school Obama did and whose wife was an advisor to the Obama team until she went on a tear against then-Senator Hillary Clinton and was forced to publicly resign for damage control. The law school in question was the University Of Chicago, which isn't exactly regarded as a hotbed of liberalism, being the stomping grounds of Posner and other conservative legal theorists. Sunstein himself is regarded as an economically conservative thinker, whatever his thoughts on social policy are. And while I haven't read A Constitution of Many Minds, your comments on that book (at least) appear to be drawn from a cursory reading of Princeton Press' webpage--which doesn't say what you seem to think it says (perhaps Princeton does the book a disservice in describing it); the idea that the way the Constitution is interpreted has evolved isn't a controversial one in the law (even a strict constructionalist like Scalia would agree the interpretation has changed--Scalia's agenda is one of "restoring" the Constitution to what he believes its "original" meaning is).

The fact also remains that OIRA is (1) a regulatory agency, and therefore beholden to the statutes passed by Congress and (2) an arm of the Executive branch, and therefore beholden to the agenda of the President and operating at his pleasure. Should Sunstein improbably overreach in performing his task, he can be reined in by Congress and or the President, indeed may (and would) be forced to resign by the President. What's more, OIRA only is involved with the actual agencies creating the regulations in an oversight/advisory capacity, meaning that the head of, oh, say for example, the EPA could presumably respond to one of Sunstein's "directives" with a memo saying, "No, we aren't going to do that." The only way OIRA could enact the vast sweeping changes you seem to be afraid of would be with the connivance of the President, the entire Executive Burreaucracy, and Congress; while I don't think any of these agencies actually have the agenda you appear to attribute to them, if they did they're the elected government of the United States--suggesting that this agenda would represent some kind of majority agenda (if not, presumably the following election cycle would bring about a massive, metaphorical bloodbath). And assuming these changes really were unconstitutional, surely you trust the conservative-majority Supreme Court to use its counter-majoritarian power to restore the balance? Or do you really fear and dislike representative democracy, or only tolerate it when it suits you?

This isn't anything radical or new. This is business as usual, or would be with a different President. I can think of reasons, more specifically a reason that many Americans seem to dislike and distrust the new President in a general and inchoate fashion--I hope it's not a reason you share.

CW said...

My concern isn't that Sunstein will overreach his authority as Administrator of OIRA - it's that his appointment reflects the fact that the President shares his vision on the nature of government. My worst fear - which I hope is alarmist but after 30 years in government I'm pessimistic - is that this administration will seek to do through regulation (and "tweaking" or "nudging" of regulation as per Sunstein's suggestions) what it couldn't get away with in legislation.

I noted that Sunstein and Obama are longtime friends and colleagues at Chicago and that his wife was a ferocious Obama-ite during the campaign, but have also observed that many of Obama's statements seem to reflect the themes of "Nudge".

Sunstein has been suggested as a potential Obama Supreme Court nominee and appears to be a pretty close friend of the President. His appointment to what was, in past administrations, a pretty obscure post, combined with White House statements that the job was especially important to implementing their agenda, are among the factors that worry me.

My core point is the guy who gets to edit all regulations for the federal government, and suggest regulations to every federal agency, can wield enormous power, especially in an administration that favors social engineering via regulation, which President Obama has often said he does. And this particular guy holds views (based on his writings) that suggest he would like to radically transform the role of government in peoples' lives using regulatory power. That just scares me.

The Obama administration - from top to bottom - clearly, based on abundant public statements, holds a much more expansive view of the role and power of centralized Federal government than any other administration perhaps ever, certainly since FDR.

I believe these ideas are not in line with mainstream Americans (who seem to be pretty sceptical of Federal government power in general) and as a country we're not having a very informed or coherent discussion about that fact.

Since most Americans voted for President Obama, perhaps it is his big-government policies and agenda advanced since taking office, and not "some other reason" for the increasing distrust.

Tom said...

My first thoughts when reading what you claim could be what's going to happen are, "Yeah, right! (hehe)", and "These claims seem remarkable similar to "death panels", and "the Death panels are going to go after all Republicans," and "He's going to brainwash our children!"."

Why do people assume President Obama is the enemy of American Democracy? What makes you think he would try to abrogate the rule of law? He hasn't even tried to bypass Congress to get health care passed, why would he try to bypass the American political system to do some of these other crazy things? And crazy they are, both in intent, and in thinking that if by some wild-ass way they got done they'd last longer than the first apparent change or two?

What would you call a political process of persuasion based on fear of impossible speculative scenarios? Scare-mongery?

Leanright said...

What might be the vetting process for a "Regulatory Czar" versus the chief of the OIRA?

It's a fair question after the Van Jones fiasco.