Sunstein, Cass
Mr. Obama entered office in January 2009 determined to make his mark by passing bold new laws, not by tinkering with rules. Rahm Emanuel, his first chief of staff, and other top aides mapped out an ambitious two-year agenda that included a health care overhaul, new banking laws, a remake of the federal student loan program, infrastructure spending and stricter limits on pollution.
The new president had a skeptical streak when it came to the value of regulation, influenced by his friend Cass R. Sunstein, a Harvard Law professor who had long argued that the government should more rigorously assess the benefits of new regulations. Mr. Obama liked that idea so much that he named Mr. Sunstein to lead the White House office that oversees rule-making.
“The president is not somebody who is intuitively or inherently a regulator,” said Howard Shelanski, who followed Mr. Sunstein in that role in mid-2013. He said Mr. Obama conveyed a simple message: “‘If we can get a good result without regulating, let’s do that.’”
But after eight years of a Republican administration, many Democrats were eager for the government to lean more forcefully on the levers of regulatory power, and officials within the federal bureaucracy felt emboldened.
The White House did resist some ideas. It shut down efforts by Lisa Jackson, Mr. Obama’s first administrator of the Environmental Protection Agency, to increase the regulation of ozone, a decision that environmentalists viewed as a betrayal.
Continue reading the main story
But other rules were allowed to proceed. Kate Hanni, an advocate from Napa, Calif., for the rights of airline passengers, had tried for years to persuade the government to address a series of incidents in which flight delays left passengers trapped for hours on planes that had already left the gate, often in cabins with stinking toilets, weak air-conditioning and no food. The Bush administration put Ms. Hanni on a task force consisting mostly of airline executives, which concluded in the fall of 2008 — over her forceful and repeated objections — that the public was best served by allowing the airlines to make their own decisions.
Weeks after the task force released its report, Ms. Hanni was invited to Washington in December 2008 to meet with Robert S. Rivkin, the head of Mr. Obama’s transportation transition team. Democrats in Congress had introduced legislation to address the issue, but Mr. Rivkin asked Ms. Hanni if she would support new regulations instead. She would back anything enforceable, Ms. Hanni said.
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Point/Counterpoint: Valuing Internalities in Regulatory Impact Analysis
By Brian Mannix & Susan Dudley
June 11, 2015
Brian Mannix & Susan Dudley debate Hunt Allcott & Cass Sunstein in the*Journal of Policy Analysis and Management*, Vol. 34, Issue 3 Summer 2015
In this Point/Counterpoint series of 4 articles in the new issue of the Journal of Policy Analysis & Management, Brian Mannix & Susan Dudley engage in a back-and-forth with Hunt Allcott & Cass Sunstein on the advisability of regulatory interventions based solely on "internalities," which Allcott & Sunstein define as "costs we impose on ourselves by taking actions that are not in our own best interest." In "The Limits of Irrationality as a Rationale for Regulation" and "Please Don't Regulate my Internalities," Mannix & Dudley warn that "allowing regulators to control consumers 'for their own good' – based on some deficiency in the consumers themselves rather than any failure in the marketplace – is to abandon any serious attempt to keep regulatory policy grounded in any objective notion of the public good." (Let us know if you cannot access these articles.)
Read the full articles in the Journal of Policy Analysis & Management
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http://mediamatters.org/print/blog/2013/08/01/fox-news-adopts-glenn-beck-nudge-conspiracy-the/195177
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cass sunstein legal prof wrote on Conspiracy Theory and suggested a counter was to infiltrate nutty chat rooms and spread true memes, made him target of beck et al goldwag 61- WND
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new book simple/r seems pretty benign
When you start treating grown men and women like you’re their father, though, the charge of paternalism becomes a more serious one. There may be cases in which a heavy-handed approach is necessary (particularly when people’s actions harm others), but we should be careful about using it. A more circumspect approach is libertarian paternalism, described by Richard Thaler and Cass Sunstein in Nudge (and re-articulated more recently by Sunstein in his Simpler) as a way of influencing people to make decisions that they themselves would consider beneficial, without restricting their freedom.
Here, we are not tying Odysseus to the mast – the more appropriate analogy would be to the beeswax that Odysseus had his sailors put in their ears. The wax prevented the sailors from hearing the Sirens’ song and saved them from being lured to their deaths, but it also left them free to remove the wax if that is what they wanted to do. This sort of intervention is an acknowledgment that the sailors’ freedom is important, but also that people are not always perfectly rational. As Carnegie Mellon economist (and psychologist) George Loewenstein recently explained to me, “When people have problems exercising self-control, restricting their choices can, in some cases, leave them more freedom to choose.”
