Sure, it’s fine if nominees want to reduce both regulatory and enforcement activity. But it’s not fine for an EPA nominee to wish the EPA didn’t exist. Under the Constitution, the central obligation of the executive branch is “to take Care that the Laws be faithfully executed.”
Sunstein goes on to claim that proving their commitment to their agencies will be a special challenge for Scott Pruitt (EPA) and Andy Puzder (Labor). I don’t think Sunstein is right about either one of them, but here I want to focus on the logic of his test.
You can be committed to executing the laws faithfully while also thinking that the laws should be different, and working to change them. It’s also possible for a senator to disagree with the legislative judgments that underlie the existence of a department, and I see no reason such a senator should feel obligated to act on that legislative judgment rather than his own views. If a senator thought that creating the Department of Education was a mistake and favored legislation to end it, why would it be wrong for that senator to vote to confirm a nominee who agrees with him? If I were a senator, I would be inclined to vote against any nominee who wasn’t at least open to the possibility that it was a mistake to create the Department of Education.