Mike Rappaport Website

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

Reforming Regulation: Internal Constraints on Agencies

In three prior posts here, here, and here,  I have been exploring possible reforms that Congress could enact to constrain executive power.  The first set of reforms involves shifting power from the agencies to Congress.  The second set of reforms involves shifting power from agencies to the judiciary.  In this post, I will discuss a third set of reforms – reforms that, instead of shifting power to another entity, place limits on the internal operations of agencies.

These reforms have the advantage of not primarily relying on other actors.  Instead, they place obstacles on agencies’ ability to regulate.

One possible reform is to employ more bipartisan commissions.  The independent agencies are typically commissions with a significant number of commissioners from the minority party.  This helps to deter the agency from taking politically partisan acts, because the minority party commissioners are inside the agency.

While such bipartisan commissions have generally been limited to independent agencies, I believe it might make sense to use them even for executive branch agencies.  It is true that the President might direct the commissioners from the opposing party as to how to vote.  But having those commissioners in the inside would still check partisan schemes.

Read More

Reforming Regulation: Eliminating Chevron Deference and Constraining Guidances

The words Court House outside the Supreme Court

In two prior posts here and here, I have been exploring possible reforms that Congress could enact to constrain executive power – asking whether such reforms would be desirable and whether a Republican Congress and President might enact them.

Another set of reforms involves shifts of power from the executive to the judiciary.  Here I will briefly discuss two such reforms: eliminating Chevron (and Auer) deference and subjecting guidance documents to increased judicial review.

Read More

Reforming Regulation: Nondelegation and the REINS Act.

In my last post, I wrote about how the Congress might be able to limit executive power.  In the near future, the most likely possibility is that the Republicans would gain control of the Presidency, keep control of the Congress, and have an ideological commitment to constraining executive power.  Whether this is likely or not, it is certainly a real possibility.

In a recent concurrence, Justice Thomas wrote an opinion making the argument for a reinvigoration of the nondelegation doctrine.  If the Supreme Court were willing to agree with Justice Thomas and hold delegations to be unconstitutional, then executive power would be constrained.  But unfortunately this seems extremely unlikely.

Another way delegations would be constrained is if Congress were to return to a system of limited delegations by eliminating or constraining the various regulatory statutes that delegate broad legislative authority to the agencies.  Unfortunately, it seems obvious that Congress would be unwilling to do this and that the President would oppose it.

But there is yet another possibility: one could pass a cross cutting law that required congressional approval before agencies could adopt major rules.  This type of law – which is known as the REINS Act – would operate to significantly reduce delegations to the agencies.

Under the Act, major regulations would have to be approved by the Congress before they could be put into effect.  Each house of Congress would have an up or down vote on the regulation proposed by the agency.  To minimize the time for delay and debate, the vote would be on the proposed regulation rather than on amendments that either house might propose.

Read More

Congressional Reforms of Excessive Executive Power: Can They Be Enacted?

Executive power has been growing.  Many people on the right have come to appreciate this growth over the last 6 years of the Obama Administration.  But the growth in recent years first began under George W. Bush.  In this area, Bush and Obama have more in common than not.

Can anything be done about this?  While it is possible that the courts could act to constrain the executive, the better way – in terms of effectiveness – would be if the Congress were to pass reforms of executive power.  But can Congress feasibly constrain the executive?  One question is whether Congress is willing to take such constraining action.  Another is whether Congress would have the power to take such action, given that the President has a veto over legislation.

If one looks at modern American history, there appear to be two situations where significant reforms of the existing power of the executive branch have been enacted. 

Read More

Obamacare Oral Argument: Still a Winner

The following post is written by Bill Levin, a friend and former colleague at the Office of Legal Counsel. Bill has been closely following the King v. Burwell litigation. For his previous posts, see here and here

How will the Supreme Court rule in King v. Burwell based on last Wednesday’s oral argument?

On Power Line, Paul Mirengoff judiciously concludes that the odds modestly favor the government: an implacable four-vote liberal bloc is potentially joined by a surprise vote from Justice Kennedy, on a theory of constitutional avoidance, plus the risk posed by Chief Justice Roberts, who said nothing one way or the other during oral argument to change the betting line.

An alternative view, argued here, is that oral argument justifies continued high optimism that the King plaintiffs prevail.

The key lies in the three-clerk hypothetical put by Justice Kagan to plaintiffs’ counsel, Michael Carvin:

JUSTICE KAGAN: [Can] I offer you a sort of simple daily life kind of example which I think is linguistically equivalent to what the sections here say that Justice Breyer was talking about? So I have three clerks, Mr. Carvin. Their names are Will and Elizabeth and Amanda. Okay? So my first clerk, I say, Will, I’d like you to write me a memo. And I say, Elizabeth, I want you to edit Will’s memo once he’s done. And then I say, Amanda, listen, if Will is too busy to write the memo, I want you to write such memo. Now, my question is: If Will is too busy to write the memo and Amanda has to write such memo, should Elizabeth edit the memo? (Laughter.)

