President-elect Barack Obama will name Cass R. Sunstein, a close friend and one of the nation’s top constitutional lawyers, to a senior-level post in charge of government regulation, a transition official said.

Sunstein, a Harvard University law professor who grew close to Obama during their years at the University of Chicago, will become the administrator of the Office of Information and Regulatory Affairs.

Obama talked on the campaign trail about the need to revamp the nation’s regulatory structure, especially in housing and finance, areas in which lapses contributed to the current economic crisis.

In his new position, Sunstein will oversee reform of regulations, seeking to find smarter approaches and better results in health, environment and other domestic areas, a transition source said.

The Office of Information and Regulatory Affairs can do good things in imposing discipline and regulatory restraint on the executive branch agencies, examining the costs and unintended consequences that result from excessive rulemaking. For that reason, the Bush OIRA has been the subject of intense, often personalized criticism from the activist crowd who never met a regulation it didn’t like. (See below.)

We don’t know enough about Sunstein (Harvard CV) to offer an informed opinion, although he’s certainly mentioned prominently enough in legal publications and the blogosphere. In any case, we promise not to engage in the kind of smearing that was practiced against Susan Dudley and her predecessors.

Earlier posts (2007)

• WSJ: The Value of Susan Dudley’s Appointment
• Congratulations, Susan Dudley
• Noli Illegitimi Carborundum, Susan
• Experienced? Dispassionate? Analytical? How Dare She!

P.S. Speaking of Susan Dudley, she came to the Bush Administration from the Mercatus Center at George Mason University, a free-market oriented think thank. Indeed, George Mason University is often seen as an outpost of University of Chicago economics in northern Virginia. So President-elect Obama gives his economic stimulus speech today at GMU. How interesting.

The National Association of Manufacturers (NAM), the nation’s largest industrial trade association representing small and large manufacturers in every industrial sector and in all 50 states, urges you to oppose H.R. 11, the Lilly Ledbetter Fair Pay Act, and H.R. 12, the Paycheck Fairness Act.

Manufacturers are strongly committed to equal employment opportunity and support vigorous enforcement of anti-discrimination laws. As employers, we are dedicated to fairness in hiring, compensation and job advancement for all employees. Statistics from the Equal Employment Opportunity Commission indicate that “reasonable cause” is found in only 5 percent of the more than 82,000 charges of discrimination that it received in 2007. Unfortunately, these bills will do little to prevent actual instances of unlawful discrimination, but they will open the flood gates to unwarranted litigation against employers at a time when businesses are struggling to retain and create jobs.

H.R. 11, the Lilly Ledbetter Fair Pay Act, would eliminate current time limits for filing almost all discrimination charges. This would result in the removal of necessary incentives for prompt identification and resolution of potential discrimination claims and increase the potential for frivolous litigation. Eliminating this statute of limitation does not benefit the employees or employers. Instead, alleged discrimination could go undetected for many years, subjecting an increasing number of employees to wrongful actions. At the same time, employers would be forced to defend against an avalanche of decades-old, potentially frivolous claims. Prompt filing of claims allows employers to identify and, when necessary, to discipline those managers who may be violating the law.

This bill goes far beyond the issues raised in the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., by eliminating time limitations for claims of alleged employment discrimination in most cases, not just allegations of pay discrimination. This expansive bill would also create a new cause of action for family members or others “affected by” the alleged discrimination while impacting many forms of “compensation” such as pensions.

The Paycheck Fairness Act, H.R. 12, seeks to alter the Equal Pay Act (EPA) to include unlimited punitive and compensatory damages. This would expose employers to increased threats of litigation by making it significantly easier for plaintiffs’ attorneys to file class action suits.

Workers in the U.S. are already adequately and effectively protected from discrimination through remedies available under existing law. The EPA protects men and women from pay disparities in jobs that require equal skill, effort and responsibility and are performed under similar working conditions. This legislation eliminates current caps on punitive and compensatory damages in claims made under the EPA and exposes employers to unlimited damage awards even when unintentional pay disparities may have occurred. The Paycheck Fairness Act would also change the procedural requirements for bringing class action suits under the EPA, resulting in a significant increase in the number of plaintiffs in class actions.

Removing the caps on damages sought by plaintiffs would likely prompt employers to protect themselves by purchasing expanded legal liability insurance. That added burden of insurance would increase the cost of doing business in the United States and may result in a reduction of employees’ wages and benefits and/or the hiring of fewer workers. The Paycheck Fairness Act would almost certainly lower wages and cost jobs for American workers.

The NAM stands ready to work with you to prevent and mitigate workplace discrimination and to restore economic stability; however, these two bills do not support either of these shared goals. We urge Members of Congress to oppose H.R. 11, the Lilly Ledbetter Fair Pay Act, and H.R. 12, the Paycheck Fairness Act.

Thank you for your consideration.

Sincerely,

Jeri G. Kubicki

Vice President, Human Resources Policy

National Association of Manufacturers

Groups like the American Association for Justice (trial lawyers), the Sierra Club (environmentalists), and ProPublica (activist, anti-business journalism) have all pounded the table against this circumvention of the regulatory and oversight process. But in most cases, these regulations have been in the works for many months if not years and have indeed followed standard practice, in line with OMB’s instructions to avoid the shortcuts and gaming that undermines the implementation of these rules.

What’s really going on here is an effort to delegitimatize the substance of the regulations, especially those that attempt to encourage energy production while maintaining public health and safety. These groups have all lost their arguments during the drafting and public comment period on the rules, so now they try a process attack against the outcome.

Why else haven’t we seen an outcry against President Bush’s announcement this week that is he is using his executive branch authority to declare national monuments in three areas of the Pacific Ocean - in total, the largest fully protected area in the world, 195,274 square miles worth? It’s an astonishingly far-reaching expansion of government control over vast regions, done not after a full policy debate in Congress but instead with a stroke of the president’s pen. Are any of the groups aggrieved over “midnight regulations” upset with this display of executive branch authority?

To its credit, at least OMB Watch acknowledges the President’s actions, trying to distinguish it from “midnight regulations” in a blog post, “Last-Minute Ocean Conservation from Bush“:

Bush’s conservation move comes not by agency regulations, but by powers granted to presidents under the Antiquities Act of 1906, according to the Post. Though the regulatory machine is shutting down, Bush has other ways of advancing his policies. Executive orders, proclamations, and the like — though easier for future presidents to undo — remain an option for Bush until his final minutes in office.

Well, then, shouldn’t OMB Watch and its allies among the anti-Bush-regulation crowd be as exercised about the new Marine Monuments as they are about the ”midnight regs?”

Sure they should be, but they’re not, which tells us it’s not the midnight that offends them, it’s Bush keeping the clock.