Obama’s Regulatory Czar – Cass Sunstein

Two weeks ago, Cass Sunstein, was confirmed by a Senate vote of 57-40 as the new Director of the Office of Information and Regulatory Affairs (OIRA), an agency of the Office of Management and Budget. For those keeping score, six Republicans voted yes  (Bennett, Collins, Hatch, Lugar, Snowe, and Voinovich),  five Democrats voted no  (Begich, Lincoln, Nelson, Pryor, Webb) and Independent Sanders voted no.  Senators Boxer and Byrd did not vote.  All of the rest voted down party lines with Democrats in favor and Republicans opposed.

Here is what the “Regulatory Czar” does: He regulates laws – past, present and future.

The position was created during the Reagan administration with the mission to be the regulator’s regulator, with the power to block proposed new regulations unless their costs are justified by their benefits.

During the Bush Administration, OIRA and its administrators (John Graham and Susan Dudley) were constantly under attack from the left, which saw them as imposing unwanted scrutiny on regulatory schemes.  Although they never had the power the left painted them having, regulatory burdens increased significantly during the Bush administration.  During those years, OIRA provided a key hurdle for those wanting to impose new regulations.

The nomination of Cass Sunstein caused an uproar on the talk radio circuit.  They cited articles written, interviews given and speeches made over and over in an effort to paint him as the most radical of radicals.  Admittedly, some of the positions Sunstein has taken can make a strong believer in the Constitution as written by the Founding Fathers take pause.  Indeed there were three Senators who have delayed this vote by putting a “hold” on the vote.

Animal Rights Activist

The Center for Consumer Freedom has targeted Sunstein, who it claims has a “secret aim to push a radical animal-rights agenda in the White House.”  Sunstein has indeed made provocative statements on the issue of animal rights.  In 2002, he wrote, “There should be extensive regulation of the use of animals in entertainment, scientific experiments, and agriculture,”  in a working paper at the University of Chicago.  In the 2004, Animal Rights: Current Debates and New Directions, which he was co-editor and contributed to, he wrote, “Animals should be permitted to bring suit, with human beings as their representatives…Any animals that are entitled to bring suit would be represented by (human) counsel, who would owe guardian-like obligations and make decisions, subject to those obligations, on their clients’ behalf.”  And during a 2007 panel discussion on animal rights at Harvard, Sunstein said hunting for “sport and fun” as opposed to for food, should be “against the law” and that greyhound racing, cosmetic testing on animals, and the eating of meat raised in inhumane conditions ought to be eliminated. He also said at the panel that the current treatment of livestock and other animals should be considered “a form of unconscionable barbarity not the same as, but in many ways morally akin to, slavery and mass extermination of human beings.”

Martha Nussbaum, a professor at the University of Chicago who co-edited Animal Rights with Sunstein, insists that his views are “not in the least” radical. According to Nussbaum, Sunstein eats meat and has no secret plan to force vegetarianism on the American people.  As for Sunstein’s argument that animals should have the right to sue humans, Nussbaum says it is simply a novel solution to a tough legal problem: The problem here is that when existing laws against animal cruelty are not enforced, nobody has “standing” to get the authorities to enforce them. Concerned citizens are held to lack “standing” because they are not the ones who are suffering. So what Sunstein is asking is that humans be able to go to court as advocates for animals who are being ill treated, when that treatment violates existing law.

 Censorship on the Internet

Kyle Smith writes in the New York Post about another aspect of Sunstein’s ideology:

 “Cass Sunstein, a Harvard Law professor who has been appointed to a shadowy post that will grant him powers that are merely mind-boggling, explicitly supports using the courts to impose a “chilling effect” on speech that might hurt someone’s feelings. He thinks that the bloggers have been rampaging out of control and that new laws need to be written to corral them.”

About Sunstein’s new book, “On Rumors: How Falsehoods Spread, Why We Believe Them, What Can Be Done,” Smith writes:

“Sunstein reviews how views get cemented in one camp even when people are presented with persuasive evidence to the contrary. He worries that we are headed for a future in which “people’s beliefs are a product of social networks working as echo chambers in which false rumors spread like wildfire.” That future, though, is already here, according to Sunstein. “We hardly need to imagine a world, however, in which people and institutions are being harmed by the rapid spread of damaging falsehoods via the Internet,” he writes. “We live in that world. What might be done to reduce the harm?”

