By Joshua J. Schroeder†
Originally featured as a Mar. 20, 2022 guest post on the ImmigrationProf Blog
One of the central reasons voters came out in record numbers to vote Trump out of the White House in the 2020 election was Biden’s oft repeated promise to rollback Trump’s draconian immigration policies. Unfortunately, over a year into the Biden era the results have been demoralizing for many immigration advocates. There have been few, if any, successful rollbacks of Trump’s central immigration policies and several examples of Biden defending and extending Trump’s policies while still trying to justify himself as an anti-Trump.
There is a fair amount of reporting on the disappointing turns the Biden administration took on immigration (which I will summarize in this footnote[1]). But there is little discussion about why. Unlike the highly publicized tenure of Trump’s unofficial immigration advisor Stephen Miller, Biden’s top man behind the scenes of DHS’s failed rollbacks of Trump era immigration policies Cass R. Sunstein is flying under the radar. There are a few public messages from policy centers about Sunstein’s “fine-toothed comb,” and a red alert warning from liberal progressives describing Sunstein’s placement in DHS a “bright side” since DHS is “far away from health, safety, and environmental regulation.” But on the whole, Sunstein’s conservative progressive role in the Biden administration is under-discussed.
In a time when several catastrophes, wars, and natural disasters are resulting in an unprecedented strain on the U.S. immigration system, most Americans took for granted that Biden would quickly set in motion a rapid change of course on immigration. But Biden passed up his chance to swiftly implement mercy-centered policies in immigration, including default judgements in favor of asylum grants. Instead, Biden’s hire of Sunstein signaled a shift to a strong centralized immigration bureaucracy whose goal will be to perfect fairness in immigration to the exclusion of mercy. A proponent of a cost/benefit ideology that Biden previously lambasted as “presumptuous and elitist,” Sunstein’s vision is for a permanent, unitary executive driven immigration reform designed to avoid engaging with traditional separation of powers principles—in short, Sunstein is planning on cheating the system and envisions himself as the sort of Jedi master of bureaucracy who is capable of doing it (see, e.g., page 1680 of Regulatory Horcruxes).
Sunstein is a prolific writer and was President Obama’s regulatory czar for about three and half years, so his professional beliefs are widely known. The topics of his books and articles vary wildly including a book about how Star Wars illuminates the constitution, several books about how to create technocratic changes in bureaucracies, a controversial pro-propaganda piece entitled Conspiracy Theories (that Sunstein later turned into a book), and a bestselling book entitled Nudge co-written by Nobel Prize laureate Richard H. Thaler that absurdly proposes the implementation of an oxymoron Sunstein & Thaler call “libertarian paternalism.” Yet, nothing permeates Sunstein as completely as his almost passionate devotion to cost/benefit balancing tests.
Sunstein’s favored cost/benefit strategy traces back at least as far as Buck v. Bell, when Justice Holmes used a cost/benefit balancing test to balance away Carrie Buck’s right to keep her genitals intact. As Professor Victoria Nourse observed, Justice Holmes “believed that the Constitution could be reduced to ad hoc balancing.” Nourse continued, “Eugenics was built on the notion of harm; indeed, it thrived on a sense of imminent doom: that society was degenerating because of what were called its ‘weaklings’ and ‘discards.’” This rhetoric might sound familiar these days, as Trump rallied his supporters with similar views in defense of his immigration policies, referencing the “racehorse theory” shorthand for eugenics ideology.
In 1991, Professor Mark T. Nelson coined the term “Trumpism” in his well-read article Utilitarian Eschatology as a shorthand for the principle of utility. This “Trumpism,” that tends to reduce all ethical and moral considerations to doing “whatever it takes to achieve the highest aggregate bank balance,” is the same presupposition behind Cass R. Sunstein’s cost/benefit balancing tests. As demonstrated by my forthcoming article Why Cost/Benefit Balancing Tests Don’t Exist at West Virginia Law Review, both Trump and Sunstein’s utilitarianism actually trace back to the bedrock Puritanical principle of cost/benefit balancing tests expounded by Justice Holmes in Buck v. Bell.
