Wednesday, October 17, 2012
However fundamental, the debate over the Constitution misses a problem that may well be even more important in American life. Many of the most significant judicial decisions do not involve the Constitution at all. Most people never hear about those decisions. But they determine the fate of countless regulations, issued by federal agencies, that are indispensable to implementing important laws—including those designed to reform the health care system, promote financial stability, protect consumers, ensure clean air and water, protect civil rights, keep the food supply safe, reduce deaths from tobacco, promote energy efficiency, maintain safe workplaces, and much more.
He proposes the following "simple way to test whether political convictions matter in legal disputes over regulations":
Ask just two questions. (1) Is the regulation being challenged by industry or instead by a public interest group? (2) How many of the three judges were appointed by a Republican president and how many by a Democratic president?
Though writing from a particular partisan viewpoint - - - Sunstein was Administrator of the White House Office of Information and Regulatory Affairs from 2009 to 2012 - - - his argument is certainly worth a read, and worth trying to refute with counter-examples.