Letter to the Editor

To the Editor
Harvard Law Record

In your September 23, 2013, interview with Harvard Law Professor Cass Sunstein, who is also the former U.S. regulatory czar as head of the Office of Management and Budget Office of Regulatory Information and Analysis (OIRA) from 2009-2011, he explains his fascination with administrative law. He says “In administrative law, it might be whether some rule that is going to have massive effects on human health or on the economy is going to be validated. So it seemed to me that where theory hit human life most excitingly was in administrative law.”

In his job as regulatory czar, Sunstein’s office reviewed hefty health, safety and environmental standards, among others, often delaying them for months. These standards are issued by government agencies with the statutory responsibility and scientific expertise to prevent deaths on the highway or in the workplace, to reduce public and worker exposure to dangerous chemicals, to limit power plant emissions and other environmental pollution causing deaths, to protect the safety of the food supply, and much more.

Under presidential executive order, OIRA must review standards sent by agencies within 90 days, with a 30 day extension. Also if OIRA disagrees with an agency’s regulatory analysis of a proposed rule, it is required to explain in writing why the issuing agency analysis is deficient. But OIRA under Sunstein often delayed rules far beyond 120 days, sometimes stopping the rule completely, and often did not explain in writing why it disagreed with the agency. Many rules are weakened or delayed by OIRA because of industry objections.

That’s why OIRA’s nickname is the “black box” of agency rules.

An example during Sunstein’s reign is whether passenger cars would be required to have a rear backup camera to prevent parents or others from inadvertently killing or injuring small children particularly. Congress required a rule to be issued by 2011. It wasn’t and now won’t be until 2015 because of auto industry opposition (they are making bundles selling aftermarket cameras at exaggerated prices). But in the meantime almost 300 people are killed each year in backup crashes. Maybe OIRA chiefs like Sunstein should talk to Dr.Greg Gulbransen, a pediatrician who backed over and killed his own son Cameron.

In his book, Simpler, The Future of Government, Sunstein boasted he could reject requests of other Obama appointees, could decide that some rules “never saw the light of day,” and rely on cost-benefit analysis to make a decision rather than use it as an analytical tool. Mr. Sunstein may be “excited” by administrative law, but when he had the chance to make sure administrative law was used to make sure human lives were protected, he often failed the grade.

Joan Claybrook
Former Administrator of the National Highway Traffic Safety Administration and President Emeritus of Public Citizen

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