Cass Sunstein

An op-ed by Cass Sunstein: The U.S. Supreme Court is strongly committed to the “marketplace of ideas.” It tends to believe, in the words of Justice Louis Brandeis, that the remedy for falsehoods and fallacies is “more speech, not enforced silence.” If you believe that, you might also believe that if people lie about Covid-19, the 2020 presidential election, a politician, a journalist, a neighbor — or you or me — nothing can be done. Sure, you can answer with “counterspeech”: the truth. And that’s it. The problem is in many cases, counterspeech is ineffective. Lies lodge in the human mind. They are like cockroaches: You can’t quite get rid of them. This psychological reality raises serious questions about current constitutional understandings and also about the current practices of social media platforms, including Facebook, YouTube and Twitter, in trying to stop falsehoods. Ironically, those understandings, and those practices, may themselves be based on a mistake of fact — something like misinformation. In United States v. Alvarez, decided in 2012, the Supreme Court appeared to rule that lies and lying are protected by the First Amendment. The court struck down a provision of the Stolen Valor Act, which makes it a federal crime if you claim, falsely, that you won the Congressional Medal of Honor. According to the court, that provision is unconstitutional; the government cannot punish that lie.

An op-ed by Cass Sunstein: In the impressively detailed memorandum on “scientific integrity” that President Joe Biden recently released, one provision could easily escape notice. It’s an explicit endorsement of behavioral science — and it calls for much more of it. The provision requires the director of the Office of Management and Budget to produce, within 120 days, “guidance to improve agencies’ evidence-building plans and annual evaluation plans.” It calls out President Barack Obama’s Executive Order 13707, issued in 2015, which has guided the use of behavioral science by government officials. Biden’s memorandum instructs the OMB director to build on that order and to work toward better practices. According to the memorandum, those practices “might include use of pilot projects, randomized control trials, quantitative-survey research, and statistical analysis.” In general, the goal is to build on “approaches that may be informed by the social and behavioral sciences and data science.” There’s a strong signal here. Obama’s agencies, including his Social and Behavioral Sciences Team, used behavioral sciences to produce creative solutions to policy problems.

An op-ed by Cass Sunstein: It is already clear that President Joe Biden will be implementing a large number of his policies through executive action. The reason is equally obvious: Democrats control both houses of Congress, but with a 50-50 split in the Senate and thin majority in the House of Representatives, it will be challenging to enact ambitious legislation. Whether the issue involves climate change, Covid-19, occupational safety or civil rights, executive action might be the only game in town. Regulations are a primary vehicle for executive action, and they are often challenged in court. The federal judiciary now includes more than 200 judges chosen by former President Donald Trump. Won’t they be eager to strike down a lot of Biden’s regulations? It’s a fair question, but for the Biden administration, it’s less constructive to ask it than to take account of identifiable judge-made principles that regulators must respect. In recent years, the Supreme Court has issued two rulings that loom particularly large, and that could turn out to impose serious obstacles. The first of those rulings — a big setback for President Barack Obama — emphasizes the importance of cost-benefit analysis. The second — a big setback for Trump — underlines the need for agencies to give careful consideration to how disruptive a regulatory change might be to people who relied on the previous rules and requirements.

An op-ed by Cass Sunstein: It’s the most important number you’ve never heard of, and President Joe Biden is about to change it as he resets U.S. environmental policy. It’s the social cost of carbon, a figure that helps determine the stringency of federal regulations governing cars, trucks, power plants, refrigerators, microwave ovens, washing machines, vending machines and much more. The social cost of carbon is a monetary figure that is meant to capture the damage done by a ton of carbon emissions to health, property and agricultural productivity, among other things. (It has two siblings, the social of nitrous oxide and the social cost of methane.) Because federal agencies often base their decisions on cost-benefit analysis, a high social cost of carbon means aggressive regulation of greenhouse gas emissions and a low one will produce modest regulation. Under President Barack Obama, the social cost of a ton of carbon was set at about $50 by a technical working group.1 In 2016, the analysis of the working group was upheld in court. But in one of his first actions, President Donald Trump disbanded the working group and essentially slicedthe social cost of carbon to a range of $2 to $7. That low number played a large role in justifying significantly weaker regulation of emissions from cars, power plants and more. How did Trump come up with that number? He ordered federal agencies to consider only the damage done in the U.S., and to ignore the damage done to the rest of the world. If greenhouse gas emissions from power plants in the U.S. harmed people in Canada, France and South America, that harm would be ignored.