Sunstein’s balancing tests are no different from Trump’s or Holmes’s. Sure, we now cite to Mathews v. Eldridge instead of Buck (see page 24 of Jacobson v. Massachusetts for the balancing test principle cited by Buck), but Mathews similarly held that no evidentiary hearing is required before a property right can be taken by the government. Immigrants are having their rights balanced away by bureaucrats based upon an unscientific, eugenic presupposition that allowing asylum seekers to stay in the United States results in more costs than benefits to the United States.
After Edwards v. California, this old eugenic presupposition is suspect. It is well known that the illegal repatriation program of the 1930s worsened the Great Depression, because the millions of people of Mexican ancestry that were deported took untold fortunes of value, in the form of knowledge, labor, and culture, back to Mexico. A more recent tranche of pro-immigrant empirical evidence was unpacked by economist David Card who won the 2021 Nobel Prize, in part, for revealing that perhaps the cost of deporting Cubans actually outweighed the benefits (if any) of deporting them from the perspective of the Floridian working class.
The most basic problem with Sunstein’s cost/benefit ideologies, however, is that it contradicts the Nobel Prize winning empirical research of Daniel Kahneman & Amos Tversky. Kahneman & Tversky provided strong evidence that human beings cannot remember pains or pleasures accurately, which undermined the whole idea that humans (including judges and bureaucrats) can weigh costs and benefits accurately (see Michael Lewis’s biography of Kahneman & Tversky’s friendship that thoroughly explains this: The Undoing Project). Kahneman & Tversky would probably have labeled Sunstein’s firm dedication to cost/benefit balancing tests despite strong evidence to the contrary an anchoring bias.
To make matters worse, Sunstein knows this is the case. He actually wrote a book with Kahneman entitled Noise (mentioned above). Noise cited a disturbing study regarding U.S. immigration courts’ adjudication of defensive asylum cases, which found “of cases that were randomly allotted to different judges that one judge admitted 5% of applicants, while another admitted 88%.” In another passage, Sunstein & Kahneman concluded that in response to evidence of an arbitrary and capricious “refugee roulette” in immigration court, justice ought not to be tempered with mercy, i.e., default judgments on the side of mercy for refugees should not result even with strong evidence that the tribunals that dispose of refugee rights are structurally flawed.
Rather, they adopted a presupposition of fairness to the exclusion of mercy, which appears to, in their opinion at least, be so important as to override supreme federal laws of nonrefoulement that require mercy. As this passage in Noise explains (see pages 340–41), mercy is noisy and therefore irrational and undesirable. However, adopting the Rawlsian dogma of justice as fairness, as Kahneman & Sunstein appear to do, fails to preclude illegal government administered genocide, mass repatriations (a.k.a., banishment), or society-wide eugenic sterilization as Justice Holmes himself described in Buck v. Bell dismissing a claim of unequal treatment thusly,
It is the usual last resort of constitutional arguments to point out shortcomings of this sort. But the answer is that the law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow.
So too with Sunstein, Kahneman, and their implied proposition for a more “fair” (i.e., less noisy) immigration policy. The ironies here are palpable as Holmes’ opinion in Buckinspired Hitler, and Kahneman was a Jewish survivor of the Third Reich from Paris, France. Kahneman was twice an immigrant and one of the two psychologists to prove the cost/benefit basis of Buck v. Bell untenable, but that unique set of knowledge, experience, and accomplishments did not stop Kahneman from joining America’s premier cost/benefit balancer in his later years (see The Undoing Project).
The reason why, as again captured by Michael Lewis’s wonderful biography The Undoing Project, was emotional. Kahneman spent decades with Amos Tversky who was known to be a sort of cage brawler in the economic world, which caused Tversky to develop a certain aloofness from accolades that were not extended to Kahneman—eventually earning Kahneman’s resentment. After Tversky passed away in the middle of one of his intellectual cage fights with a German economist, a man that Kahneman would have rather befriended than disputed, befriending Sunstein probably felt like an extremely natural act, and even a relief, for Kahneman.