On its face, Loewenstein’s claim may seem paradoxical – isn’t a person most free when presented with all her options and allowed to choose among them? But as the mythical Sirens make clear, there are some options that we are not truly free to resist. Without beeswax in their ears Odysseus’ crew would have been doomed; the wax gave them the freedom to choose.
Take the recent attempt by New York City Mayor, Michael Bloomberg, to forbid stores from displaying cigarettes to their customers. Just like the beeswax did not prevent the sailors’ from choosing to hear the Sirens’ song, hiding cigarettes from view doesn’t prevent people from buying them. But, as Loewenstein explains, it makes it easier for those who may be trying to quit to avoid being lured back in.
nussbaum bigthink
Overthrowing the czars
Beck’s central theme is that our country is being taken away from us by shadowy, menacing figures (though in the end, the most menacing figure of all seems to be tall, skinny and wearing a Nobel peace medallion). He usually focuses his general panic on specific, shifty-seeming characters. Often, because he wants to invoke Russia — and is apparently ignorant of both the history of Russia and the thoroughly ironic origins of the term’s use in the states — he calls these people czars.
March 17: Talking to guest Kevin Williamson of the National Review, Beck has his first discussion of the supposed proliferation of czars in the administration. But the only explicit complaint comes from Williamson, who says, “We have way too many people named czar in their job title.”
May 29: Beck makes his own first comment. “And, I’m so excited. We’re getting a new czar, everybody! Yes. Can we stop with the czars, please?” He continues to refer to the phenomenon almost daily over the summer. Obviously influenced by Jonah Goldberg’s book “Liberal Fascism,” Beck links the czars to early American progressives like Woodrow Wilson, and through him, naturally, to Hitler, Mussolini and Lenin.
July 15: Rep. Jack Kingston, R-Ga., introduces the ���Czar Accountability and Reform (CZAR) Act of 2009.” By September 16, the bill has 99 co-sponsors, including one Democrat.
July 30: House Minority Whip Eric Cantor writes an op-ed in the Washington Post accusing the Obama administration of making an “end run around the legislative branch of historic proportions.” Notes Cantor, sagely, “At last count, there were at least 32 active czars that we knew of, meaning the current administration has more czars than Imperial Russia.”
Sept. 12: Conservative protesters inspired by Beck head to Washington, D.C., where the czarist (and also, somehow, communist) power grab is a common theme of signs and chants.
Sept. 13: Senator Kay Bailey Hutchison — locked in a bitter Republican gubernatorial primary — writes essentially the same czar-fighting op-ed as Cantor, also in the Washington Post.
Sept. 16: On the floor of the House of Representatives, Rep. John Shadegg, R-Ariz., holds up a chart showing 34 “czars,” saying rather darkly, “I don’t think you know who these people are.” A number of the people on the chart were, in fact, confirmed by the Senate.
Sept. 29: Sen. Russ Feingold, D-Wis., announces plans to hold a hearing of his Judiciary subcommittee on the “czar” issue, which — by going bipartisan — officially jumps the shark.
Attacking Cass Sunstein
Though Beck’s diatribes against Obama’s czars have mainly hinged on the word’s association with Russia — and by tortured implication, communism — he’s also singled out specific enemies for periodic close-ups. A curious favorite this summer was Cass Sunstein, a legendary legal scholar, and Obama’s nominee to run a regulatory office in the White House. Before Beck was on the case, it was mainly progressives who disliked Sunstein, a well-known centrist.
July 22: Shortly after one conservative senator lifts his procedural hold on Sunstein,Cornyn, of Texas, places his own hold on the nomination. A spokesperson tells Fox News, “Sen. Cornyn finds numerous aspects of Mr. Sunstein’s record troubling, specifically the fact that he wants to establish legal ‘rights’ for livestock, wildlife and pets, which would enable animals to file lawsuits in American courts.” That very day, Beck mentions Sunstein for the first time, saying:
The latest nominee for the regulatory czar, a Harvard law professor, oh, and a guy Barack Obama knew in Chicago, is Cass Sunstein. He’s a friend of Obama’s. Wait until you meet this guy. He embraces the ever so popular senior death discount. That’s the idea that will calculate the lives of younger people as having greater value than those of the elderly. He also believes in giving legal rights to livestock, wildlife and pets. So, your pet can have an attorney file a lawsuit against you.
Aug. 7: Another senator anonymously places a hold on Sunstein’s nomination, slowing down the move toward a vote.
Aug. 31: Beck increases the frequency of his Sunstein attacks all month, eventually asking, “Is he just a control freak? What is this?”