An op-ed by Cass Sunstein: Amid the flurry of new executive orders and memoranda signed by President Joe Biden on his first day in office, there’s a sleeper. It’s called Modernizing Regulatory Review, and it’s exceedingly important. Crucially, the memorandum affirms the long-standing process managed by the Office of Information and Regulatory Affairs, which includes a significant role for cost-benefit analysis. At the same time, it marks a dramatic departure from the approach favored by the administration of former President Donald Trump and identifies excellent directions for fresh reforms. Since 1981, both Republican and Democratic presidents have directed agencies to submit drafts of their major regulations to OIRA — part of the Office of Management and Budget — for review and scrutiny. Whether the issue involves environmental protection, food safety, homeland security, health care or transportation, agencies must allow OIRA to coordinate a process called interagency review, by which various parts of the federal government are permitted to comment on draft regulations. For regulations with an economic impact of $100 million or more, agencies must also produce a regulatory impact analysis, cataloguing the benefits and costs of regulations, and showing that the benefits justify the costs.

An op-ed by Cass Sunstein: Sedition! It’s an alarming accusation, and when it is made, it is often a serious danger to free expression. In many nations, including the U.S., the threat of sedition prosecutions has been used to criminalize dissent — to intimidate, and perhaps even imprison, people who strenuously object to what the government is doing. The Alien and Sedition Acts of 1798, with their restrictions on freedom of speech, are often taken as a shameful violation of constitutional principles. In some of its most notorious decisions, the U.S. Supreme Court upheld laws that forbid sedition, even when applied to political protestors. The Justice Department is now considering sedition charges against the mob that stormed the U.S. Capitol on Jan. 6 as Congress was voting to certify President Joe Biden’s electoral college victory. Some people have even called for prosecution, on charges of sedition, of former President Donald Trump, for inspiring and egging on the rioters before they invaded the Capitol. The crime of sedition has been defined in many different ways. A broad definition might extend to heated political protests, meant to cast doubt on the competence, good faith or legitimacy of the current government. A narrow definition might be limited to acts of violence, in which people physically attack public officials and public property in a clear effort to overthrow the current government.

An op-ed by Cass Sunstein: Can a former president be impeached? Can he be convicted? Those are two different constitutional questions. And President Donald Trump, impeached last week while still in office and potentially subject to conviction after departing, has obvious reason to offer a firm “no” to the second question. Under the Constitution, the House of Representatives is authorized to impeach a president, and then the Senate is authorized to convict him. But that doesn’t answer the questions about a former president. Let’s start with the text. Article I says this: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Article II says this: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Under these provisions, it should be clear that the House cannot impeach someone who has never held public office, and who merely aspires to do so.

An op-ed by Cass Sunstein: A lot of people are falsely shouting fire these days, and causing panics. Should they be punished? What about the platforms that host them? For some shouts, the answer is clearly yes. In 2019, Facebook’s Mark Zuckerberg called for national regulation, specifically emphasizing harmful content and the integrity of elections. Whatever you think of his particular proposals, he pointed in promising directions. In the last year, Twitter and Facebook have taken significant voluntary steps to combat misinformation, including warnings, reduced circulation and removal. Should the government step in to oversee those steps? Should it require them? Should it forbid them? Should it demand more? To answer these questions, we need to engage the First Amendment. The Supreme Court did that in 2012, offering something like a green light for falsehoods. In a key passage in the case of  U.S. v. Alvarez, the court invoked the totalitarian dystopia of George Orwell’s “1984” to declare, “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” The case involved Xavier Alvarez, an inveterate liar who falsely claimed that he had been awarded the Congressional Medal of Honor. That claim violated the Stolen Valor Act, which made telling that particular lie a crime. The court struck down the law, ruling that Alvarez’s lie was protected by the First Amendment.

