Choices facing Obama's regulatory czar

Legal scholars with the Center for Progressive Reform issued today "The Choices Facing Cass Sunstein," an assessment of the writings of President Obama's nominee for the head of the Office of Information and Regulatory Affairs (OIRA).  The authors reviewed Prof. Sunstein's writing and report specifically on his staunch support for cost-benefit analysis and the "centralization of authority over regulatory decisionmaking in OIRA."  They conclude:

"The Obama Administration has a unique opportunity to fix the [regulatory] system, by recognizing the failings of cost-benefit.  But Cass Sunstein, for all his impressive credentials, seems unlikely to do that.  Weâve had this argument with him for some time now, and we expect to keep having it with him once he takes over at OIRA.  We hope weâll be surprised â that heâll turn over a new leaf once in office.  His record as an academic offers little support for the hope, however.  So while thereâs good reason to expect that EPA and the other regulatory agencies will once again put environmental, health, and safety interests first in their regulating, thereâs ample reason to worry that OIRA may yet be a barrier."

In "The Choices Facing Cass Sunstein," the CPR scholars outline eight major regulatory issues addressed in Prof. Sunstein's books and law reviews, and then offer the CPR response.  Issue 7 addresses the Professor's 2008 paper in which he asserts that the OSH Act of 1970 could be unconstitutional.   I blogged previously about his paper "Is OSHA Unconstitutional?" and CPR adds further insight:

"Far from being an agency that is running amok, drunk with power, and operating beyond its statutory mandate, OSHA is one of the most dysfunctional agencies in the regulatory system.  ...in the past decade, OSHA has promulgated only two regulations concerning workplace toxics.  Challenging OSH Act non-delegation grounds is not going to solve any of these problems at OSHA: if anything, it will serve to distract people from what really needs to be done to revitalize this crucial regulatory agency."

"...Raising the question about OSH Act's constitutionality was bad enough (particularly since the U.S. Supreme Court has already rejected this argument before,) but Professor Sunstein's suggestions for dealing with the non-delegation problem add further insult to this injury.   ...As Professor Sunstein even notes "over 5,000 Americans die each year in the workplace, and more than four million are injured or sickened by the conditions of their employment.  Surely steps could be taken to reduce these deaths, injuries, and illnesses.  We could not agree more.    ...This will not happen, however, if OSH Act is struck down, and Congress is forced to go back to the drawing board and have a 'more sophisticated and constructive' [Sunstein's words] debate about the proper content of occupational safety and health policy."

CPR's paper highlights 7 other issues on which Professor Sunstein has written, including

• the manipulability of cost-benefit analysis [he admits this happens]
• the senior death discount [he thinks it makes economic sense]
• the precautionary principle [he doesn't think it makes policy sense]
• centralization of regulatory authority in OMB [he likes it]
• responding to climate change  [he ponders whether it is in our nation's economic self interest]

It will be interesting to see which, if any, of these issues are raised at Professor Sunstein's confirmation hearing before the Senate Committee on Homeland Security and Governmental Affairs.  A hearing date has not yet been announced.