Sept. 3: Beck writes on Twitter, “FIND EVERYTHING YOU CAN ON CASS SUNSTEIN, MARK LLOYD AND CAROL BROWNER”.
Sept. 10: By a 57-40 vote, the Senate confirms Sunstein. Several Democrats vote against him.
But as Thomas's presence on the court suggests, it is perhaps just as likely that the next justice -- or chief justice -- will be sympathetic to the less well-known but increasingly active conservative judicial movement that Epstein represents. It is sometimes known as the Constitution in Exile movement, after a phrase introduced in 1995 by Douglas Ginsburg, a judge on the United States Court of Appeals for the D.C. Circuit. (Ginsburg is probably best known as the Supreme Court nominee, put forward by Ronald Reagan, who withdrew after confessing to having smoked marijuana.) By ''Constitution in Exile,'' Ginsburg meant to identify legal doctrines that established firm limitations on state and federal power before the New Deal. Unlike many originalists, most adherents of the Constitution in Exile movement are not especially concerned about states' rights or judicial deference to legislatures; instead, they encourage judges to strike down laws on behalf of rights that don't appear explicitly in the Constitution. In addition to the scholars who articulate the movement's ideals and the judges who sympathize with them, the Constitution in Exile is defended by a litigation arm, consisting of dozens of self-styled ''freedom-based'' public-interest law firms that bring cases in state and federal courts, including the Supreme Court.
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.
rosen
The New York Times
April 17, 2005
The Unregulated Offensive
http://www.nytimes.com/2005/04/17/magazine/17CONSTITUTION.html?pagewanted=print&position
A media consensus has emerged that the retirement of Supreme Court Justice John Paul Stevens, the 90-year-old Ford-appointee who became the leader of the Court’s so-called ���liberal wing,”��is now imminent. The New York Times‘ Peter Baker has an article today on Obama’s leading candidates to replace Stevens, in which one finds this strange passage:
The president’s base hopes he will name a full-throated champion to counter Justice Antonin Scalia, the most forceful conservative on the bench. . . . The candidates who would most excite the left include the constitutional scholars Harold Hongju Koh, Cass R. Sunstein and Pamela S. Karlan.
While that’s probably true of Koh and Karlan, it’s absolutely false with regard to Sunstein, who is currently Obama’s Chief of the Office of Information and Regulatory Affairs. From the beginning of the War on Terror, Cass Sunstein turned himself into one of the most reliable Democratic cheerleaders for Bush/Cheney radicalism and their assault on the��Constitution and the rule of law.
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In 2002, at the height of controversy over Bush’s creation of military commissions without Congressional approval, Sunstein stepped forward to insist that "[u]nder existing law, President George W. Bush has the legal authority to use military commissions” and that “President Bush’s choice stands on firm legal ground.” Sunstein scorned as “ludicrous” the argument from Law Professor George Fletcher that the Supreme Court would find Bush’s military commissions without any legal basis. Four years later — in its *Hamdan* ruling — the Supreme Court, with Justice Stevens in the majority, held that Bush lacked the legal authority to create military commissions without approval from Congress, i.e., the Court (and Stevens) found Bush lacked exactly the “legal authority” which Sunstein vehemently insisted he possessed. Had Sunstein been on the Court then instead of Stevens, that decision presumably would have come out the opposite way: in favor of Bush’s sweeping claims of executive authority.
Worse still, in 2005, Sunstein became the hero of the Bush-following Right when, in the wake of revelations that the Bush administration was illegally eavesdropping on Americans, he quickly proclaimed that Bush was within his legal rights to spy without warrants in violation of FISA. Sunstein defended Bush’s NSA program by embracing the two extremist arguments at the core of Bush/Cheney lawlessness: that (1) the AUMF silently authorized warrantless eavesdropping in violation of FISA and, worse, (2) the President may have a plausible claim that Article II ���inherently” authorizes warrantless eavesdropping regardless of what a statute says.
In a March, 2006 *Washington Post* article, Sunstein solidified his credential as Leading Democratic-Law-Professor/Bush-Defender by mocking the notion that Bush had committed crimes while in office:
[Harvard Law Professor Laurence] Tribe wrote [Rep. John] Conyers, dismissing Bush’s defense of warrantless surveillance as “poppycock.” It constituted, Tribe concluded, “as grave an abuse of executive authority as I can recall ever having studied.”
But posed against this bill of aggrievement are legal and practical realities. Not all scholars, even of a liberal bent, agree that Bush has committed “high crimes and misdemeanors.” Bush’s legal advice may be wrong, they say, but still reside within the bounds of reason.
