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kottke.org posts about Cass Sunstein

Impeachment and its misconceptions explained

posted by Jason Kottke   Jul 05, 2017

At the recent Aspen Ideas Festival, legal scholar and former Obama advisor Cass Sunstein shared some views on his understanding of and some misconceptions about impeachment, namely that it doesn’t need to involve an actual crime and “is primarily about gross neglect or abuse of power”. Or as he put it more formally in a 1998 essay in the University of Pennsylvania Law Review:

The simplest is that, with respect to the President, the principal goal of the Impeachment Clause is to allow impeachment for a narrow category of egregious or large-scale abuses of authority that comes from the exercise of distinctly presidential powers. On this view, a criminal violation is neither a necessary nor a sufficient condition for impeaching the President. What is generally necessary is an egregious abuse of power that the President has by virtue of being President. Outside of this category of cases, impeachment is generally foreign to our traditions and is prohibited by the Constitution.

The “distinctly presidential powers” bit is a high bar to clear. Examining the case for Nixon on that basis, and only some of the reasons for wanting to impeach him hold up.

Richard Nixon nearly faced four counts. One failed count, for tax evasion, was completely inappropriate, Sunstein argued: Though an obvious violation of law, it had no bearing on Nixon’s conduct of the presidency. A second charge, for resisting subpoena, is possibly but not necessarily valid, since a president could have good reasons to resisting a subpoena. A third is more debatable: Nixon was charged with covering up the Watergate break-in. Nixon might have been more fairly prosecuted for overseeing the burglary, Sunstein argued, but nabbing him for trying to use the federal government to commit the cover-up was “probably good enough.” Only the fourth charge, of using the federal government’s muscle to prosecute political enemies, is a clear slam-dunk under the Founders’ principles.

Clinton’s impeachment, argued Sunstein in that same Penn Law Review essay, was less well-supported:

I suggest that the impeachment of President Clinton was unconstitutional, because the two articles of impeachment identified no legitimate ground for impeaching the President.

Sunstein explained the intent of the members of the Constitutional Convention in a Bloomberg article back in February. It’s interesting in the light of the Russian collusion investigation that the debate about impeachment at the convention centered around treason.

James Madison concurred, pointing to cases in which a president “might betray his trust to foreign powers.” Gouverneur Morris added that the president “may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard against it by displacing him.”

So what about Trump? Sunstein doesn’t offer much (no apparent mention of collusion with Russia):

Sunstein, having scolded legal colleagues for playing pundit, was reluctant to address the question directly. Setting aside the impossibility of impeaching Trump under the present circumstances of GOP control of Congress, Sunstein said he was wary of trying to remove the president simply for being bad at his job. Nonetheless, he said Trump’s prolific dishonesty might form a basis for trying to remove him.

“If a president lies on some occasions or is fairly accused of lying, it’s not impeachable — but if you have a systematic liar who is lying all the time, then we’re in the ballpark of misdemeanor, meaning bad action,” he said.

If I were a betting person, I would wager that Donald Trump has a better chance of getting reelected in 2020 than he does of being impeached (and a much better chance than actually being removed from office through impeachment) if the Republicans retain their majority in Congress. Although their healthcare bill has hit a hiccup due to public outcry (and it’s only a hiccup…it will almost surely pass), Congressional Republicans have shown absolutely no willingness to do anything not in the interest of their agenda…so why would they impeach a Republican President who is ticking all of the far right’s action items thus far?

Can It Happen Here?: Authoritarianism in America.

posted by Jason Kottke   Jun 06, 2017

That’s the title of a forthcoming book edited by Cass Sunstein (Harvard professor, former Obama regulatory administrator). On Twitter, Sunstein says he’s the editor not the author and that the essays will “offer diverse views”. But by the time this book comes out in March 2018, we might already know the actual answer to the title’s question. (via @tylercowen)

Five books to change conservative minds

posted by Jason Kottke   Jan 25, 2017

Back in November, former Obama administration official Cass Sunstein came up with a list of five books that conservatives should read to in order to learn something about contemporary progressivism. On the list is Success and Luck: Good Fortune and the Myth of Meritocracy by Robert Frank:

In Frank’s view, we overstate the role of individual merit and underestimate the massive role of luck in producing individual success or failure — being born into the right family, finding oneself in the right place at the right time, having a good mentor. He makes “there but for the grace of God go I” into a rallying cry.