An op-ed by Cass Sunstein: Jan. 6, 2021 is a day that should live in infamy — a day on which the fundamental institutions of the U.S. were suddenly and deliberately attacked. It will take a long time to understand fully why political passion crossed the line into an insurrection at the U.S. Capitol, but social science research illuminates part of the picture. Long-standing feelings of rage, humiliation, racism and hatred did not explode spontaneously. They were fueled and unleashed, above all by President Donald Trump. That’s what turned those feelings into action. The fundamental idea, brilliantly elaborated by the Duke University economist Timur Kuran, involves “preference falsification.” Kuran’s starting point is that for better or for worse, people’s desires, beliefs and values are often silenced by prevailing social norms. If you despise immigrants or hate Jews, you might keep your thoughts to yourself because you think that other people think differently — and perhaps would hate you if they knew what you think. Kuran’s claim is that when a lot of people silence themselves, the conditions are ripe for some kind of explosion. But precisely because of the self-silencing, it’s impossible to predict how, when or whether the explosion will actually occur.

An op-ed by Cass Sunstein: President Donald Trump is reportedly considering issuing himself a pardon, perhaps on his last day in office. Is he really allowed to do that? The best answer is simple: No. Begin with the Constitution’s text, which states that the president “shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” You might be tempted to read those words, as some specialists do, to mean that the president’s pardon power is unlimited, with the sole exception of impeachment. If that’s the right interpretation, there would be nothing wrong with self-pardons. But there is an immediate qualification: Any president would be impeachable if he used the pardon power in certain ways. Suppose, for example, that a president pardoned everyone who committed crimes at his behest and on his behalf. That would be an impeachable offense. This conclusion emerges clearly from the Virginia ratification debates of 1787, where George Mason objected to the apparent breadth of the pardon power, contending that it was a fatal defect in the proposed constitution. Mason urged that the president “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.”

An op-ed by Cass Sunstein: It’s been widely reported that President Donald Trump is considering granting a batch of pardons, possibly on his last day in office. Some of the people named as likely beneficiaries have not been convicted or even indicted for any crime. That raises a question: Does the president have the power to issue a preemptive pardon, one that would protect someone from prosecution in the future? Really? The answer, given by the Supreme Court in 1866, is yes. In the 1860s, Augustus Hill Garland was a lawyer in Little Rock, Arkansas, who strongly sympathized with the Confederacy. From 1861 until the end of the Civil War, he represented his state in the Confederate Congress. That exposed Garland to a future treason charge. In July 1865, President Andrew Johnson pardoned him, “for all offences by him committed, arising from participation, direct or implied,” in the rebellion against the U.S., with the proviso that the pardon would “be void and of no effect if the said A. H. Garland shall hereafter at any time acquire any property whatever in slaves, or make use of slave labor.” The Supreme Court held that the pardon was legitimate. Speaking broadly, it said that the Constitution “intended to, and in fact did, clothe the President with the power to pardon all offences, and thereby to wash away the legal stain and extinguish all the legal consequences of treason — all penalties, all punishments, and everything in the nature of punishment.”

An op-ed by Cass Sunstein: In the aftermath of President Donald Trump’s provocation of a riot at the U.S. Capitol, there is fresh discussion of the two avenues for removing a sitting president. The first is impeachment. The second is the 25th Amendment to the U.S. Constitution. There is no question that Trump’s conduct was an impeachable “high crime and misdemeanor.” The applicability of the 25th Amendment isn’t as obvious. The two grounds for removal are fundamentally different. Impeachment is for egregious abuse of the powers of the office. The 25th Amendment is concerned with some kind of impairment that renders a president unable to do his job. For present purposes, its key provision is Section 4: “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.” After this declaration is transmitted, the president’s only recourse is to submit his own declaration, saying that he is indeed able to do his job. At that point, the vice president and the majority of the principal officers of the executive departments (essentially the cabinet) can disagree. If so, Congress gets to decide the question.

