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Putting a hold on Cass Sunstein for the regulatory post

The Hill reports that Sen. Saxby Chambliss (R-GA) is blocking confirmation of Harvard law professor Cass Sunstein to head the OMB's Office of Information and Regulatory Affairs. As described in "Chambliss blocks regulatory pick over animal lawsuits," farm groups are also raising warning flags about Sunstein, and the American Conservative Union has created a StopSunstein website.

Sen. Susan Collins (R-ME) asked Sunstein about these hot button issues -- and the Second Amendment -- during his May 12 confirmation hearing before the Senate Homeland Security and Government Affairs Committee. Sunstein stressed his belief that his role at OIRA would be to implement the statutes, and explained his discussion of animal rights was theoretical and academic. We've transcribed the exchange, which includes this from Sunstein:

In terms of my own academic writings, the suggestion, which was meant as a suggestion for contemplation, was that under state law that prevents cruelty to animals, it might be that the enforcement by criminal prosecutors could be supplemented by suits by private people protecting animals from violations of existing state law, very much like under the Endangered Species Act, where people, rather than elephants, initiate lawsuits.

The idea was actually very conventional and a little boring, but maybe my rhetoric made it seem less so.

That's not such a great idea, using the litigation-inviting Endangered Species Act as a model for further legislation. But stopping his confirmation is a bum idea, too.

Sunstein is principled, smart, believes in cost-benefit analysis generally and has argued against adoption of the precautionary principle. He's a personal friend and former Chicago Law colleague of President Obama, which means he will at least be listened to. Who could possibly be better in this Administration from the standpoint of regulatory restraint?

Consider another regulatory thinker who's taken an influential position in the Obama Administration, former Georgetown law professor Liza Heinzerling, now a top aide to EPA Administrator Jackson. Heinzlerling, a favorite of the zealous regulators at OMB Watch, has argued against OIRA's use of cost-benefit analysis. Senator Chambliss, farm groups and the ACU should ask themselves if they'd prefer someone more along the lines of Heinzerling than Sunstein at OIRA.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.