Henderson on Sunstein
By David Henderson
Fresh off a tour as head of President Obama’s Office of Information and Regulatory Affairs, Cass Sunstein, now a professor at Harvard Law School, shares his enthusiasm for simpler regulation in this new book. It is appropriately titled Simpler.
I opened the book with a big question on my mind: how can a smart person–and Sunstein obviously is–who had an up-close look at regulation during the first four years of Obama’s presidency, make a case for simpler regulation? Isn’t he aware that the Affordable Care Act, better known as Obamacare, ran to 2,400 pages and that the regulations to implement the act are now in the thousands of pages? Isn’t he familiar with the fact that the Dodd-Frank financial regulation law was 848 pages long and that it creates about 400 new regulations, many of them yet to be decided on? How can Sunstein both (1) make the case for simpler regulation and (2) justify those two sets of Obama administration regulations?
I won’t leave you in suspense. Sunstein more or less achieves goal 1, while he makes a half-hearted attempt–which ultimately fails–at achieving goal 2. I’ll highlight some of the book’s good aspects below. But he would have been much more credible had he not even tried to defend Obamacare and Dodd-Frank.
These are the opening paragraphs of my review of Cass Sunstein’s book, Simpler. My review appeared in the Fall issue of Regulation. I earlier highlighted the sections of my review that focused on Sunstein as old-fashioned coercer, not libertarian paternalist. So here I’ll highlight another section.
To his credit, Sunstein also shows himself to have been, at times, a deregulator. Unfortunately, in one of the best cases he cites of his proposed deregulation, he lost the policy argument. The Bush administration had banned Primatene Mist for asthmatics, but had scheduled the ban to begin on January 1, 2012. Primatene Mist contained chlorofluorocarbons (CFCs), which hurt the ozone layer. Sunstein pointed out that the ban would have left two to three million people without an over-the-counter substitute–the available substitutes all require a prescription and all are expensive. He noted that the CFC emissions from Primatene Mist were “small, even trivial.” So, he argued, the policy issue came down to a tradeoff between two health risks: the “small, even trivial” health risk to the world’s population from slightly more ozone, and the more substantial risk and expense to many American asthmatics. On that basis, he argued for extending the deadline. The Food and Drug Administration decided otherwise.
Sunstein also brings some sense to the hot-button issues of genetically modified organisms in food and the pesticide DDT. He points out that genetic modification “holds out the possibility of producing food that is both cheaper and healthier.” And banning DDT, he notes, “eliminates what appears to be the most effective way of combating malaria and may significantly compromise public health.” In discussing those topics, Sunstein shows what is wrong with the so-called “precautionary principle,” according to which people should not be allowed to go forward with an activity or product unless they can show that it is safe. The principle, he notes, is incoherent because it ignores tradeoffs. Sure, DDT might be risky for some, but banning it is even riskier for poor Africans.
Sunstein is keenly aware of his awkward position as a defender of simplifying regulations and as a defender of the Obama administration. His defense of Obama is feeble. He writes, “How can a former Obama administration official presume, or dare, to write a book about simplification?” He then writes, “To provide an answer, we need to make a distinction.” The distinction, he explains, is between simplification, which he favors, and reducing government’s functions, which he doesn’t. That’s an important distinction, but he never uses it to answer the question he himself asks. The reader is left thinking that, for Sunstein, simplification takes a back seat to expanding the federal government’s role in people’s lives.
And my conclusion:
In a fascinating chapter, “Invisible Gorillas and Human Herds,” Sunstein tells about an experiment in which people who were asked to watch a video of a basketball game and count the number of times the ball was passed totally missed seeing a gorilla in the midst of the players. The lesson for businesses, individuals, and governments is, he writes, “that we are all at risk of missing a lot that is happening in the background (and possibly even the foreground) of our lives.” Indeed.
That brings me to the 800-pound gorilla in the room–government–and a large irony in Simpler that Sunstein seems unaware of. In one passage, he notes that he delayed getting vaccinated for the dangerous influenza strain H1N1. Why do I highlight that fact? Because it illustrates a fundamental contradiction. Sunstein’s delay shows that even he is subject to the Style 1 thinking that he wants the government to “nudge,” or outright coerce, us out of. He even admits, just four pages earlier, that for many people, “including those who work in government, what may matter most is today, tomorrow, and next week.” Yet, he wants us to trust these selfsame government officials to make major decisions–about drugs, medical care, cars, and cigarettes, to name only a few–for us. If those government officials can’t be trusted to take the long view when their own well-being is at stake, why would Sunstein think that we can trust them to do so for a nation of strangers?
I admit to having many of the human failings that Sunstein writes about. But, in the choice between having a government of people with such failings make my decisions for me, and my being free to choose for myself, I choose freedom.