National Security

Biden relies on progressive foe to lead immigration rollbacks

Cass Sunstein
Greg Nash

President Biden has been relying on a progressive foe to help his administration look for lasting ways to dismantle Trump-era immigration policies.

Cass Sunstein joined the Department of Homeland Security (DHS) in February as a senior counselor, tapped to oversee and coordinate rulemaking across all of its agencies.

It’s a blow to progressives who are still critical of his tenure leading the Office of Information and Regulatory Affairs (OIRA) during the Obama administration, when they say he stalled much-needed regulations.

This time around, Sunstein and other high-ranking officials are embarking on the monumental task of rolling back around 1,000 immigration measures put in place by the Trump administration.

For an administration that bragged of its deregulatory efforts and forced agencies to strike down two regulations for every new one it put in place, the Trump immigration sphere stands in stark contrast.

“Conservatives and other critics of regulation are loathe to admit that they actually support more regulation when it comes to restricting immigration,” said Amit Narang, a regulatory policy advocate with Public Citizen, a left-leaning group.

“Cass Sunstein might force them to grapple with this blind spot.”

Sunstein, a prolific author fresh off a stint teaching administrative law at Harvard Law School, joined the administration alongside his wife, former U.N. Ambassador Samantha Power, Biden’s nominee to lead the U.S. Agency for International Development.

“The Biden Homeland Security Department is facing a set of challenges that are extremely well-suited to complicated law school final exams,” said Jeff Hauser, executive director of The Revolving Door Project.

“So the idea that you might need an administrative law expertise at Homeland Security makes complete sense,” he said.

Hauser, however, counts himself among the progressives who were rooting for the Biden team to keep Sunstein as far away from the administration as possible.

But even those who lobbied to keep Sunstein out of the administration begrudgingly see the value he might bring to DHS.

It wasn’t just regulation that complicated the immigration system under Biden’s predecessor — DHS issued overlapping internal directives and guidance to help carry out its policies, creating layers and layers of bureaucracy the Biden administration will have to carefully unwind.

Meanwhile, various iterations of regulations are at different stages in their court challenges, further complicating an already daunting pile of regulatory issues.

“Cass is the nation’s foremost regulatory expert, and we are privileged to have him on our team to help us address a wide range of complex challenges,” Homeland Security Secretary Alejandro Mayorkas said in a statement to The Hill.

“Cass has already been an invaluable asset as we ensure that all of the rules that DHS issues are based on evidence, consistent with the law, and best serve our nation,” he added.

Biden has promised sweeping reform of the immigration system and a path to citizenship for some 11 million people already living in the U.S. illegally.

Some progressives, however, view Sunstein as a regulatory roadblock and a moderate Democrat too eager to consider voices from the right — attributes that they say could stall Biden’s agenda.

A review of Sunstein’s 2009 to 2012 stint at OIRA shows his office processed rules a few days faster than the 60-day average across administrations.

But progressives argue his tenure was defined in large part by delays that held up needed regulation — like a rule requiring backup cameras in cars to prevent child death — and an overreliance on cost-benefit analyses that require a careful weighing of the financial pros and cons of a regulation.

Thorough reviews of regulations, though, could be key in unrolling Trump-era rules, particularly any that didn’t meet the letter of the law or those where benefits did not outweigh costs.

Some of those issues are already being addressed in court, where many Trump regulations have been blocked because they did not meet the requirements of the Administrative Procedures Act.

“One of the problems the Trump administration had in trying to roll back the Obama agenda was that they were not careful. They tried to do things too quickly, and they got reversed time and time again. So putting Sunstein at DHS is saying, ‘We’re not going to make the same mistakes in trying to roll back the Trump agenda that Trump made in trying to roll back the Obama agenda,” said Stuart Shapiro, a regulatory law professor at Rutgers University.

Sunstein’s experience with cost-benefit analysis may also be of value, either in poking holes in existing regulations or in helping fortify Biden rules from potential legal challenges.

Some progressives worry overreliance on cost-benefit analysis could undermine needed regulation where it’s difficult to put a price tag on the societal benefits.

But it proved to be a thorn in the side of the Trump administration, particularly on its efforts to establish a so-called public charge rule that would limit green card access for people who relied on public assistance like food stamps.

Even under Trump, DHS found the regulation would cost more in the long run — as much as $1 billion over 10 years — due in part to the paperwork burden it would create.

“The total annual impact of new paperwork, time dedicated to application, credit checks and fees on immigrants applying under the rule would range from approximately $45 million to $139 million, annually,” Public Citizen wrote at the time.

The Biden administration is not defending the public charge rule in court, leaving it vacated.

The public charge rule wasn’t the only one where the Trump administration sought to impose onerous paperwork requirements, something Sunstein would call “sludge” that stops people from getting the benefits they are entitled to. It’s a topic Sunstein plans to address in a book later this year, examining “how we became so burdened by red tape” and unnecessary paperwork.

“In a way, there is a certain irony there, right? One of the few places that conservatives really want to regulate — immigration and women’s access to abortion — they are only too happy to regulate every blessed detail” and pile on paperwork, said James Goodwin, a senior policy analyst with the Center for Progressive Reform.

“So again to the extent that he applies that skeptical mindset to something like immigration regulations, maybe there is a silver lining there,” he added.

Still, Goodwin and Hauser have plenty of concerns that Sunstein could stall momentum at DHS.

Goodwin said a culture of skepticism toward regulations and a reliance on cost-benefit analysis “could all potentially turn out to be bad things even if initially they produce good results or results progressives tend to agree with.”

He’s also worried Sunstein’s reputation as a deliberate thinker could jeopardize the agency when Democrats argue it needs to reverse Trump’s legacy as quickly as possible.

“This is an area that really benefits from being nimble, that if there are crises that crop up, you’re never going to find the optimal solution, you’ve just got to make a decision with the best information you have available. And these are real people’s lives at stake, and we don’t have time for Cass Sunstein to be reciting Hamlet’s ‘To be or not to be’ for months on end,” he said.

Hauser, who described Sunstein as “the Democrat that Federalist Society members most like to work with,” is also worried that he could stop DHS from pursuing the most aggressive policies or legal postures, for fear they might not hold up in court.

“I think if there’s a 60 percent chance you can help people and a 40 percent chance a Trump judge will think it’s illegal, I don’t even think it’s a close call. I don’t know that Cass Sunstein would agree with me,” Hauser said.

“At a fundamental level, there are going to be a series of go, no-go decisions for the Biden administration. And if you think it is particularly bad to lose in court, you might recommend not going forward on things, even when there’s a chance you’ll win just, because there’s a chance you’ll lose.”

—Updated at 11:54 a.m.

Tags Alejandro Mayorkas Donald Trump Joe Biden Samantha Power

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