Without Tversky to insist on correcting Sunstein wherever he erred, Kahneman was free to explore the erroneous and comfortable world that Sunstein opened to him. Kahneman may have felt like Charlie receiving his golden ticket to Willie Wonka’s Chocolate Factory to explore Sunstein’s internal world where oxymoron and paradox reign supreme. In short, more the psychologist than the economist, Kahneman was finally liberated to explore whether it even matters if human beings distinguish error from right.
There are several consequences of Kahneman’s exploring Sunstein’s paradoxical system of thinking that insists it is not a paradox. For one, Kahneman appears not to be creating any further psychological studies to explore what human beings are, if we are not rational. Another major consequence is that by gilding Kahneman’s lily, Sunstein appears to have claimed free rein to propose everything from a government propaganda machine to a government of clean, noiseless algorithms. It appears, with Kahneman’s endorsement, Sunstein was unofficially put in charge of Biden’s immigration efforts through which he may experiment with putting immigrants into his government version of The Matrix before the system is (Sunstein hopes) unleashed more broadly on U.S. citizens.
Nobody save Kahneman is in a position of comparative power to effectively reject Sunstein’s more dangerous proposals. Kahneman may yet turn Sunstein into a case study, as Mary Trump did to her uncle, to explore the implications of his anchor bias for cost/benefit balancing tests even in the face of Kahneman & Tversky’s previous research. But unless or until this happens, it appears that in lieu of rolling back Trump-era immigration policies, Sunstein may attempt to establish his Matrix-esque, utopian, AI-driven, government-by-algorithm idealism at DHS to decide the fate of millions of Ukranian, Afghan, Central American, and other asylum seekers fleeing unprecedented humanitarian crises.
According to the common law, proving that a tribunal is random and arbitrary is grounds to disband it as a version of Star Chamber. Federal courts were meant to step in to correct or even replace lesser tribunals that demonstrate structural error. They have ultimate jurisdiction over all cases and controversies arising from federal questions including those involving immigrant asylum seekers under Crowell v. Benson andBoumediene v. Bush. In short, delaying justice for immigrants under clear federal law favoring immigrants while government bureaucrats fiddle with cost/benefit analyses in an objectively arbitrary asylum system is justice denied.
In the absence of a legitimate enabling law to justify a consequence of immigrant removal, known in earlier ages as banishment, the common law counsels mercy. It counsels that in the absence of an express constitutional repeal that the inalienable right, announced by James Otis on the outset of the American Revolution, of human beings “to chuse [sic] what society [they] will continue to belong to,” must hold as a primary tenet of all Republics. Or as Justice Wilson determined in the case of Collet v. Collet, immigration should be vindicated as a state right enforceable in federal court in the style of the anti-eugenic, pro-immigrant case Edwards v. California, or else in the sweeping style in which Justice Wilson announced from the bench in Henfield’s Case: “Emigration is, undoubtedly, one of the natural rights of man.”
† These topics and more are examined in my new article Why Cost/Benefit Balancing Tests Don’t Exist: How to Dispel a Delusion that Delays Justice for Immigrants, forthcoming at West Virginia Law Review. Why Cost Benefit Balancing Tests Don’t Exist is the first article to apply Kahneman & Tversky’s Nobel Prize winning research to the law. And it explains fully why Biden’s top man in charge of rolling back Trump’s immigration policies Cass R. Sunstein has failed to do so.
[1] In short, Biden betrayed his promises to rollback Trump’s policies in several cases from Biden’s extension of the stay in Mexico policy, black site immigration courts (confirmed by Biden’s Trumpian IJ nominations), and Title 42 expulsions. The breakdown of settlement talks with those violated by Trump’s child separation policy result was especially disappointing. The highly publicized images of CBP officers on horses whipping Haitian migrants on the Mexican border, a pre-Trump immigration policy reminiscent of how African American slaves were treated in the not-so-distant American past, didn’t help. Even the reversal of the reviled and confusing Trump-era decision in Matter of A‑B‑, initially received by immigration advocates as a huge victory, seems to have been only a reprieve that will be in effect only until new rules that generally destroy asylum seekers’ rights to a defensive removal trial before an Immigration Judge at all. And an under-discussed report on the hideous procedures applied to immigrants in ICE flights represents that what is publicly known regarding the Trumpian nature of Biden’s immigration enforcement is only the tip a giant iceberg.