There are certainly two sides to Sunstein’s scholarship, the regulatory side and the constitutional side. As he is to be head of OIRA, I believe his regulatory work is more relevant, and as I said, I think he is the best we could have hoped for in that position from the incoming administration. If he were a Supreme Court nominee (and that may still happen, of course), I’d very much be taking Mark and Jonah’s side.

Yet OIRA is the question at hand. Sunstein’s rejection of the Precautionary Principle is extremely important and may serve as a brake on the aggressive regulations that might otherwise emanate from the transparently left-wing selections at EPA and Energy, which will be backed up by the science adviser. His “nudge” proposals on climate change are all about an inventory of greenhouse gas emitters, not carbon taxes, which he does not think the American public will accept. He has backed a full auction of emissions permits for a cap and trade scheme, but a full auction will be so costly it is going to face significant opposition, and he is sensible enough to realize this. Having a serious voice at the President’s ear that can restrain the environmental excesses will be vital to this nation’s economic recovery. It’d be nice if he was a strict constructionist too, but I am wary of making the perfect the enemy of the good or, in this case, the enemy of the better-than-any-other-realistic-option.