Cass Sunstein

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.

An op-ed by Cass Sunstein: President Donald Trump keeps claiming that the 2020 election was stolen from him, and was replete with fraud. He has spread the false assertion that voting machines made by Dominion Voting Systems Inc. deleted millions of pro-Trump votes and shifted hundreds of thousands to his victorious opponent, President-elect Joe Biden. Many Republicans agree that the presidency has been stolen. Polls show that about half of them think that Trump “rightfully won” the election, and a whopping 68 percent have concerns about a “rigged” process for counting votes. Various media outlets associated with the political right have fueled these beliefs. Social media are playing a major role. Wild ideas are circulating on Facebook, Twitter and elsewhere. In a recent interview, former President Barack Obama identified the contemporary media environment as “the single biggest threat to our democracy.” He added: “If we do not have the capacity to distinguish what’s true from what’s false, then by definition the marketplace of ideas doesn’t work. And by definition our democracy doesn’t work. We are entering into an epistemological crisis.” Obama’s claim calls to mind a brilliant 2002 essay, “The Crippled Epistemology of Extremism,” by the late political scientist Russell Hardin, who taught at the University of Chicago and New York University.

An op-ed by Cass Sunstein: President-elect Joe Biden just got an excellent suggestion about how to approach regulation of food safety, clean air, clean water, highway accidents and occupational health. It comes from a brief but illuminating passage in “The Promised Land,” the new memoir by his former boss, President Barack Obama: “Those of us who believed in the government’s ability to solve big problems had an obligation to pay attention to the real-world impact of our decisions and not just trust in the goodness of our intentions. If a proposed agency rule to preserve wetlands was going to lop acreage off a family farm, that agency should have to take the farmer’s losses into account before moving forward.” For that reason, Obama believed in cost-benefit analysis — not as a numerical straightjacket, but as a way to apply science and economics to measurement of the real-world impact of decisions by government agencies. Suppose, for example, that a proposed regulation from the Department of Transportation, requiring vehicles to be equipped with a new technology to reduce crashes, would cost $900 million. What would we get in return for that expenditure? How many lives would be saved? Would it be worthwhile? In 2009, Obama appointed me as administrator of the White House Office of Information and Regulatory Affairs, and he directed me to focus intensely on those questions. During my four years in government, Obama asked me to try to quantify both benefits and costs — and to make sure that for every regulation that I approved, the former would be higher than the latter.

An op-ed by Cass Sunstein:  Here are three popular myths about executive orders: They are a way to bypass Congress; They are an insult to the Constitution; They are new and a product of the imperial presidency. Even among serious and experienced observers, there is widespread belief in these falsehoods. That’s a big problem because President-elect Joe Biden is about to issue a bunch of executive orders. Citizens need to understand what they are and what they do. Executive orders often take the form of directives from the president to his subordinates. For example, Biden might tell the secretary of homeland security to adopt new immigration policies. Or he might direct his secretary of education to reverse President Donald Trump’s civil rights policies. Executive orders do not bypass Congress. Typically, they rely on statutes that Congress has already enacted. If Biden directs the Environmental Protection Agency to issue new regulations to reduce greenhouse-gas emissions, he will be relying on the Clean Air Act, which is already the law. In domains including education, occupational safety, Covid-19, clean water and civil rights, Congress has given plenty of power to executive agencies. Executive orders from the Biden administration would rely on the power that agencies already have. For that reason, they are hardly an insult to the Constitution. So long as what they order is within the bounds set by congressional enactments, they are a perfectly legitimate exercise of executive power — which is, after all, the power to execute the law.

An op-ed by Cass Sunstein: Facing urgent national challenges and probably a Republican-controlled Senate, President-elect Joe Biden will need to use executive actions to respond to problems such as Covid-19, economic recovery, racial equity and climate change. To understand how that works, it is essential to ask: What are executive actions, anyway? How do they happen? How fast, and how slow? The answers speak volumes about the operation of U.S. government, particularly but not only when Congress is gridlocked. Early in any new presidency, some of the most important initiatives begin with an executive order or presidential memorandum, by which the president issues a formal, public directive to those who work for him — typically members of his cabinet. For example, he might direct the secretary of Health and Human Services to take specific actions to control the pandemic, or he might order the Environmental Protection Agency to come up with a plan to reduce greenhouse-gas emissions from power plants. Orders of this kind get a lot of attention, but they merely start a process. It usually works like this: After a period of weeks or months, a department or agency comes up with a proposed rule, often consisting of hundreds of pages. The proposed rule outlines, and tries to justify, regulatory requirements that the agency plans to impose on the private sector, or perhaps on state and local governments. It might also contain alternatives — for example, more stringent and less stringent options.

