Harvard Magazine in its current Jan/2015 issue has an article on Cass Sunstein, Walmsley University Professor at Harvard Law School, which gives some insight into the intellectual background and political perspectives of the current trends in regulation and administrative law. Cass Sunstein and Barack Obama were both professors of law at the University of Chicago. Sunstein led the White House Office of Information and Regulatory Affairs from 2009 to 2012, which he described as “the cockpit of the regulatory state.” The full article can be found at The Legal Olympian.
To address the crisis of the Great Depression, the New Deal transformed the system of checks and balances by increasing the power of the president, reducing the clout of the federal judiciary, and increasing the size of the national bureaucracy so that its power rivaled that of Congress. The New Deal transformed the system of federalism by transferring power from the states to the federal government. It redefined individual rights, from “rights to be free from government intrusion” to “government protection against the multiple hazards of industrialized society.” The result was “a dramatic change in the fabric of the national government….”
To Sunstein, President Franklin Delano Roosevelt’s 1944 State of the Union Address “has a strong claim to being the greatest speech of the twentieth century.” FDR used it to propose a Second Bill of Rights, to redress what he described as the Constitution’s inadequacies. He recommended rights to “a useful and remunerative job”; for “every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies”; to “a decent home”; to “adequate medical care”; to “adequate protection from the economic fears of old age, sickness, accident, and unemployment”; and to “a good education.” They “spell security,” the president said: “For unless there is security here at home, there cannot be lasting peace in the world.”
One of the criticisms comes from a report for the Administrative Conference of the United States, an independent federal agency with the mission of improving regulation. The report documented that reviews by Sunstein’s office of proposed federal rules “took longer in 2011 and 2012 because of concerns about the agencies issuing costly or controversial rules prior to the November 2012 election.”