“The Clinton impeachment was plainly unconstitutional, and a Bush impeachment would be nearly as bad,” said Cass R. Sunstein, a professor of constitutional law at the University of Chicago. ��There is a very good argument that the president had it wrong on WMD in Iraq but that he was acting in complete good faith.”
Sunstein argues that Bush���s decision to conduct surveillance of Americans without court approval flowed from Congress’s vote to allow an armed struggle against al-Qaeda. “If you can kill them, why can’t you spy on them?” Sunstein said, adding that this is a minority view.
In 2008, Sunstein became the leading proponent of the Bush/Cheney-sponsored bill to legalize Bush���s warrantless eavesdropping program and to immunize lawbreaking telecoms, a bill which Obama — advised by Sunstein �� ended up voting for in violation of his pledge to filibuster. The same year, Sunstein provoked widespread anger among progressives by insisting (again) that investigations and prosecutions of Bush officials would be inappropriate and harmful.�� As summarized by Talk Left’s Armando, a long-time lawyer: ”Cass Sunstein has been defending the Bush Administration’s illegal actions and the Bush Administration’s preposterous claims for many many years now. This is who he is.” Hey, Left: doesn’t the thought of Supreme Court Justice Cass Sunstein make you tingle with “excitement,” just as Peter Baker said?
Even in domestic policy, Sunstein is far away from “the Left.” As Matt Yglesias put it last April after Obama nominated him to be head of White House regulatory policy: his “views on regulation are, if anything, somewhat more conservative than those of most Democrats.” In reviewing Sunstein’s domestic policy book, Nudge, Matt Stoller pointed out that several of his ideas are ��exactly 100% out of the conventional wisdom from the 1960s conservative movement,” that he steadfastly exempts the Pentagon and the Surveillance State from claims that the Government is too large, and even holds up Rahm Emanuel as a “liberal,” just to give a sense of how Sunstein views the political spectrum. As I discussed earlier this year, Sunstein also proposed a consummately creepy plan for the government to “cognitively infiltrate” online discussions which spout views that Sunstein deems false.
Along with *TNR*‘s Jeffrey Rosen, it was Sunstein who took a leading role in telling Democrats that John Roberts was a good choice for the Court. While Rosen has acknowledged he was wrong in his assessment — because Roberts turned out to be exactly the judicial radical which liberals said he was (while Rosen/Sunstein derided liberals for saying so) — Sunstein continued to praise Roberts and Sam Alito for their rulings. A former student of Sunstein’s at Chicago Law School, the very smart liberal blogger Kathy G, detailed Sunstein’s record in a comprehensive post, including his expressed affection and admiration for the executive-power-loving radicals of the Federalist Society which, among other things, produced John Yoo (she also notes Sunstein’s view that Roe v. Wade was “wrongly decided,” though he doesn’t favor its overruling). ��As she aptly put it:
I think Sunstein is an extremely ambitious man who basically would run over his own grandmother for a seat on the Supreme Court (well, he’d think seriously about doing so, anyway). Seeing how powerful the right wing has been in this country (at least until recently), especially regarding the courts, Sunstein must know that if he wants to be a Supreme Court justice, it would help if he were cozy with the right and accepted many of their basic ideas (such as judicial “minimalism,” which he has advocated), albeit with a more centrist spin. It obviously would also help his popularity with the right if he were to refrain from bruising conservatives’ tender feelings by pointing out such inconvenient truths as the fact that the current administration is a pack of dangerous, despotic war criminals.
Indeed, for all of these reasons, Sunstein has been praised by the Right as one of Obama’s best picks while consistently opposed by “the Left.”
Given all this, I have no idea what would possibly lead Baker to claim that Sunstein would be a favorite choice of the Left for the Court, though I can guess: the fact that the incoherent Glenn Beck — for some inexplicable reason — has made Sunstein a prime target of his deranged rantings about The Imminent Takeover of Leninism leads Baker to believe that Sunstein must be beloved by the Left. He most assuredly is not. Ironically, with this administration and in our political culture, the perception that a Sunstein appointment would “excite the Left” is probably the best way to ensure he is not chosen for the Court, as nothing is more fatal in Washington than being viewed as Liked by the Left. Just ask Dawn Johnsen about that, if you can find her (indeed, reflecting How Washington Works, Baker immediately says of the candidates he identifies as The Left’s Favorites: ”insiders doubt Mr. Obama would pick any of them now”). So it’s arguably productive to let this view of Sunstein stand, as false as it is.