An op-ed by Cass Sunstein: President-elect Joe Biden’s transition team has announced its four top priorities, and no surprise, climate change is among them. For that problem, the social cost of carbon is the straw that stirs the drink. It’s the most important number you’ve never heard of. That number is designed to reflect the monetary equivalent of the damage done by a ton of carbon emissions. For that reason, it is fundamental to decisions about the stringency of coming regulations from the executive branch — governing the fuel economy of cars and trucks, emissions limits for power plants, energy efficiency requirements for appliances and much more. If the social cost of carbon is set high, we’re going to see aggressive regulations, significantly denting the risk of climate change. If the social cost of carbon is set low — well, not so much. In 2009, the administration of President Barack Obama said that the social cost of carbon would be around $52 in 2020. In 2017, President Donald Trump and his appointees slashed that figure to somewhere between $1 and $6. The gap, surprisingly, wasn’t about politics, at least not in any simple sense.

An op-ed by Cass Sunstein: The current confusion and anxiety surrounding presidential vote-counting, with different states using different rules and procedures, make it natural to wonder: Wouldn’t it have been better to let the federal government oversee the process? The framers of the U.S. Constitution didn’t think so, for reasons of principle. Some of the foundations of their thinking can be found in the Federalist Papers, written mostly by Alexander Hamilton and James Madison (with a few by John Jay), among the greatest works in all of political science and the most important contemporaneous explanation of the framers’ thinking. Federalist No. 51, written by Madison, may be the best of the 86 essays, and it speaks, with great specificity, to the situation following this week’s national election. The least famous passage in that essay, and the most relevant today, is about one thing: federalism. It tells us a lot about how to think about vote-counting — and about the role of the president and Congress in that process. The essay is mostly a celebration of the system of checks and balances. As Madison put it, “Dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” The system of separated powers — Congress, the president, the judiciary — provides some of those precautions. But that was not nearly enough. Madison drew attention to “considerations particularly applicable to the federal system of America.” Ours is a “compound republic,” he wrote, in the sense that “the power surrendered by the people is first divided between two distinct governments.” There is the national government, and then there are the states, and this division creates essential security for “the rights of the people.” In important cases, “the different governments will control each other.” These are abstract ideas, but they bear directly on presidential elections, and they help explain the constitutional provisions that govern them.

An op-ed by Cass Sunstein: It’s Election Day, and there are already lawsuits challenging votes and voting procedures. Some of them are invoking the Supreme Court’s 2000 decision in Bush v. Gore, which effectively handed that year’s presidential election to George W. Bush. We should expect a lot more to come. Bush v. Gore is widely misunderstood. It rested on exceedingly narrow grounds. As the court put it, the key issue was “whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses.” The Florida Supreme Court had ordered a recount that would require votes to be counted in accordance with the “intent” of the voter. There’s nothing wrong with that. The problem was that Florida’s high court failed to lay down specific standards to ensure “equal application” of that principle. And indeed, the standards for accepting or rejecting ballots ended up varying widely, not only from one county to another, but even from one recount team to another. Back in 2000, many Florida voters used punch cards, and many of their votes produced only partly punched ballots, leaving those famous “hanging chads.” Should those ballots have counted? Different recount teams used different standards. That meant that whether a person’s vote would count depended on a kind of lottery — the specific recount team that was doing the counting. In the U.S. Supreme Court’s view, this was unequal treatment, and it violated the equal protection clause. At the same time, the court was careful to say that its ruling was limited to very rare and specific circumstances. “The recount process,” it said, “is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer.”

