Cass Sunstein

An article by Cass Sunstein: What once seemed a paranoid fantasy is now looking plausible: Well behind in the polls, President Donald Trump is suggesting a possible delay in the 2020 election. Here’s what he tweeted on Thursday: "With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???" There are major ironies here. Trump has repeatedly downplayed the coronavirus pandemic and called for rapid opening of cities, businesses and schools. Now he is fearful that people cannot “safely vote,” and wants to delay the election? A key reason that Trump is doing so poorly in the polls is his response to the pandemic, which is widely regarded as an abysmal failure. Now he wants to use the pandemic as a justification for stopping the ordinary operation of the democratic process? To be sure, Trump’s stated concern is with mail-in voting, which, in his view, is a recipe for fraud. But existing evidence does not support that concern. It is difficult to avoid the conclusion that Trump’s opposition to mail-in voting, and his interest in delaying the election, are a product of one concern: It looks as if he is going to lose. Fortunately, the president is not a king, and he can’t delay an election simply because he doesn’t want one. The Constitution gives the relevant power to Congress. Article 2 states: “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” Since 1948, Congress has exercised its constitutional authority with a law that says plainly: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”

An article by Cass Sunstein: Some conservative legal thinkers speak of a “Lost Constitution” or “Constitution in Exile.” By that they mean the Constitution as it was understood before President Franklin D. Roosevelt’s New Deal helped form the modern regulatory state. Their Constitution in Exile would invalidate key parts of contemporary government. Some conservatives want to revive the long-dead “nondelegation doctrine,” which was once taken to forbid Congress from granting broad discretion to regulatory agencies. The Supreme Court made a strong movement in the direction of the Constitution in Exile in its most recent term, when it ruled that the Consumer Financial Protection Bureau may not be made independent of the president. The court stopped well short of upending the regulatory state. But it was just a preliminary skirmish. Bigger battles are brewing. Those who want to defend modern government — including Democrats if they regain power in November — will need to think hard about appropriate reforms if the Supreme Court begins to invalidate larger features of the U.S. government as it exists today. A Supreme Court bent on resuscitating the nondelegation doctrine would put important parts of the Clean Air Act, the Occupational Safety and Health Act and the National Traffic and Motor Vehicle Safety Act in jeopardy. Those who believe in the Constitution in Exile also have trouble with the idea of independent agencies, such as the National Labor Relations Board, the Federal Reserve Board, the Federal Communications Commission and the Federal Trade Commission. The president has limited control over the heads of such agencies; he cannot fire them simply because that’s what he wants to do.

For the past several weeks, Americans have been greeted daily with agonizing news about the coronavirus pandemic. Not simply from the anguish of the country’s spiraling cases and death tolls, but the incompetence of much of its political culture, too: Governors who flip-flop on mask-wearing, local officials who cave to pressure on public health measures, and a President who long ago stopped attending his pandemic meetings in favor of heaping abuse on his own public health agencies. But some thinkers are exploring how the country could still craft an effective pandemic policy, even in the absence of a federal one. Cass Sunstein is one of those thinkers, a longtime professor at Harvard Law School who has written extensively on the exploding area of cognitive science known as behavioral economics, and its implications for government policy. In 2008, Sunstein published the book “Nudge” along with co-author Richard Thaler, another leading scholar in behavioral economics. Together, Sunstein and Thaler envisioned a marriage of cognitive science and policy at various levels of American government that they dubbed “libertarian paternalism.” To take an example: If the cognitive bias toward “loss aversion” dictates that humans react less often to the prospect of reward than they do to the prospect of losing something they already have, such an insight could be applied to myriad aspects of policy—from “opt-out” schemes for organ donation at the DMV, to the Army’s interactions with the Taliban in Afghanistan. Fittingly, Sunstein ended up doing exactly that, serving in the Obama administration’s Office of Information and Regulatory Affairs from 2009 to 2012, where he sought out creative applications of behavioral economics to the White House policy portfolio. Lately, Sunstein has been advising foreign governments and other organizations on their own behavioral framework for addressing the pandemic, too. In an interview edited for length and clarity, Sunstein tells Washingtonian why pandemics are particularly suited to manipulating human biases, why New Zealand has tapped the cognitive power of fun, and what Texas might be able to teach the country after all.