The person who many believe is the leading candidate to replace Stevens — Obama’s Solicitor General Elena Kagan — has a record that is almost as bad as Sunstein’s when it comes to executive power abuses, civil liberties, and “War on Terror” radicalism. ��Unlike the Sotomayor-for-Souter substitution, which essentially maintained the Court’s balance, replacing Stevens with the likes of Cass Sunstein or Elena Kagan would move the Court dramatically to the Right, especially in the areas of executive power and civil liberties, where a fragile 5-4 majority has provided at least some minimal safeguards over the last decade.�� Whatever else one might want to say about Cass Sunstein — or, for that matter, Elena Kagan — it is simply false to claim that they would fit within the so-called “liberal” wing of the Court on matters of executive power and civil liberties. The replacement of John Paul Stevens could have a very radical impact on the Supreme Court, and it’s certainly not too early to begin combating pernicious myths about the leading candidates.
CPR:
Reinvigorating Protections for Health, Safety and the Environment
In September 2009, the Senate confirmed Professor Cass Sunstein to be Director of the White House OMB Office of Information and Regulatory Affairs – the so-called “regulatory czar,” so named because all major proposed regulations go through the office for approval.
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In the recent past, OIRA has been a place where regulations to protect health, safety and the environment go to die, or at the very least be weakened. It has served as a forum of last resort for special interests. Regulated industries unable to convince Congress not to pass laws protecting health, safety and the environment, and unable to persuade regulatory agencies to go easy on them while drafting regulations pursuant to those laws, have often taken their case to OIRA, where they have met with considerable success, particularly during the Bush years. As Director of OIRA, Sunstein leads an agency staff that has met routinely with special interests, sometimes exceeding the agency's mandate to do so. Research from the Center for Progressive Reform, released on the day of Sunstein's confirmation, demonstrates that this practice continued during the early months of the Obama Administration, before Sunstein was confirmed. In a blog post reacting to Sunstein's confirmation, CPR Member Scholar Rena Steinzor highlighted the concerns raised by OIRA's tilt toward industry -- at least so far as its OIRA meeting schedule suggests.
CPR Member Scholars played a prominent role in the confirmation process for Professor Sunstein. In a report issued in late January 2009, a group of CPR member Scholars expressed serious concern about Professor Sunstein’s support for the methods the Bush Administration used to weaken and defeat badly needed regulations.
goa;
Tuesday, September 8, 2009
Just when you thought the news about the Obama administration couldn���t get any worse, gun owners find themselves needing to rally the troops once again.
This time it’s the proposed “Regulatory Czar” who will be coming to a vote this week in the U.S. Senate.
His name is Cass Sunstein, and he holds some of the kookiest views you will ever hear.
For starters, Sunstein believes in regulating hunting out of existence. He told a Harvard audience in 2007 that “we ought to ban hunting.” And in The Rights of Animals: A Very Short Primer (2002), he said:
I think we should go further … the law should impose further regulation on hunting, scientific experiments, entertainment, and (above all) farming to ensure against unnecessary animal suffering. It is easy to imagine a set of initiatives that would do a great deal here, and indeed European nations have moved in just this direction. There are many possibilities.
If that’s all Sunstein believed, he would be dangerous and extreme, but not necessarily kooky.�� Unfortunately, when you look at WHY he wants to restrict hunting, this is where he goes beyond extreme.
In Sunstein’s world, animals should have just as many rights as people … and they should be able to sue humans in court!
“We could even grant animals a right to bring suit without insisting that animals are persons, or that they are not property,” Sunstein said on page 11 of Animal Rights: Current Debates and New Directions (2004).
Well, that’s a relief … he is at least willing to concede that animals are not persons! But he would still have animals suing humans, apparently, with more enlightened humans representing the cuddly critters.
Imagine returning from a successful hunting trip … only to find out that you’ve been subpoenaed for killing your prize. Who knows, maybe Sunstein would have the family of the dead animal serving as witnesses in court!
By the way, if you’re wondering what he thinks about the Second Amendment right to keep and bear arms, you won’t be surprised to know that Sunstein is a huge supporter of gun control.��
In Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America (2005), Sunstein says:
Almost all gun control legislation is constitutionally fine…. [O]n the Constitution’s text, fundamentalists [that is, gun rights supporters] should not be so confident in their enthusiasm for invalidating gun control legislation.
Hmm, what part of “shall not be infringed” does Sunstein not understand?
Imagine the power that Sunstein could have as the Regulatory Czar -- the nickname for the person heading the Office of Information and Regulatory Affairs (OIRA) in the White House.
As the Regulatory Czar, he could bring about changes in the regulations that affect hunting, gun control and farming.�� In short, he could make your life hell.
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Senator Saxby Chambliss (R-GA) objected to his nomination several weeks ago, preventing him from being unanimously confirmed.}: