STAFF NEWS & ANALYSIS
Supreme Court Decision Celebrated by Lovers of Big Government
By Daily Bell Staff - May 19, 2016

The Government Just Got More Powerful. (And That’s a Good Thing.) … Here’s the most important legal principle that you’ve probably never heard of: If a regulation issued by a government agency turns out to be ambiguous, the agency, not the court, gets to resolve the ambiguity. It’s called the Auer principle, after the 1997 Supreme Court decision that established it. … Few people have noticed, but on Monday the court made it clear that Auer is going to be with us for a long time. – Bloomberg

Cass R. Sunstein wrote this Bloomberg opinion article, and he is very happy about the recent Supreme Court ruling regarding Auer.

Sunstein is the academic who not so long ago proposed that government enter chat rooms and other ‘Net facilities by subterfuge in order to propose counter-arguments to “conspiracy” theorists.

He’s a philosophical authoritarian who unfortunately has a great deal of mainstream clout. His views on regulation and government power are influential in the US and around the world.

He was Obama’s head of the Office of Information and Regulatory Affairs until 2012. Here he reviewed, revised and updated all regulations and rules from the nation’s administrative agencies.

The regulations that went out under Sunstein were fewer than previous administrations but had larger monetary impacts. Some say the Obama administration asked him to resign fearing that his controversial views would have a negative impact on the reelection campaign.

Sunstein went back to Harvard where he still teaches law while writing books and papers. Supposedly, he is the single-most quoted professor in US legal literature.

He also has a reputation as a leftist. Comments regarding his books often emphasize the “paternalism” of his authoritarian approach.

For instance, he is the author of a famous book called “Nudge” that proposes government ought to move in small steps when influencing human behavior.

The idea is to provide “nudges” that promote positive behavior.

Sunstein’s theories draw on some fairly simple cognitive ideas. He believes that humans have two “cognitive systems.” System 1 is emotional and System 2 is deliberative.

At root, Sunstein’s work is focused on ways to help people moderate their impulses and act deliberately.

Government warning labels, for instance, perpetually activate people’s System 2.

Since people often give in to irrational, short-term urges, Sunstein is a big proponent of rules organizing people’s future benefits.

Retirement plans, social security and other government methodologies are preferable to letting people drift on their own.

Sunstein’s preference for government solutions has caused him controversy throughout his career, especially during the Bush years when he backed Bush’s authority to make war and to implement domestic spying via executive orders.

While Sunstein is portrayed as a leftist, his pro-Bush arguments show clearly that he is a fan of government power, whoever wields it.

In this Bloomberg article, he points out that Auer principle has been under “sustained assault from the conservative justices,” because it violates separation of powers.

Now that the Supreme Court has just decided not reexamine Auer – by refusing to hear a case that  would scuttle Auer – Sunstein believes it has become settled law.

He writes: “For the next president — whether Hillary Clinton or Donald Trump — there’s a big reason to celebrate. The rest of us should be celebrating along with them.”

More:

The Auer principle says that in these cases, and countless more, courts must respect the agency’s interpretation of its regulations, unless that interpretation is arbitrary or unreasonable. In areas that range from heath care to immigration to the environment, that gives the executive branch a lot of authority.

… But when regulations are ambiguous, do we really want unelected judges to sort out them out? As Scalia recognized in 1997, it’s a lot better to allow ambiguities to be settled by officials who have a degree of accountability (and who are likely to be specialists in the problem at hand).

Within this context, there are only two choices: Regulators either interpret their rules or they don’t.

But these parameters are the result of a severely limited perspective. There are many other ways to organize government and regulation.

Regulations are price-fixes. Price fixes inevitably distort economies and thus never deliver the anticipated result.

If Sunstein understood anything about economics,  he would realize that free-markets and competition are far better ways of adjusting social progress than regulatory dictates.

One of the criticisms of his books is that he spends an inordinate amount of time discussing how people ought to be “nudged,” but almost no time at all discussing who is to do the nudging.

Like the shadows on Plato’s caves, Sunsein’s elites are merely mechanical authorities who inevitably promulgate effective interventions.

Anyone who understands even the smallest amount about modern regulation knows that regulators are anything but dispassionate.

At best, they are enamored of the use of force to impel people to obey. At worst, they are virtual criminals, confiscating property, restricting freedom and generally making people’s lives miserable, even to the point of throwing them in jail.

The more that government force from the top-down is used to impel people, the more misery is spread.

