Cass Sunstein

An op-ed by Cass Sunstein: If you are interested in the resolution calling for a “Green New Deal” that Democrats have introduced in the House, you might want to pay attention to one remarkable phrase in particular. It appears in the resolution no less than three times: “as much as is technologically feasible.”

An op-ed by Cass Sunstein: With his stunning plea for reconsideration of New York Times v. Sullivan – the landmark free-speech decision insulating the press, and speakers in general, from most libel actions – Justice Clarence Thomas has … performed a public service. Not necessarily because he’s right, but because there’s a serious issue here. To see why, imagine that a lawyer, a blogger, a talk-show host or a newspaper lies about you -- and in the process destroys your reputation. Your accuser might say that you are a pedophile, a drug peddler, an arsonist or a prostitute. In an hour, the lie goes around the world. If you count as a public figure, does the Constitution really mean that the law cannot provide you with any kind of redress? Thomas doesn’t think so.

Many legal analysts who watched Donald Trump declare a national emergency over immigration on Friday thought the president had weak legal grounds for doing so. In particular, many thought Trump hurt his own case by admitting, right there in the White House Rose Garden: “I didn’t need to do this, but I’d rather do it much faster.” ... “The legality of Trump’s decision will probably turn on highly technical provisions involving the use of funds for military construction projects,” wrote Harvard law professor Cass Sunstein, a former White House official under Barack Obama. ... Jack Goldsmith, Sunstein’s colleague at Harvard and a veteran of the justice department under George W Bush, said presidents have broad leeway in declaring emergencies. “‘Emergency’ isn’t typically defined in relevant law, presidents have always had discretion to decide if there’s an emergency, and they’ve often declared emergencies under circumstances short of necessity, to address a real problem but not an emergency as understood in common parlance,” Goldsmith tweeted.

An op-ed by Cass Sunstein: A full evaluation of the legality of President Donald Trump’s decision to declare a national emergency, and to order the building of a wall between the U.S. and Mexico, is best deferred until the appearance of a supporting memorandum from the Justice Department. But even now, four points are clear – and they are at risk of getting lost in the national discussion. 1. It is wrong to say that if Trump can declare a national emergency, he can necessarily order the Defense secretary to build a wall.

An op-ed by Cass Sunstein: The U.S. government should not regulate social media. It should stay far away from Facebook, Twitter, YouTube, Instagram and the rest. Any regulatory effort might well violate the First Amendment. Even if it turned out to be constitutional, it would squelch creativity and innovation in the very places where they are most needed.  Until recently, I would have endorsed every sentence in the above paragraph. But as Baron Bramwell, the English judge, once put it, “The matter does not appear to me now as it appears to have appeared to me then.”

An op-ed by Cass Sunstein: In his State of the Union address, President Donald Trump was entirely right to reject “new calls to adopt socialism in our country.” He was right to add that “America was founded on liberty and independence — not government coercion,” and to “renew our resolve that America will never be a socialist country.” Yet to many Americans, the idea of socialism seems to have growing appeal.  Representative Alexandria Ocasio-Cortez, one of the nation’s most influential new voices, is a member of the Democratic Socialists of America. Senator Bernie Sanders, a leading voice among progressives, has long described himself as a socialist. Since 2010, most Democrats have had a favorable attitude toward socialism. Recently, 57 percent of Democrats reported such a favorable attitude, well above the 47 percent who said they have a positive attitude toward capitalism. (By contrast, 71 percent of Republicans are upbeat about capitalism, and only 16 percent feel positively about socialism.)

An op-ed by Cass Sunstein: Would you be better off without Facebook? Would society benefit, too? A team of economists, led by Hunt Allcott of New York University, has just produced the most impressive research to date on these questions. In general, the researchers’ findings are not good news for Facebook 1 and its users. Getting off the platform appears to increase people’s well-being — and significantly decrease political polarization.

An op-ed by Cass Sunstein: Many social problems seem impossibly daunting, simply because they are so large. Poverty, immigration, cancer deaths, gun violence, climate change – in light of the magnitude of those problems, most imaginable reforms seem pretty small. In their book “Switch: How to Change Things When Change Is Hard,” Chip Heath and Dan Heath argue that the best response to big challenges is often to “shrink the change.” Instead of trying to solve a problem, dent it.

An op-ed by Cass Sunstein: By all accounts, William Barr, President Donald Trump’s nominee for the position of attorney general, is a lawyer of integrity, decency and competence. For that reason, his memorandum of June 8, 2018, raising serious constitutional doubts about Robert Mueller’s investigation, is baffling -- a genuine head-scratcher. It is important to understand exactly why. Barr has legitimate concerns. The legal definition of “obstruction of justice” is far from clear. Under federal law, a person is guilty of obstruction if he corruptly: (1) “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding,” or (2) “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” Barr is deeply worried about the meaning of (2).