An article by Cass Sunstein: In the last 15 years, the U.S. Supreme Court has had three swing justices, those most likely to deliver the decisive vote when the other eight are deadlocked. They are Sandra Day O’Connor, Anthony Kennedy and (now) John Roberts. They’re very different from one another, and there’s never been one quite like Roberts. A swing justice has outsized influence. Whether the issue before the court involves voting rights, free speech, presidential power or abortion, the swing justice is the person to whom lawyers most direct their attention. O’Connor, Kennedy and Roberts are hardly the only swing justices in the nation’s history. In the second half of the 20th century, other examples include Potter Stewart, Byron White, Lewis Powell Jr. and John Paul Stevens. While it is reasonable to say that swing justices are “in the middle,” it’s too simple to describe them as “moderates.” Swing justices have embraced dramatically different approaches to constitutional law. O’Connor, who joined the court in 1981, was a judicial minimalist. She attended carefully to the facts of particular disputes. She distrusted abstract theories about freedom and equality, and she liked to avoid sweeping rulings. With respect to free speech, for example, she favored narrow, case-by-case judgments, which would not reorient constitutional law in major ways. Because of her attention to detail and her openness to competing points of view, she often cast the decisive vote in important cases. She spoke quietly, but carried a big stick.

An article by Cass Sunstein: Does President Donald Trump want to deport everyone who is not an American citizen? Sometimes it seems that way. His administration recently announced that it may send home international students at colleges and universities that choose online learning in the fall, in an effort to reduce the risks associated with the coronavirus pandemic. The announcement is cruel. It’s also stupid. It is cruel to those students, many of whom are now living in the U.S., and who are suddenly threatened with deportation. It is stupid because one of the greatest U.S. strengths is its unparalleled institutions of higher education, which attract the world’s best students. Many international students go back to their own countries as friends of the U.S. and its people, keenly appreciative of the best American traditions and values. Many of them end up in positions of leadership at home, where they work closely and well with Americans. If you were an enemy of the U.S., and aimed to weaken it and to diminish its influence, you would be cheering steps to prevent international students from studying here. It’s no wonder that the new rule has prompted a lawsuit, filed on Wednesday by Harvard University and the Massachusetts Institute of Technology. But in some ways, the most fundamental problem lies elsewhere. The Department of Homeland Security announced its new policy on international students without using a process that guards against both cruelty and stupidity: public notice and comment.

An article by Cass Sunstein: A lot of Americans aren’t taking Covid-19 seriously. They aren’t wearing masks. They aren’t social distancing. They aren’t staying home. That’s one reason that the number of cases is spiking in the South and West. The problem is especially serious in Florida, Arizona, South Carolina, North Carolina, California, Tennessee and Texas, which are reporting the highest numbers of hospitalizations since the coronavirus pandemic started spreading across the U.S. in March. The result is likely to be many thousands of preventable deaths. Why are so many people refusing to take precautions? A key reason is their sense of their identity — their understanding of what kind of person they are, and of the groups with whom they are affiliated. It follows that appeals to adopt responsible practices are unlikely to work unless they take group identity into account. An alarming example: In Alabama, college students have been holding “Covid-19 parties,” including people who are infected and intentionally designed to see who else can catch the virus first. In the last decades, behavioral science has drawn attention to the immense importance of personal identity in motivating behavior. A central idea, pressed by Dan Kahan, a law and psychology professor at Yale University, is that people’s beliefs and understandings are often “identity-protective.” With respect to some risks — such as those posed by climate change, nuclear power and gun violence — people’s judgments about whether a danger is high or low are deeply influenced by their understanding of the group, or tribe, to which they belong. People ask, “Am I the sort of person who thinks and does this, or not?” The answer to that question can be decisive.

