Eight years on, the Supreme Court's revival of the president's removal power in Free Enterprise Fund v. PCAOB offers important lessons for originalism.
The news that Cass Sunstein returns to Harvard Law School from his position as policy chief at the Office of Management and Budget provoked a divided response. On his policy legacy, the left and right clashed, with partisans both attacking and praising his policies. For many Beltway leftists Sunstein had done “untold damage” by the number of health and safety rules his office killed. (See Reagan biographer Steven Hayward for his gleeful observations.)
This mirrors the reaction of conservative legal scholars I had asked years ago about his work at OMB, which they faintly praise. Even Darrell Issa, Republican Chairman of the House Oversight and Government Reform Committee, remarked that “Sunstein appeared to recognize the harm overly burdensome regulations inflict on economic growth and job creation — although he was not able to stop the tsunami of regulations enacted by the Obama administration.”
But this conflicted response reveals a fundamental ignorance of Sunstein’s work and his ultimate purposes. Both critics and reluctant supporters focus on his deference to market forces. But his appreciation of the free market should not hide the fundamental problem with his work for those who affirm American limited-government constitutionalism. As Joseph Postell notes, in a lengthy review essay of his work, “His pragmatism is a convenient cover for effacing the foundational debates of our republic (link no longer available).” If both conservatives and liberals miss these “foundational debates” they miss the significance of Sunstein’s work. His former University of Chicago Law School colleague Barack Obama surely has not overlooked it. Indeed, seeing Sunstein’s radicalism helps us to place in context Obama’s alleged pragmatism.
Sunstein has written among the most radical critiques of the American Constitution ever espoused. While not a Marxist revolutionary, his criticism is scarcely less transformative. His project of radicalizing the New Deal and the work of Progressives is captured in the subtitle to his book The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever. But the book that is even more explicit is After the Rights Revolution: Reconceiving the Regulatory State (1993).
Sunstein claims to present the regulatory measures of bureaucratic government “in a way that is fundamentally faithful” to the American Constitution. The book’s second sentence acknowledges that “Modern regulation has profoundly affected constitutional democracy, by renovating the original commitments to checks and balances, federalism, and individual rights.” That transformation of basic constitutional principles “culminated in the rights revolution of the 1960s and 1970s”—meaning the Great Society and post-Watergate programs. Sunstein’s task is to reinterpret the regulatory regime “in a way that is fundamentally faithful to constitutional commitments and promotes, in a dramatically different environment, the central goals of the constitutional system—freedom and welfare.”
Sunstein weaves three “more particular goals” throughout the book: 1.) the practical one of combating the Reagan and Thatcher reforms, which were based on market principles and “private right,” 2.) defending the history of government regulation in America, and 3.) proposing “a theory of interpretation that courts (and administrative agencies) …. might invoke in order to improve the performance of modern government.” Sunstein emphasizes that he wishes to save the “basic commitments of the American constitutional system,” not the text of the Constitution or the structure it sets forth. Of course the “rights revolution” has transformed the meaning of those commitments, so we are left in a universe that is open to Sunstein’s creative interpretation. As Postell observes, “The final triumph of postmodernism is to avail itself of modern or pre-modern justifications whenever they come in handy, and disparage them when they don’t.”
This post-modern perspective is richly abundant throughout After the Rights Revolution. If you thought freedom of speech is a “basic commitment” of America, think again: The “fairness doctrine” and even more extreme measures are justified to protect citizens from injuries to their “character, beliefs, and even conduct.” (For Sunstein’s regulatory schemes for the internet, including schemes for requiring links and pop-ups to alternative points of view, see Edward Erler’s Claremont Review of Books essay, “Liberalchic.gov” (link no longer available)) In a regime of equal opportunity, racial preferences remedy market failures that permit employment discrimination. Of course property rights yield to the common good, as determined by political arrangements on behalf of the general welfare. Thus, the Civil War was fought not to affirm the founding principle of self-government (not to mention the quaint notion that each man owns himself) but to herald the regulatory regime of the New Deal.
The guidance for this new understanding of “basic commitments” can be found in the enlightened courts and bureaucracy. Political scientists have always had a problem with the messiness of the regime of the Federalist Papers (link no longer available), with its multiplicity of interests and separation of powers. The ensuing legislation is too often a mess of compromises, which can be made “rational” through devices such as non-enforcement, exemptions, mandates, and creative interpretation, as we have recently noted. But Sunstein seeks a more comprehensive solution, a “postcanonical legal universe,” which would feature more “uniformity and coherence” than the current regime permits. Statutory construction would proceed with this goal in mind, of honoring “the New Deal reformation and the rights revolution.” After all, “When a national moral commitment is involved, the case for uniformity is much stronger.” Thus protection of “disadvantaged groups” trumps older understandings of those “basic commitments.” We see the centrality of blacks for this revolutionary interpretation of America. Their past (and ongoing) oppression justifies the regulatory apparatus’s sovereign interpretations.
The privileging of the regulatory state is abundantly clear in the last sentence of the book, which refers to “the diverse but ultimately compatible purposes of constitutional government and regulatory legislation.” There we have it—constitutional government and regulatory legislation set on the same plain.
In his more recent Nudge: Improving Decisions About Health, Wealth, and Happiness (2008). Sunstein and coauthor Richard H. Thaler prescribe how setting a menu of choices can lead to better outcomes and yet preserve freedom. Placing the fruit in a more prominent place in the school cafeteria line, making enrollment in retirement savings plans the automatic default, and offering a range of marriage options are among the choices they open up. Of course some of the choices are those preferred by government or the other institution creating the menu—a “libertarian paternalism” or liberal fascism. An astute mother pointed out that this is the way parents get kids to wear the proper clothing or eat the right foods: Give them the illusion of choice. (See also Andrew Ferguson, “Nudge, Nudge, Wink, Wink,” Weekly Standard April 19, 2010. ) But Americans don’t want the illusion of freedom; they want freedom, and they won’t sell their birthright for a pottage of regulation.