An op-ed by Cass Sunstein: Does President Donald Trump have the legal authority to declare a national emergency, and order the military to build a wall between Mexico and the United States? We are dealing with a novel question here, which means that any judgment has to have a degree of tentativeness. But the best answer appears to be no.

An op-ed by Cass Sunstein: Whenever the Trump administration proposes to eliminate a regulation, many people are tempted to give it a standing ovation. Many others are tempted to boo and hiss. Sometimes it’s right to do one or the other. But with respect to the Environmental Protection Agency’s recent decision to rethink its controversial mercury regulation — well, it’s complicated and unusually interesting.

An op-ed by Stephen Mihm: How safe is Federal Reserve Chair Jerome Powell’s job? After President Donald Trump threatened to fire him several weeks ago, Powell upped the ante by declaring that he would refuse to resign if Trump tried to get rid of him, effectively drawing a line in the sand. ... The court also drew a hard and fast distinction between executive officers under the direct control of the president (e.g. cabinet heads) and the officers of independent agencies. And yet, as the Bloomberg Opinion columnist Cass Sunstein and his fellow legal scholar Lawrence Lessig observed in a 1994 law review article, the court “has not said what ‘good cause’ means. The Court has also failed to define “inefficiency, neglect of duty, or malfeasance in office … There is no controlling judicial decision on how ‘independent’ the independent agencies and officers can legitimately claim to be.”

An op-ed by Cass Sunstein: Suppose that in the next few weeks, a federal agency wanted to issue a new regulation that would cost the American people $5 billion in 2019. Under both Republican and Democratic administrations, the agency would be required to submit its regulation to the White House Office of Information and Regulatory Affairs, seeking its approval. OIRA, as the regulatory office is known, would be highly skeptical.  By any calculation, $5 billion is a huge amount. In fact, it would exceed the reported annual cost of all federal regulations approved by OIRA in some recent years.

An op-ed by Cass Sunstein: The Oscars were first presented in 1929. The Behavioral Economics Oscars, known throughout Hollywood as the Becons, did not appear until 2012. But as the iPhone is to the rotary phone, and as Lady Gaga is to Dean Martin, so are the Becons to the Oscars. After months of careful deliberation, the top-secret committee has finalized its choices. Here are the Becons for 2018.

An op-ed by Cass Sunstein: Most lists of the year’s best books reflect the personal tastes of those who produce them. This list is different. It’s entirely objective. What unites these six books is that nothing is rote or by-the-numbers about them. Each of them crackles with a kind of demonic energy.

Literally meaning “economic man,” the origins of the term Homo economicusare somewhat obscure—early references can be traced to the Oxford economist C. S. Devas in 1883—but his characteristics have become all too familiar. .... These insights led to the founding of a new field, behavioral economics, which became a household name 10 years ago, after Cass Sunstein and Richard Thaler published the best-selling book Nudge and showed how this new understanding of human behavior could have major policy consequences. Last year, Thaler won the Nobel Prize in Economics, and promised to spend the $1.1 million in prize money “as irrationally as possible.”

President Donald Trump’s executive actions aimed at slowing the pace of new regulation and eliminating existing ones (the first part was easier) continued in 2018. ...In effect, this amounted to “an impressive form of self-abnegation” of power, as noted by former Obama OIRA Director Cass Sunstein, since Trump’s own agencies can no longer rely on post-DOJ-memo guidance in court. While some left-of-center observers were dismissive, claiming that it “merely restated well-understood and otherwise uncontroversial black letter law,” the concern has been a longstanding one on an official basis in the eyes of the ACUS, going back decades before its 2017 report. A beneficial effect of the DOJ move is that it could induce other agencies to lean toward notice-and-comment rulemaking instead of exploiting the guidance loophole. Former OIRA Director Sunstein maintained that guidance can be “exceedingly helpful,” but deemed the Associate AG announcement a “welcome move” against guidance inadvertently behaving as a “regulatory cudgel.”

An op-ed by Cass Sunstein: Suppose that within the next few months, it becomes clear that President Donald Trump has committed impeachable offenses. Does the House of Representatives have discretion to decide whether to impeach him? Or does the Constitution require it to do so? The simplest answer, and the best, is that the Constitution requires the House to do so.

An op-ed by Cass Sunstein. After a tragedy, it is common for people to send “thoughts and prayers.” Skeptics argue that it’s much better to do something more tangible – to send money, to volunteer, or to press for reforms that will reduce future tragedies. In the context of gun control, the idea of thoughts and prayers has become a parody of ineffectual and even pathetic responses to horrific events. Some people decry thoughts and prayers as doing nothing – except to make bystanders feel better about themselves.