Sunstein: Obama, not courts, should interpret law

Cass Sunstein

JERUSALEM – The interpretation of federal law should be made not by judges but by the beliefs and commitments of the U.S. president and those around him, according to President Obama's newly confirmed regulatory czar, Cass Sunstein.

"There is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the President and those who operate under him," argued Sunstein.

This statement was the central thesis of Sunstein's 2006 Yale Law School paper, "Beyond Marbury: The Executive's Power to Say What the Law Is." The paper, in which he argues the president and his advisers should be the ones to interpret federal laws, was obtained and reviewed by WND.

Sunstein debated the precedent-setting 1803 case, Marbury v. Madison, which determined it is "emphatically the province and duty of the judicial department to say what the law is."

He lamented multiple recent examples of U.S. presidents interpreting law only to have their interpretations overturned by the Supreme Court.

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"Why is the executive not permitted to construe constitutional ambiguities as it sees fit?" asks Sunstein. "The simplest answer is that foxes are not permitted to guard henhouses ... but who is the fox?"

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He concludes "the executive should usually be permitted to interpret (law) as it reasonably sees fit."

"The allocation of law-interpreting power to the executive fits admirably well with the twentieth-century shift from common law courts to regulatory administration if the governing statute is ambiguous," he writes.

Sunstein is not shy about expressing his radical beliefs in papers and books, although many of his controversial arguments have received little to no news media attention or public scrutiny.

Earlier this week, WND first reported Sunstein drew up in an academic book a "First Amendment New Deal" – a new "Fairness Doctrine" that would include the establishment of a panel of "nonpartisan experts" to ensure "diversity of view" on the airwaves.

WND also reported Sunstein proposed a radical new "bill of rights" in a 2004 book, "The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More than Ever," in which he advanced the radical notion that welfare rights, including some controversial inceptions, be granted by the state.

WND has learned that in April 2005, Sunstein opened up a conference at Yale Law School entitled "The Constitution in 2020," which sought to change the nature and interpretation of the Constitution by that year.

Sunstein has been a main participant in the movement, which openly seeks to create a "progressive" consensus as to what the U.S. Constitution should provide for by the year 2020. It also suggests strategy for how liberal lawyers and judges might bring such a constitutional regime into being.

Just before his appearance at the conference, Sunstein wrote a blog entry in which he explained he "will be urging that it is important to resist, on democratic grounds, the idea that the document should be interpreted to reflect the view of the extreme right-wing of the Republican Party."

In his book, Sunstein laid out what he wants to become the new bill of rights, which he calls the Second Bill of Rights:

Among his mandates are:

• The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;
  
  
• The right to earn enough to provide adequate food and clothing and recreation;
  
  
• The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
  
  
• The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
  
  
• The right of every family to a decent home;
  
  
• The right to adequate medical care and the opportunity to achieve and enjoy good health;
  
  
• The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
  
  
• The right to a good education.

On one page in his book, Sunstein claims he is "not seriously arguing" his bill of rights be "encompassed by anything in the Constitution," but on the next page he states that "if the nation becomes committed to certain rights, they may migrate into the Constitution itself."

Later in the book, Sunstein argues that "at a minimum, the second bill should be seen as part and parcel of America's constitutive commitments."

With additional research by Brenda J. Elliott

Note: Media wishing to interview Aaron Klein, please e-mail WND.

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