AP Photo
Cass Sunstein, pictured during his tenure as director of the Office of Information and Regulatory Affairs, March 16, 2011
When I wrote a piece last spring called “The Biden Do Not Reappoint List,” it did not even occur to me to include Cass Sunstein on the roster of Clinton and Obama horribles such as Larry Summers and Mike Froman. The return of Sunstein seemed inconceivable.
For those who missed it, Sunstein under Obama headed a White House office called OIRA, which stands for the Office of Information and Regulatory Affairs. It was created late in the Carter administration and then used under Reagan as a choke point to kill health, safety, environmental, and labor regulations. If a regulation somehow made it out of an agency, OIRA provided one more chance for industry lobbyists to weaken it or kill it altogether.
But of all the heads of OIRA, Sunstein was the one who perfected the art of strangling regulations, using cost-benefit gambits and other devices. He actually bragged that under Obama, thanks to his efforts, there were fewer regulations issued than under Reagan or either Bush. He was especially the nemesis of EPA.
I wrote a long investigation of Sunstein’s career in government and academia in this piece for Harper’s. He is basically a University of Chicago theorist who tries, and fails, to reconcile free-market ideology with tepid liberalism. Thus he argues that we need only gentle “nudges” to fix markets at a time when capitalism run riot has produced everything from gross inequality to climate catastrophe to financial collapse. But I digress.
Biden is seeking to reverse the regulatory carnage of the Trump era, and there is an effort well under way to turn OIRA into its opposite. As proposed in a Prospect article last April, OIRA would become a White House office to promote and coordinate good regulation, not kill it.
The deputy director of OIRA has already been appointed, and she happens to be Sharon Block, the very author of that Prospect piece, and a strong proponent of that strategy.
A director of kindred views is expected to be named soon. Biden has already issued an executive order to reverse what OIRA does.
So with Biden’s policies and Sunstein’s record, why on earth is Sunstein telling colleagues that he is in line for a White House job? The answer, for those familiar with the academic term, is that Sunstein is what’s called a “trailing spouse.”
Sunstein’s wife, Samantha Power, has been named by Biden to head USAID. So Cass, who teaches law at Harvard, needs an appropriately distinguished Washington job. But please, keep this man far away from the seat of power. Give him a fellowship, say, at Brookings, where he can do only modest damage.
Update 2/9/21
We have now learned that Sunstein has indeed gotten a job with Biden. Weirdly, he has been appointed a senior counselor at the Department of Homeland Security. Once Sunstein’s wife was given a big job, one can only imagine the debates inside the administration on where to stash him.
Looking on the bright side, this at least keeps Sunstein far away from health, safety, and environmental regulation. And in his role as Chicago libertarian, he might even be a counterweight to the more authoritarian aspects of the DHS mission on immigrants and domestic surveillance. Or not.