Sunstein’s book appears to be a blueprint for online censorship.  He wants to hold blogs and web hosting services accountable for the remarks of commenters on websites while altering libel laws to make it easier to sue for spreading “rumors.”

Smith notes that bloggers and others would be forced to remove such criticism unless they could be “proven”. The litigation expense would be daunting; the time necessary to defend a posting (or an article) would work to the benefit of the public figure being criticized since the delay would probably allow the figure to win an election before the truth “won out”.

Troubling to say the least since bloggers often raise issues to encourage others (perhaps with more resources) to further investigate issues.

Matt Cover of CNSNEWS.com writes about views expressed in the 2008 book “Nudge: Improving Decisions About Health, Wealth, and Happiness,” where Sunstein and co-author Richard H. Thaler advocate a policy under which the government would “presume” someone has consented to having his or her organs removed for transplantation into someone else when they die unless that person has explicitly indicated that his or her organs should not be taken. 

In “Nudge,” Sunstein and Thaler argued that the main reason that more people do not donate their organs is because they are required to choose donation.  They pointed out that doctors often must ask the deceased’s family members whether or not their dead relative would have wanted to donate his organs. These family members usually err on the side of caution and refuse to donate their loved one’s organs.  “The major obstacle to increasing [organ] donations is the need to get the consent of surviving family members,” they said.

This problem could be remedied if governments changed the laws for organ donation, they said. Currently, unless a patient has explicitly chosen to be an organ donor, either on his driver’s license or with a donor card, the doctors assume that the person did not want to donate and therefore do not harvest his organs. Thaler and Sunstein called this “explicit consent.”
They argued that this could be remedied if government turned the law around and assumed that, unless people explicitly choose not to, then they want to donate their organs – a doctrine they call “presumed consent.”
“Presumed consent preserves freedom of choice, but it is different from explicit consent because it shifts the default rule. Under this policy, all citizens would be presumed to be consenting donors, but they would have the opportunity to register their unwillingness to donate,” they explained.

While the Sunstein and Thaler’s plan still leaves the choices up to We the People, it seems to give the government more control over our lives, even when that life is over.

Concerning the Right to Bear Arms, Sunstein’s views on the Second Amendment: “My coming view is that the individual right to bear arms reflects the success of an extremely aggressive and resourceful social movement and has much less to do with good standard legal arguments than it appears.”  In his book “Radicals in Robes,” he wrote: “Almost all gun control legislation is constitutionally fine. And if the Court is right, then fundamentalism does not justify the view that the Second Amendment protects an individual right to bear arms.”  As I understand Sunstein’s views, the Right to Bear Arms is not an individual right, it is a Federal right.

Other areas that Cass Sunstein is reported to have views that have caused some to be opposed to him being in this position:

  • Sunstein advocates a “Second Bill of Rights” even more totalizing and all-consuming than initially proposed by Franklin D. Roosevelt’s “New Deal” in the 1930s. Among these rights are a right to an education, a right to a home, a right to health care and a right to protection against monopolies.
  • Sunstein has written that he believes the United States should be spending the money spent on the war in Iraq on funding the Kyoto Protocol.  “For the United States, the economic burden of the Iraq war is on the verge of exceeding the total anticipated burden of the Kyoto Protocol. Because the price of the war increases every day, its total cost, for America as well as the world, will soon dwarf the expected cost of a remarkably ambitious effort to control the problem of climate change.”

To be fair, Sunstein is a stout supporter of cost-benefit analysis as a primary tool for assessing regulations, despite its imprecision and the ease with which it is manipulated to achieve preferred policy outcomes;

He supports such cost-benefit approaches as the widely condemned “senior discount” method for undervaluing the lives of seniors in cost-benefit analyses, an approach even the Bush Administration was forced to disown;

He rejects the “precautionary principle” as a basis for regulating, thus ensuring that dangerous pollutants and products will be given the “benefit of the doubt,” rather than well-grounded concerns about health and safety;

He has written that the Occupational Safety and Health Administration might be unconstitutional.

The Senate confirmation has already taken place, so we have to deal with it.  On one hand, Cass Sunstein may be a good choice for the position, but on the other hand there are all of his writings and spoken positions to think about.  We need to keep an eye on Sunstein’s activities and rulings to see which way he will go.  The questions we have aren’t going away simply because 57 Senators are satisfied.


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