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RICHARD A. EPSTEIN: Biden’s busted Cabinet

During this transition period, President-elect Joe Biden’s main task is to pick key Cabinet officials for his administration. The power of each of these officials dwarfs that of governors, senators and corporate CEOs. To date, Biden has not proved himself equal to the task.

The Democratic Party’s obsession with diversity hampers Biden’s ability to choose wisely. Nonstop identity politics has led to some bizarre appointments. California Attorney General Xavier Becerra is up for secretary of health and human services without any executive experience in running the department’s many complex health programs. Ditto for Pete Buttigieg as secretary of transportation. Buttigieg’s timely endorsement of Biden’s candidacy is a poor substitute for experience in coping with the major challenges in airline and ground transportation.

Democratic Rep. Marcia Fudge received a nomination as secretary of housing and urban development, where she has no experience. Deb Haaland, a Native American and Democratic congresswoman from New Mexico and self-styled champion of racial, economic and environmental justice, is Biden’s choice for secretary of interior. Finally, the tart-tongued Neera Tanden is stunningly ill-qualified to be the head of the Office of Management and Budget. She is a lawyer with no financial expertise who has served almost 10 years as the head of the progressive Center for American Progress.

Of greater concern are the progressive policies that Biden’s key picks will pursue. On interaction between energy and the environment, I believe that the proper course of action requires the active development of natural gas through fracking, coupled with effective enforcement of anti-pollution laws. Sound environmental policy does not call for endless delays of major projects under the National Environmental Policy Act, when those risks are far better managed by early project approval followed by constant inspection and exposure to liability for leaks and discharges, capped by insurance protections.

The Biden team is heading the wrong way. All the players — Jennifer Granholm as secretary of energy, John Kerry as international climate czar and Gina McCarthy as domestic climate czar — favor heavy-handed controls likely to damage simultaneously both domestic energy sources and the environment itself. For instance, expect them to take strong positions against the Keystone XL pipeline, which is now unlikely ever to be built, and the Dakota Access Pipeline, now in successful operation, and even try to shut down the latter in order to squeeze the use of fossil fuels.

In addition, their uncritical devotion to wind and solar energy glosses over the many major obstacles to their widespread deployment. Neither form of energy is storable, and both generate harmful environmental effects during their respective life cycles given the energy-intensive processes for their fabrication, the noise and heat pollution from their use and the costly and dangerous processes for the disposal of waste and obsolete equipment. But all officials act as if adopting on a crash basis some variation of the Green New Deal will offer environmental salvation for the United States. Instead, the consequences of their policies are likely to lead to a loss of political influence abroad with economic hardship at home.

The difficulties with the Biden program will spill over from energy and environment into other areas. Biden’s nominee for secretary of treasury, Janet Yellin, unwisely supports using fiscal and monetary policy in order to promote green ideals, even though they necessarily distort private investment into subsidized technologies that never quite pay their way.

These misguided Biden priorities will also disrupt the labor market as Biden wrongly claims his new green projects will generate lots of high-paying union jobs — a transparent political payoff to his labor backers. His support for labor, moreover, is likely to become even more militant once he names his secretary of labor pick, who is likely to boost unionization efforts under the National Labor Relations Act and minimum wage and overtime protections under the obsolete Fair Labor Standards Act. The Biden administration is also likely to push for the comprehensive regulation of the gig economy by supporting national regulations modeled on California’s failed AB5, now cut back by referendum, that has already created havoc, not only for Lyft and Uber, but also for journalists, translators and even for would-be Christmas Santas.

Similar concerns arise with the regulation of health care, for the ill-informed Becerra will be teamed with Biden’s new anointed chief medical officer Anthony Fauci and Jeffrey Zients, Biden’s newly minted coronavirus czar. It is not an impressive trio. Fauci has wrongly resisted the widespread use of HCQ, while Zients, for all his impressive management skills, has neither experience nor expertise in dealing with the coronavirus. The Biden team will likely tilt to heavy-handed regulation, quarantines and lockdowns that will stifle the economic recovery while doing little to prevent the spread of the disease.

Still ahead lie the confirmation hearings, which will be rough-going for many of these nominees if the Republicans retain the Senate. Some of Biden’s picks — such as Antony Blinken in State and Yellin in Treasury are likely to sail through. Four-star Gen. Lloyd Austin may not make it because he needs from both houses a waiver to become secretary of defense.

As of this writing, the attorney general nominee remains unknown. But the real dangers lie with Biden’s choices on matters of the environment, energy, health care and labor, most of who are likely to be confirmed even if they meet with resistance, especially from representatives of Trump’s rural and working-class base. Indeed, many of the social elites who recoiled against Donald Trump’s abusive tweets and confrontational style may discover to their sorrow that Biden’s leftward lurch promises rough sailing for the nation ahead.

Richard A. Epstein is a professor at the New York University School of Law, a senior fellow at the Hoover Institution and a distinguished service professor of law emeritus and senior lecturer at the University of Chicago. His Review-Journal column appears quarterly.

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