Meanwhile, history shows clearly that marketplace competition influences people’s behaviors positively without the threat of jail and monetary penalties.

Conclusion: Sunstein has a cohesive intellectual approach. But like too many influential lawyers, his sociopolitical views are rooted in arrogance and ignorance. People like him – and Court decisions like the one putting Auer more firmly in place – are reasons why America is increasingly a failed state.

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  • Bruce C.

    Yes, Sustein is a bad dude. He is a classic ruling class elitist. As pointed out by Lawrence Lindsey in his book “Conspiracies of the Ruling Class” one of the big problems with the US government is that specialized agencies run by unelected and fairly unaccounatble technocrats have usurped Congressional responsibilities. Congress now controls only about 30% of what they should under the US Constitution.

    The Auer law is outrageous in that it enables the staus quo. I’m surprised that Justice Scalia thought it was a good idea, although I’m beginning to think his reputation for intelligence and Constitutionalism is hype. His inability (or unwillingness) to articulate that the purpose of the Second Amendment is to provide a means for the citizenry to protect themselves from government tyranny is another disappointing example.

    There is one ray of hope remaining considering the Auer law and that is to challenge the Constitutional authority of the Congress to delegate its own lawful responsibilities. The Constitution is clear that Congress cannot delegate its authority. Maybe the Supreme Court wouldn’t hear that case either, at least the current court, but if a few (or even just one) “conservative” justice can be placed they may. Challenging the current system of technocracy could make an enormous difference. We shall see.

    • Good points.

    • alaska3636

      Government tyranny is a term often reserved for the worst abuses of power in history, such as the socialists, the fascists and the communists. Rarely, if ever, is the regular ratcheting of abuse an issue, either in the official narrative or in the general persons’ psyche.

      This new abuse of government is called soft power and the dialectic is a tool for framing events in ways that progress the authoritarian agenda. The language of libertarians in terms of boiling frogs or the (supposedly false) fable of pig-catching are attempts at conveying the danger of soft power. The greatest libertarian of the 19th century used the language of replenishing the tree of liberty and I am starting to think that his checks-and-balances would have been better forfeited in favor of his generational sunset law: instead of limiting government power, simply void it every 19 years.

      • Bruce C.

        Sustein’s “nudging”.

        Interesting idea of term limits for government.

    • Goldcoaster

      Pretty disturbing book, Conspiracies of the Ruling Class. Governments job is to grow. And it has.

    • Haywood Jablome

      I hope and pray you are right. But, I really don’t have a ton of hope at this point. This form of government was designed for an informed and active people. I fear that the majority are neither….

  • alaska3636

    Here is the great Jefferson on the theory and application of sunset laws in a letter to Madison:
    “I set out on this ground, which I suppose to be self evident, “that the earth belongs in usufruct to the living”: that the dead have neither powers nor rights over it.

    “Then I say the earth belongs to each of these generations, during it’s course, fully, and in their own right. The 2d. generation receives it clear of the debts and incumberances of the 1st. the 3d of the 2d. and so on. For if the 1st. could charge it with a debt, then the earth would belong to the dead and not the living generation. Then no generation can contract debts greater than may be paid during the course of it’s own existence.

    “On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being.”
    http://press-pubs.uchicago.edu/founders/documents/v1ch2s23.html

    I recognize the pedantry of arguments like repealing murder laws every 19 years; however, the declaration of independence was supposed to be a universal recognition of negative rights of life, liberty and property, hence there is nothing to repeal regarding immutable natural (negative) rights.

  • Rich Faussette

    DB wrote:

    “For instance, he [Sunstein] is the author of a famous book called “Nudge” that
    proposes government ought to move in small steps when influencing human
    behavior.”

    This is interesting. NY Times magazine did a spread on Justice Ginsburg when she was appointed. She said you change the government one small step at a time. They used the word incrementalism in the article. Incremental “nudges.”

    In fact this quote from Time was easy to find.

    “The book also documents Ginsburg’s slow-and-steady advancement of
    women’s rights. “I think her incrementalism is in many ways a strategy,”
    says Carmon. “I think part of it has to do with the role of the law,
    law is about precedent. You don’t get to go in and thump your fist and
    say ‘I know what’s right.’” Ginsburg’s incrementalism led to major
    victories on behalf of pregnant women and single fathers, which set
    legal precedent to what she called a “policy of neutrality” when it
    comes to gender.”

    http://time.com/4093354/heres-why-ruth-bader-ginsburg-is-notorious/

    These two are birds of a feather playing the same game.