An article by Cass Sunstein: On rare occasions, the Supreme Court answers the most fundamental questions, going to the very heart of our constitutional system. In striking down the independence of the Consumer Financial Protection Bureau, the court today did exactly that. Since the founding itself — and with mounting intensity over the 40 years — the United States has been divided over two visions of the Constitution. The first insists that we have a “strongly unitary executive,” which means that the president must be in charge of all those who implement federal law. For those who believe in a strongly unitary executive, all departments, all agencies and all administrators work under one person: the commander in chief. Congress lacks the power to create “independent” agencies, headed by people whom the president cannot fire, and who are not subject to his will. According to the second vision, we have a “weakly unitary executive,” which means that Congress has the authority to restrict the president’s power to control some officials who implement federal law. If Congress wants to create independent regulators, such as the Federal Trade Commission, the Federal Communications Commission and the Consumer Financial Protection Bureau, it’s perfectly entitled to do that. Sure, the president must be allowed to carry out his constitutional functions, meaning that he has to be allowed to control the secretary of State and the secretary of Defense (and perhaps the attorney general). But for those who believe in a weakly unitary executive, Congress is allowed to make some regulators independent of the president.

An article by Cass Sunstein: The year: 1964. The location: the Oval Office. President Lyndon Johnson, an improbable advocate for civil rights, was meeting with Governor George Wallace, an implacable foe of civil rights. Wallace had requested the meeting. The specific topic was voting rights and the ongoing demonstrations on their behalf. He wanted the president to help stop them. After a little small talk, the governor began the conversation by alleging that many of the “malcontents” had been “trained in Moscow.” Johnson responded that all the protesters wanted was the right to vote. He added that “you can’t stop a fever by putting an icepack on your head. You’ve got to use antibiotics and get to the cause of the fever.” Wallace was disdainful. He said that it was impossible to “deal with street revolutionaries,” who could never be satisfied. You might give them the right to vote, but “then it’s jobs; then it’s distribution of wealth without work.” Increasingly frustrated, Johnson asked Wallace to think about the verdict of history, not about the current moment. He asked: "George, what do you want left behind? Do you want a great big marble monument that says 'George Wallace: He Built'? Or do you want a little piece of scrawny pine lying there along that hot caliche soil that says 'George Wallace: He Hated'?" Wallace was shaken. Later he said to an aide, “Hell, if I’d stayed in there much longer, he’d have had me coming out for civil rights.” Johnson’s key distinction — between the builders and the haters — is keenly relevant today, of course. Most important, it captures the split between those who are working for racial justice, including voting rights (and jobs), and the modern-day Wallaces, who in various forms are complaining of “street revolutionaries,” doubting the patriotism of the protesters, and emphasizing looting and acts of violence, as if they are all that matter.

"Bloomberg: Balance of Power" focuses on the intersection of politics and global business. Guests: PGIM CEO David Hunt, Ford COO Jim Farley, Harvard Law Professor Cass Sunstein.

An op-ed by Cass Sunstein: To reduce inequality and racial injustice, a lot of people are interested in making college available to all. The most ambitious proposals would cost a great deal of money — and taxpayers would have to foot the bill. Last week, the city of West Sacramento, California, did something fresh and creative — and cheap. It automatically admitted every one of its graduating high school seniors to a local two-year college, Sacramento City College. Here are the first words of the letter received by each graduate: “Congratulations on your graduation and your acceptance to Sacramento City College!” As Mayor Christopher Cabaldon put it, “Imagine no one in your family has ever gone to college, and you open up an envelope with a letter of admission.” He added that the new effort “will make it just as simple to go from high school to college as it is to go from kindergarten to first grade.” By itself, automatic admission costs almost nothing. It’s just a letter. But there’s every reason to think it will have a real impact. For many students, it will make all the difference, just because of its automatic quality. Mayor Cabaldon’s initiative builds on one of the most important findings in behavioral science: If you ask people whether they want to opt into something, you will get much lower participation rates than if you enroll them automatically, and ask them whether they want to opt out.