An op-ed by Cass Sunstein: For decades, U.S. government civil servants have had a degree of job security, in the sense that the president, and his political appointees, could not fire them merely because they were not sufficiently “loyal.” That would change under an executive order issued by President Donald Trump that is aimed at undermining the legal protection long given to many thousands of these career employees. On Jan. 19, 2021, they will apparently become closer to “at will” employees. If the president, or political appointees, want to fire them, they can. This is a horrible idea — more horrible even than it seems. A relatively independent civil service, protected against “at will” discharge, serves the national interest. I saw this close-up in 2009, when I joined the Barack Obama administration as administrator of the Office of Information and Regulatory Affairs, which oversees federal regulation in diverse areas that include clean air, clean water, food safety, homeland security, tobacco, health care, occupational safety, disability rights and transportation. OIRA has a staff of about 45 people, all civil servants. All of them had worked for George W. Bush until Jan. 21, 2009. In the blink of an eye, they were supposed to work for a new administration, with very different values and priorities and with a desire, in many cases, to reverse course as quickly as possible. I am sure that some of them thought that, in important areas, the Bush administration had it right, and that the newcomers were quite wrong. Who cared? Nothing got in the way of their professionalism, expertise, commitment to their jobs, and willingness to raise legitimate objections and concerns. In some cases, Cabinet heads were in a hurry to issue a new regulation — involving, say, air pollution, road safety or visas. Career staff knew that was probably not allowed under the law — and they were entirely unafraid to point that out.

An op-ed by Cass Sunstein: “The Untouchables,” the 1987 movie about gangsters and cops in Prohibition-era Chicago, was defined by these lines, spoken by police officer Jim Malone (played by Sean Connery) to his protégé, Eliot Ness (played by Kevin Costner): He pulls a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue! That's the Chicago way. Connery’s character was speaking of Al Capone. But his lines capture something more universal. If you are in some kind of fight, your best response might be to up the ante. If your opponents know that’s what you’ll do, they might back off — in which case you win. And if they don’t back off, they’ll get hurt — in which case you also win. Has the Chicago way become the American way? You could make the argument, at least in Washington. No one should speak of literal violence. But in multiple domains, we have witnessed an escalating political arms race, transgressing longstanding norms. In 2010, Republican Senator Mitch McConnell clearly set the tone with this remarkable statement: “The single most important thing we want to achieve is for President Obama to be a one-term president.” With respect to Supreme Court appointments, Republican efforts culminated in the sprint to confirm Amy Coney Barrett — on the heels of the Senate leadership’s refusal even to allow a hearing for Judge Merrick Garland, nominated by President Barack Obama in 2016. Something much worse is suggested by President Donald Trump’s claim that Joe Biden, his opponent in the presidential race, “should've been locked up weeks ago” for unspecified crimes. If Biden is elected president, and if Democrats gain control of the Senate, both the White House and the Democratic leadership will face a crucial decision on what to do about the spiraling conflict between the parties. This decision would be important in any period. But it has special urgency in light of the public-health crisis and the serious economic downturn produced by the pandemic — in addition to Democrats’ and progressives’ high-priority issues, including climate change, health care, economic inequality and tax reform. There would be three options. In the abstract, none of them could be ruled out.

An op-ed by Cass Sunstein: A well-functioning democracy requires at least two parties, armed with different ideas and approaches. If Republicans lose the White House to Democratic nominee Joe Biden, what ideas and approaches should they champion? Many Republicans might want to go back to basics and recover some of the foundations of conservative thought, as laid out by such thinkers as Edmund Burke, Michael Oakeshott and Russell Kirk. They might not be eager to seek advice from anyone who is not a trusted conservative. But one of the most clarifying accounts of the conservative tradition comes from a remarkable book, “The Rhetoric of Reaction,” written by the economist Albert Hirschman in 1991. Hirschman himself was no conservative. His aim was to offer a catalog of standard rhetorical “moves” by those opposed to social reform. But Hirschman paid careful attention to centuries of conservative ideas, and he was aware of the power of those moves. He had too much integrity to deny that, some of the time, those who make them are entirely correct. If Biden is elected and tries to deliver on his campaign promises, those on the right would find Hirschman’s catalog useful. Hirschman divided the objections to progressive reforms into three different categories: perversity, futility and jeopardy. Of these, the most effective is the perversity argument. The basic claim is that many seemingly appealing reforms are self-defeating; they hurt the very people they are supposed to help. Societies are systems, and if you interfere with one part of them, you might not like what happens.