    • Sam Fox

      Nudges, increments, go slow, a little at a time…sounds like ‘progressivism’ to me. More like ‘regressive-ism’ I’d say.
      SamFox

      • Rich Faussette

        Incremental changes are employed to go under the radar so there is no reaction.

  • It just gets better and better doesn’t it

  • So lot of this argument sounds like Conservative ” Sour Grapes ” !

    • Rich Faussette

      “So lot of this argument sounds like Conservative ” Sour Grapes ” !”

      What’s your point?

      • Haywood Jablome

        He has no point. Typical leftist troll.

    • Webforager

      Your collectivist groupthink is showing. You may want to put that away before you scare the children.

  • Webforager

    People like Sunstein rationalize authority over others by making ridiculous claims to possess an ultimate measure of human action while creating neat little “systems” of human cognition. God forbid people should be able to exercise non-consent and peacefully pursue life, liberty and happiness.

  • jackw97224

    Sadly the politicians, judges and the masses still believe in error that there is factual evidence that the constitution and law apply to We The People, which is does not. See Lysander Spooner’s No Treason No. 6, The Constitution of No Authority. See The No State Project by Marc Stevens. And finally, visit the Zero Aggression Project by Perry Willis and Jim Babka.

  • AmericanGold

    God forbid that perhaps as many as half our citizenry do find Sunstein’s logic astute and instructive … those who believe the human race lacks divine guidance and is basically incapable of creating just and happy commerce amongst ourselves without the authoritative oversight of a select few persons unquestionably qualified to decide for the greater population; that these deciders are somehow endowed with exceptional wisdom and are benevolently placed in the highest seats of power to guide and protect us. All evidence is to the contrary.

  • Philosopher

    This guy creeps me out. And who is his wife? Samantha Powers. These two people think they know the best way for a lot of people to live their lives. That kind of arrogance is revolting. The approach to people in his book reminds me of the teachings of the behaviorist, B. F. Skinner. What were those techniques? Stimulus, reward. Negative stimulus is the lack of a reward. Positive stimulus is the signal for a reward. For someone that is, supposedly, educated to reduce human behavior to nudges or positive and negative rewards for the desired behavior shows a lack of vision, of empathy, of being able to see humans as capable of self direction and self fulfillment. Postive and negative stimuli are the methods used to train animals such as horses and dogs to serve their masters.

    That sums up Sunstein’s approach. He views people as nothing more than livestock. Animals to be herded, manipulated and controlled.

    I find that attitude vile.

    • Haywood Jablome

      And he stays pretty well hidden…which makes him even more dangerous!

  • Haywood Jablome

    First of all, the real issue here is that a group of unelected, unaccountable burocrats is making rules and regulations, much less interpreting them. How about we get rid of that unconstitutional mess. Second, as the DB points out, the whole right/left paradigm has been highjacked by progressives by changing the language. Somehow we now believe far left is communism and far right is fascism. They are branches of the same tree…total government. We need to get people to change their thinking. Far left is total government (no matter what cute term you use) and far right is no government at all. Until we clear up the terminology, we will continue this charade that the elections make any difference whatsoever in the direction (towards total government control). All we are doing is changing the speed.

  • r2bzjudge

    “People like him – and Court decisions like the one putting Auer more
    firmly in place – are reasons why America is increasingly a failed
    state.”

    Has it ever been a successful state? The first political contests, i have read, were pretty nasty. Since the ink was dry on the Constitution, it has been subject to people like, whomever. Politicians of either wing crave power.

    The Bill of Rights extended to everyone- except the slaves. Well, maybe not the native Americans, either. As new states joined the Union, there was a fight over whether they would be slave or free. Then a number of states in the South seceded when Lincoln became President. Then some 625,000 people died in a war promoted as preserving the union. Segregation followed in the south for nearly another hundred years, after slavery ended.

    There were trusts, then trust busters. The gilded age, then the progressive era.

    Both wings love big government, as long as big government is doing what benefits them.

    • Rich Faussette

      By your definition there are no successful states.

  • Pilgrim

    It all comes down to ethics & morality doesn’t it? So let’s re-visit a question we dealt with when Bill Clinton ran for president Does character matter?

  • Daniel McAdams

    Dr. Paul and I mention the Daily Bell in today’s Liberty Report: ‘Court Decision Grants Shocking New Government Powers’: http://bit.ly/1s7DJmi

    • Thanks for mentioning us! Much appreciated.

      You guys are great.

      Leaders of the liberty movement, always.

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