An op-ed by Cass Sunstein: For President-elect Joe Biden, Santa Claus came a few weeks late, but he certainly delivered. Georgia’s Senate races appear likely to give Democrats control of both houses of Congress — a spectacular gift. I worked in the Barack Obama administration from 2009 to 2012, and I was able to see, close up, the staggering difference it makes when the Senate and the House of Representatives are controlled by the same party as the president. That was the case in 2009 and 2010, when Congress enacted not only the American Recovery and Reinvestment Act (the economic stimulus made necessary by the 2008 financial crisis), the Affordable Care Act, and the Dodd-Frank banking reforms — but also the Family Smoking Prevention and Control Act, the Credit Card Accountability Responsibility and Disclosure Act, and the Lily Ledbetter Fair Pay Act, which strengthened the available tools to combat employment discrimination in court. This was one of the most consequential periods of lawmaking in the nation’s entire history. Everything changed in 2011, when Republicans won a majority in the House. That meant that in 2011 and 2012, Congress wasn’t going to do much, especially if Obama favored it. For many issues, executive actions became the only game in town.

An op-ed by Cass Sunstein: Since the presidential election on Nov. 2, the rule of law has held. That is one of the most noteworthy, and inspiring, developments in the entire history of U.S. law. Whether they were appointed by Presidents Donald Trump or Barack Obama, by Presidents Bill Clinton or George W. Bush, federal judges have shown fidelity to the law by rejecting frivolous and evidence-free efforts by Trump to overturn former Vice President Joe Biden’s victory. Congress will meet on Wednesday to finalize that victory. Senator Ted Cruz of Texas, joined by at least 10 other Republican senators or senators-elect, is mounting a challenge, seeking to delay and perhaps to reverse the result. An obvious question is the role of Vice President Mike Pence, who serves as president of the Senate and can break deadlocked senate votes on ordinary matters, now that he has “welcomed” the senators’ electoral vote challenge. What is he permitted to do on Wednesday? Under the law, the simplest answer is: Not very much. His role is largely ceremonial. He has no power to overturn the results of a presidential election. A central reason is that the drafters of the U.S. Constitution and those who followed them were acutely aware of the risk of bias and self-interest in politics. They did not want the vice president, who might well have a rooting interest, to settle the outcome of a presidential election.

An op-ed by Cass Sunstein: President-elect Joe Biden has chosen Michael Regan, secretary of North Carolina’s Department of Environmental Quality, as administrator of the Environmental Protection Agency. If confirmed, Regan will have a distinctly challenging assignment. The reasons are threefold. The Donald Trump administration has scaled back so many environmental regulations; the agency has been demoralized; and Biden has an exceedingly ambitious environmental agenda. Regan will need to establish priorities for his first months. Here are five concrete ideas, the first three of which involve climate change, on which Biden himself is focusing: Greenhouse gas emissions from motor vehicles. Transportation accounts for about 28% of greenhouse gases in the U.S., and from 1990 to 2018, emissions from transportation have grown significantly. President Barack Obama imposed aggressive regulations on greenhouse gas emissions from both light-duty and heavy-duty vehicles; Trump scaled them way back. Biden promises to issue “a new fuel economy standard that goes beyond what the Obama-Biden Administration put in place.” To do that, the EPA will have to coordinate closely with the Department of Transportation, which has authority to issue fuel economy rules. It will have to comply with the Clean Air Act, which calls for standards that “reflect the greatest degree of emission reduction achievable,” considering technological feasibility, costs of compliance and necessary lead time.

An op-ed by Cass Sunstein: Suppose we could adopt, soon or right now, a strategy that would substantially reduce greenhouse gas emissions while costing people very little, or possibly even nothing? Not only that, it would not require bans or mandates, new regulations or carbon taxes. Consumers would retain freedom of choice. The very idea sounds fanciful, even nuts. Yet a number of municipalities in California have adopted such an approach, and it’s in widespread use in Germany, where it is having a major impact. It’s called “green by default.” The basic concept is that consumers should be automatically enrolled in renewable energy, with the right to opt out if that’s what they want to do. If the approach were adopted all over the U.S., it could potentially play a larger role in reducing emissions than seemingly more aggressive steps, such as energy efficiency requirements for household appliances. In the municipalities in California, hundreds of thousands of people are now receiving 100% renewable energy, and that means dramatic cuts in greenhouse gas emissions. All over Germany, automatic enrollment in renewable energy is also working, in the sense that most people are staying with cleaner energy sources.