An op-ed by Cass Sunstein: The Supreme Court’s decision to strike down the Trump administration’s attempted rescission of the program known as Deferred Action for Childhood Arrivals is, above all, a tribute to the rule of law. It vindicates a defining idea in administrative law and a central check on the administrative state: Agencies must not behave arbitrarily. ... The most important words in Chief Justice John Roberts’s opinion for the 5-4 majority are that “particularly when so much is at stake,” the U.S. “Government should turn square corners in dealing with the people.” The court’s conclusion was that the Trump administration failed to engage in reasoned decision-making. It did not turn square corners.

An article by Cass Sunstein: Does the Supreme Court’s decision in Bostock v. Clayton County, Georgia, forbidding employment discrimination on the basis of sexual orientation, also spell the end to affirmative action? That may sound like a crazy question. But Justice Neil Gorsuch’s opinion, emphasizing the need to follow the “original public meaning” of legal texts, gives a real boost to opponents of affirmative action. In fact, a passage in that opinion seems as if it was explicitly meant to provide that boost. Here’s the background. The key provision of Title VII of the Civil Rights Act of 1964 makes it: "unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin." That provision was the governing text in Bostock. It is also the foundation for legal challenges to racial preferences in employment, even if they take the form of voluntary affirmative-action programs. According to those who challenge racial preferences, discrimination is discrimination — period.

An article by Cass Sunstein: In the early 1980s, I was one of four law clerks for Justice Thurgood Marshall, probably the greatest civil rights lawyer in U.S. history and the first African American to be appointed to the Supreme Court. In a discussion with our boss, we expressed concern that the high court might overrule its Miranda decision, which requires police officers to provide the famous warnings to people in custody. We thought that the Miranda warnings were an essential means of preventing official abuse in general and of protecting African Americans in particular. Marshall looked at us with amusement. This is what he said: “Miranda? I like Miranda well enough. But not all that much. When I lived in New York City, a long time ago, I had a nice, long talk with head of a local precinct about police misconduct and the United States Constitution. Here’s what he did the next week. He got all his cops in a big room, and said, ‘If I hear that any of you has mistreated anyone in New York – beaten him up, knocked him down, violated his civil rights, targeted him because of his race, anything like that – you’re fired. Immediately. On the day.’” Marshall took a long pause. And then he thundered: “And that’s a lot better than Miranda!” In the 1990s, I lived on the south side of Chicago, and my car was stolen. A police officer recovered it. As we talked about what had happened, he asked me, “And what do you do for a living?” I responded, “I teach constitutional law.” He looked displeased. I thought I knew why, and asked, “Oh, does the Fourth Amendment give you any trouble?” (The Fourth Amendment forbids unreasonable searches and seizures.) His answer: “Oh, no, not at all. I didn’t violate the Fourth Amendment unless I say that I violated the Fourth Amendment, and I never say that I violated the Fourth Amendment.”

An article by Cass Sunstein: Would you adopt a fox? The prudent answer is “no”; foxes are wild animals. Or are they? In something out of science fiction, new research suggests that we are now starting to see two different kinds of foxes: the wild and the domesticated. The research tells us something about mammals in general, including the beloved Canine Lupus Familiaris (also known as the dog) and Homo Sapiens. It is also uplifting – a hopeful sign in these dark days. The relevant research, by Kevin Parsons of the University of Glasgow and colleagues, has a daunting title: “Skull morphology diverges between urban and rural populations of red foxes mirroring patterns of domestication and macroevolution.” But the title contains a bombshell. For some time, urban populations of red foxes have been domesticating themselves in London and its environs. True, they’re not dogs, but they have been moving in that direction. In areas around London, fox populations are looking different from their rural counterparts. Their snouts are shorter and wider. The differences between males and females are less pronounced. Their brains are smaller. These changes are characteristic of a process identified by Charles Darwin and known as the “domestication syndrome.” If you compare dogs with wolves, you will see the same kinds of differences that are now separating urban foxes from rural ones.