A month earlier, Sunstein offered a similar list of books liberals should read to learn something about conservatives, including Jonathan Haidt’s The Righteous Mind:

Do conservatives have moral commitments that progressives may not even recognize? Haidt says yes, and he identifies three: authority, loyalty and sanctity. If, for example, someone has betrayed a trust, or treated a boss or a parent disrespectfully, conservatives are far more likely to be outraged than progressives.

Haidt is not himself a conservative, but he offers a sympathetic explanation of why progressives often fail to understand their political adversaries. He also shows that the moral commitments that resonate among conservatives have deep roots in human history — and that it is a form of blindness not to acknowledge and respect those commitments.

The Star Wars prequels predicted our current political moment

posted by Jason Kottke   Jun 02, 2016

Cass Sunstein, author of the recently published The World According to Star Wars, says that while most people might dislike the three Star Wars prequels, they function well as “a quick guide to current political struggles”.

A long time ago, in a galaxy far, far away, paralyzing political divisions threatened democratic governments. Disputes over free trade, and the free movement of people and goods, were a big reason. Stymied by polarization and endless debates, the Senate proved unable to resolve those disputes.

As a result, nationalist sentiments intensified, leading to movements for separation from centralized institutions. People craved a strong leader who would introduce order — and simultaneously combat growing terrorist threats.

A prominent voice, Anakin Skywalker, insisted, “We need a system where the politicians sit down and discuss the problem, agree what’s in the interest of all the people, and then do it.” And if they didn’t, “they should be made to.”

Eventually, something far worse happened. The legislature voted to give “emergency powers” — essentially unlimited authority — to the chief executive. An astute observer, Padme Amidala, noted, “So this is how liberty dies… with thunderous applause.”

Well, that was kind of terrifying to read. My ill-feeling peaked at “a democratic body, a senate, not being able to function properly because everybody’s squabbling” as a cause of Hitler’s rise in Germany. As Sunstein notes, the parallels between that situation and our do-nothing Congress & the authoritarian gentleman currently running for President are obvious and possibly significant.

The World According to Star Wars

posted by Jason Kottke   Apr 26, 2016

World According Star Wars

In The World According to Star Wars, Cass Sunstein explores the philosophy and life lessons of Star Wars.

In this fun, erudite and often moving book, Cass R. Sunstein explores the lessons of Star Wars as they relate to childhood, fathers, the Dark Side, rebellion, and redemption. As it turns out, Star Wars also has a lot to teach us about constitutional law, economics, and political uprisings.

Update: Sunstein, who is a professor at Harvard Law School, gave the commencement address last year at Penn Law. He starts off, dryly: “Graduates, faculty, family, friends, our topic today is Star Wars.”

(via @EmilyBrenn)

The best behavioral economics of 2014 movies

posted by Jason Kottke   Dec 17, 2014

Legal scholar Cass Sunstein presents his annual list of the movies that best showcased behavioral economics for 2014.

Best actor: In 1986, behavioral scientists Daniel Kahneman and Dale Miller developed “norm theory,” which suggests that humans engage in a lot of counterfactual thinking: We evaluate our experiences by asking about what might have happened instead. If you miss a train by two minutes, you’re likely to be more upset than if you miss it by an hour, and if you finish second in some competition, you might well be less happy than if you had come in third.

“Edge of Tomorrow” spends every one of its 113 minutes on norm theory. It’s all about counterfactuals — how small differences in people’s actions produce big changes, at least for those privileged to relive life again (and again, and again). Tom Cruise doesn’t get many awards these days, or a lot of respect, and we’re a bit terrified to say this — but imagine how terrible we’d feel if we didn’t: The Top Gun wins the Becon.

(via @tylercowen)