An op-ed by Cass Sunstein: Donald Trump’s administration is doing an extraordinary amount of “midnight rule-making” — issuing regulations at the very end of the president’s four-year term. This will cause real trouble for the Joe Biden administration, which will have to try to unwind a lot of it. As of now, Trump’s Office of Information and Regulatory Affairs has a whopping 136 regulations under review, suggesting that there might well be a last-minute tsunami. Some of the last-minute regulations are genuinely terrible, such as new restrictions on granting asylum to people threatened with gang or gender violence. But others are more complicated, in the sense that they are likely to produce disparate reactions among Biden’s supporters — and potentially reveal significant fissures among progressives. A recent example comes from Trump’s Environmental Protection Agency, which has finalized a seemingly technical regulation directing how the agency does cost-benefit analysis. The changes have provoked outrage among those who see it a clear effort to make it harder for the EPA to protect public health and the environment. But if you read the rule carefully, you might hate it less, or like it more, than you expected. The rule is called “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.” Ignore the boring name and consider its three principal elements.

An op-ed by Cass Sunstein: Dec. 8, 2020, was “safe harbor” day — a day forward for President-elect Joe Biden and another step backward for President Donald Trump. It came and went without a constitutional crisis, punctuated by the Supreme Court’s late-afternoon refusal to overturn Biden’s victory in Pennsylvania. It was important because it means people can stop sweating over the next important day in the transfer of presidential power — Dec. 14, when the electors of the president and vice president actually meet and vote. But, first, what does the idea of a “safe harbor” mean? The answer comes from the Electoral Count Act of 1887, enacted after the most chaotic and vicious presidential election in U.S. history, between Samuel Tilden and Rutherford B. Hayes. The vote in 1876 was sharply contested and followed by a lot of sordid wrangling from which Hayes emerged victorious. The 1887 act was designed to ensure that nothing like the Tilden-Hayes fiasco happened again. More specifically, it was designed to ensure the primacy of the states, so long as they proceeded according to their own law. Section 2 of the Act is the safe-harbor provision.

An op-ed by Cass Sunstein: Republican senators are threatening to refuse to confirm President-elect Joe Biden’s choices for his cabinet. They appear to be especially unhappy about the selection of Neera Tanden to head the Office of Management and Budget, in part because she posted a number of tweets that were sharply critical of them. But they might choose to make the confirmation process a nightmare for several of Biden’s nominees. That would be a clear betrayal of the U.S. Constitution. Under the constitutional plan, the Senate is obligated to give the president a lot of discretion insofar as he is choosing the people who will be the working for him. (And yes, this objection applies to the many Democratic senators who voted against President Donald Trump’s choices, such as Eugene Scalia for Secretary of Labor.) To see why, let’s begin with the text. Article II, section 1 of the Constitution states, “The executive power shall be vested in a president of the United States of America.” At a minimum, that provision means that members of the president’s cabinet, and other high-level executive branch officials, are exercising authority vested in the president himself. As the Supreme Court recently said, such officials can be fired by the president — if and whenever he chooses. At the very least, it would be awkward to say that the president has broad power to remove his appointees — while also insisting that the Senate can freely reject the president’s choices about who should be working for him.

An op-ed by Cass Sunstein: The Supreme Court’s 5-4 decision on Wednesday night, striking down New York State restrictions on the number of people who can attend religious services during the coronavirus pandemic, is being taken as a signal of the emergence of a newly aggressive conservative majority. It’s easy to see why. The majority in the religion case included the court’s newest member, Justice Amy Coney Barrett, alongside the  most conservative of her colleagues: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. The dissenters included Chief Justice John Roberts, also conservative but more moderate in his voting patterns — who has been the swing vote in divided decisions for the last year. Notwithstanding the public reaction, the decision is hardly pathbreaking, and it doesn’t signal much at all. As a technical matter, it’s close to a yawner. If it is to be taken a signal, it should be of something more specific: the existence of a majority that will be highly protective of the rights of religious believers. The core of the case was a claim of discrimination against churches and synagogues. New York Governor Andrew Cuomo had issued an order stating that in certain pandemic-infected areas, deemed “red zones,” only 10 people could attend religious services. In less dangerous areas, deemed “orange zones,” the cap was 25.