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In his new book, “Simpler: The Future of Government,” Cass Sunstein says that the act of choosing is a muscle that gets fatigued. The more choices people have to make, the more likely they are to make bad ones.
Sunstein used his office as a laboratory for his brand of "libertarian paternalism" -- his self-described and seemingly paradoxical approach to structuring prompts for people that promote their welfare by protecting them from their more self-destructive impulses.
Sunstein’s ‘Simpler Government’ Is Legally Suspect, Overly Secretive And Politically Unaccountable
n his new book, “Simpler: The Future of Government,” Harvard law professor Cass Sunstein writes about his nearly four years as President Barack Obama’s “regulatory czar.” As the Administrator of the Office of Information and Regulatory Affairs (known as “OIRA”) within the Office of Management and Budget, Sunstein oversaw the regulatory output of the many agencies of the executive branch. Rules on worker health, environmental protection, food safety, health care, consumer protection, and more all passed through Sunstein’s inbox.
Some never left. A group of Department of Energy efficiency standards, for example, have languished at OIRA since 2011, as has an Occupational Safety and Health Administration rule to finally reduce exposure to the silica dust that sickens workers every year.
In his revealing book, Sunstein tells us why: It is because he, Sunstein, had the authority to “say no to members of the president’s Cabinet”; to deposit “highly touted rules, beloved by regulators, onto the shit list“; to ensure that some rules “never saw the light of day”; to impose cost-benefit analysis “wherever the law allowed”; and to “transform cost-benefit analysis from an analytical tool into a “rule of decision,” meaning that “[a]gencies could not go forward” if their rules flunked OIRA’s cost-benefit test...
No theme more pervades Sunstein’s book than the idea that government transparency is essential to good regulatory outcomes and to good government itself.
The deep and sad irony is that few government processes are as opaque as the process of OIRA review, superintended for almost four years by Sunstein himself. Few people even know OIRA exists; in fact, the adjective that most often appears in descriptions of this small office is “obscure.” Even fewer people know that OIRA has effective veto power over major rules issued by executive-branch agencies and that the decision as to whether a rule is “major” — and thus must run OIRA’s gauntlet before being issued — rests solely in OIRA’s hands. Most people, I would venture to guess, think that the person who runs, say, the Environmental Protection Agency is actually the Administrator of the Environmental Protection Agency. But given OIRA’s power to veto rules, the reality is otherwise: In the rulemaking domain, the head of OIRA is effectively the head of the EPA.
A former high-ranking official with the United States Environmental Protection Agency (EPA) and current Professor of Law at Georgetown University charged yesterday that Barack Obama's White House staff has effectively and illegally blocked several new environmental and safety regulations. The former offical, Lisa Heinzerling, described their actions as "legally suspect, politically unaccountable, [and] preternaturally secretive."
...In a blog post published on April 4, 2013, Heinzerling charged that the Office of Information and Regulatory Affairs (OIRA) has refused to allow key pieces of environmental and safety regulations to be passed onto the President for his signature for several years. She based those charges on revelations in a recent book by the former "regulatory czar" of the Obama administration, Harvard law professor Cass Sunstein.
According to Heinzerling, Sunstein claimed in his book, “Simpler: The Future of Government,” that he was empowered to say no to members of the President's Cabinet, to put proposed rules onto a "shit list," to ensure that some rules never saw the light of day, and to require cost-benefit analyses be done when they weren't specifically required. The result of the latter was that agencies couldn't go forward if they could not pass OIRA's cost-benefit test, even in cases where such cost-benefit analyses are specifically prohibited by federal law, such as the federal Clean Air Act..
Thanks to Sunstein, though, the supermandate is back. By pressing agencies to adopt cost-benefit analysis as a decision-making framework wherever the law allows it, Sunstein’s OIRA has, by executive fiat rather than legislative enactment, imposed a cost-benefit supermandate wherever the law is ambiguous (which it often is). Newt Gingrich might be pleased, but those concerned with health, safety, and environmental protection should not be...