In his writings, Sunstein directly contrasts nudge-type efforts with mandates, and argues the former are preferable because they are “choice-preserving”. For example, making green energy preferences on utilities the default option predisposes consumers towards environmentally favourable choices, but still gives them an escape. To those chafing against Covid mandates, this “libertarian paternalism” might seem preferable to the current style of Democratic governance…

But there is also a more profound issue at play: while technocrats’ rule by moral fiat has allowed some critics to be bludgeoned into submission, it also exacerbates the deeper problem of governance by unelected bureaucrats in a system nominally premised on the consent of the governed. Sunstein and his Obama-era acolytes were aware of this risk even if their project was informed by anti-democratic assumptions. This was why they were so concerned to preserve at least nominal freedom of choice on the part of citizens.

Biden, however, seems to have forgotten this. His administration’s devotion to mandates, regardless of the evidence piling up against them, looks more and more like a punitive backlash against political enemies. Far from a means of transcending hyperpartisan antagonism, as both Obama and Biden once promised, technocratic management has become another means of pursuing it. Public health messaging has become another opportunity for partisan pep rallies — and America will suffer for it.