An article by Cass Sunstein: What pushed former Defense Secretary James Mattis over the edge, to denounce President Donald Trump, in the strongest possible terms? Only the former general knows for sure, but a clue is provided by the title of his statement: “In Union There Is Strength.” Another clue is provided by the most important words in his text: “Donald Trump is the first president in my lifetime who does not try to unite the American people — does not even pretend to try. Instead he tries to divide us.” With those words, Mattis is signaling a national challenge that goes back to the founding era, that almost derailed the American project from the very start, that helped start the Civil War, and that has had to be managed with great care during every national crisis. Shortly after the American Revolution, the new nation was at grave risk of falling apart. To many people, diverse affiliations and identities made it difficult to speak of the “United States of America.” Under the Articles of Confederation, intense loyalty to states, and competition among states, seemed to outstrip loyalty to the nation. Prominent politicians fueled the divisions. The Constitution was designed to solve that problem. You can see what its framers had in mind if you look an early draft of the document.

An article by Cass Sunstein: With widespread grief and protests over the killing of George Floyd, the U.S. is badly in need of national leadership. Ideally, the president, or someone with a great deal of stature and trust, would provide it. In an analogous time, Robert F. Kennedy did exactly that, with what is generally considered one of the most moving speeches in U.S. history. Like the Gettysburg Address, which it resembles, it is elegiac — and short. And as with Lincoln’s great speech, every word rings true. But if you listen to it today, you would be right to feel some discomfort. For all its gentleness and sensitivity, it is missing something important: an acknowledgment of the past and present effects of white racism. The day was April 4, 1968. Kennedy was in Indianapolis, running for the Democratic nomination for president. Martin Luther King Jr. had just been killed. RFK announced King’s assassination to an audience that was largely African-American. People were worried about riots. Kennedy began simply: “Martin Luther King dedicated his life to love and to justice for his fellow human beings, and he died because of that effort.” He addressed the question of the proper response: “For those of you who are black — considering the evidence there evidently is that there were white people who were responsible — you can be filled with bitterness, with hatred, and a desire for revenge.”

An article by Cass Sunstein: President Donald Trump’s executive order targeting social-media companies raises tough questions about presidential power, presidential bullying and freedom of speech. To understand it, we need to start with what’s clear, and then explore what’s not. An executive order is not a law. It doesn’t bind the private sector. It doesn’t require Twitter or YouTube to do anything at all. Many executive orders are orders from the president to his subordinates, directing them to do things. That’s what this one is. With respect to the communications market (of which the social-media companies are an important part), the most important federal agency is the Federal Communications Commission, an independent agency not subject to the president’s policy control. The executive order signed by Trump on Thursday respects the FCC’s independence. It doesn’t direct the FCC to take action. Some passages of this executive order read like a fit of pique, or an attempt at punishment. Indeed, the order does not obscure the fact that it is, at least in part, a response to behavior by Twitter that Trump didn’t like: adding fact-check labels to two misleading presidential tweets about voting by mail.

Cass Sunstein, Bloomberg Opinion columnist and Harvard Law professor, discusses his column, "Twitter Strikes Balance Between Liberty and Lies." Hosted by Lisa Abramowicz and Paul Sweeney.

An article by Cass Sunstein: President Donald Trump says a lot of things on Twitter that aren’t true. Twitter has a set of formal policies designed to combat misleading information. This week, Twitter applied its policies to two of Trump’s tweets, in which the president made misleading claims about voting by mail. Trump responded with a threat: "Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen." The threat had an immediate effect on the stock of Twitter Inc.; it fell dramatically afterward. To understand the controversy, we need to step back a bit. Social-media platforms such as Twitter, Facebook and YouTube are not subject to the Constitution at all. The First Amendment, which guarantees freedom of speech, applies only to the government. If Twitter denied a platform to Trump, or if it allowed only Republicans or only Democrats to have access to its platform, it would not be violating the Constitution. Nonetheless, Twitter has good reason to allow something like a free-for-all. Its whole purpose is to permit plenty of diverse people to say plenty of diverse things. That’s its business model. And if it’s providing a public service, as I believe that it is, it should not favor any particular side. It should certainly not appoint itself as the truth police.