While the exchange elicited a sharp laugh from the audience, it deserves serious post-argument comment for its wholly unfunny legal import.

What was Justice Kagan’s point in this far afield hypo, an exercise beloved of judges and the stuff of nightmares for practicing attorneys everywhere?

Read More

Promising Developments on Sexual Assualt and Due Process

Injustice And Discrimination

I want to mention two additional developments in the sexual assault area that suggest that people are beginning to protest and push back against infringements of due process and fairness.

First, 16 members of the University of Pennsylvania Law School faculty have written an Open Letter criticizing the University’s new procedures for investigating and adjudicating complaints of sexual assault.  The letter refers to the pressure placed on the University to adopt these procedures under threat of withdrawal of federal funds, but notes that the procedures undermine “many protections long deemed necessary to protect from injustice those accused of serious offenses.”  The 16  faculty members comprise a politically diverse group with both liberals and conservatives significantly represented.  This Open Letter builds upon the momentum of another such letter from members of the Harvard Law faculty.

Read More

Why Can’t a Man Be More Like a Woman?

In My Fair Lady (based on George Bernard Shaw’s Pygmalion), Professor Higgins asks why can’t a woman be more like a man?  But these days, the sentiments underlying that question are more likely to be reversed.

In this article, a 50 year old woman laments the behavior of men.

There seems to be a gender imbalance, vis-a-vis [appearance]. All the women I know are tolerant of middle age showing itself in a chap. We quite like a late flowering, in fact: the silvering, the smile lines, the coming of bodily sturdiness.

By contrast, she notes that 50 year old men favor younger females:

It’s true that men don’t see me any more. It’s sobering to walk down the street observing how the 50-year-old men behave, paying attention to what they’re looking at as they stroll along. They are not looking in shop windows. They are not looking at me. They are looking at women half their age.

The suggestion is that men are somehow more superficial and really inferior.  Women are after substance; men are after looks.  And so, why can’t men be more like women?

But this story is a mirage – a false tale that our age seems to repeat.

Read More

Article III’s Case-or-Controversy Requirement: The Original Meaning

Another of the papers held at the Works-in-Progress Conference at the Originalism Center at the University of San Diego this past weekend was The Contested History of Article III’s Case-or-Controversy by James Pfander of Northwestern University Law School.  Pfander’s paper provides evidence that early Congresses authorized and courts allowed lawsuits that do not seem to satisfy the modern Article III doctrine in terms of injury in fact and adverseness of the parties.  (While Pfander’s paper is not yet available online, a longer related paper is.)

One of Pfander’s examples is the naturalization proceeding that involved an action by an individual in court seeking citizenship.  The government was not a party to the proceeding.  According to Pfander, this proceeding does not involve an injury in fact and does not involve adverseness.  It does not involve injury in fact, because the applicant for citizenship has not been denied his citizenship by the government.  He is simply applying for it in court.  It does not involve adverseness because the government has not taken an adverse position to the applicant for citizenship.  The government is not involved. Other noncontentious proceedings included administrative proceedings in bankruptcy jurisdiction and ex parte warrant applications.

Read More

The German and Dutch Founding-Era Translations of the Constitution

This past weekend, the Center for the Study of Constitutional Originalism at the University of San Diego held its Sixth Annual Works-in-Progress Conference.  I had thought I might blog about a couple of the papers.

One of the papers – Founding-Era Translations of the Federal Constitution by Christina Mulligan, Michael Douma, Hans Lind and Brian Patrick Quinn – involved the discovery of some new information about the original meaning of the Constitution.  At the time of the Constitution, significant portions of Pennsylvania and New York were respectively inhabited by German and Dutch speaking citizens.  As a result, the Constitution was translated into German and Dutch during the ratification contests in these states and these translations were relied upon by the German and Dutch speaking citizens.

For originalists, these translations represent an important new piece of evidence about the original meaning.  They are in some ways similar to commentary at the time that indicates the meaning of the Constitution.  But the translations differ in that they translate the entire Constitution.  And unlike contemporary dictionaries, the translations are in context – that is, rather than the modern originalist having to consult a dictionary with a number of word meanings, he needs only to review the word that the translator inserted into the specific clause. 

Read More

Reacting to Lincoln

In my previous post, I wrote about a talk that I had recently given about Lincoln.  I had not expected it to be terribly controversial – in fact, I wondered whether it was such common knowledge that it was not worth reporting.

But there is something about Lincoln that leads people to react in extreme ways.

Let me start with the long criticism by the first commenter, which is then endorsed by the second commenter.  The comment goes on and on, in an extremely intemperate way. The principal complaint appears to be that I took Lincoln at his word and did not conclude that he repeatedly lied to the American people about his views on slavery.  For this, I am accused of somehow not respecting Lincoln.  I would think if I had accused him of lying, without any foundation, that I would be open to criticism.  But apparently the opposite is the case.

The funny thing is that my post did not suggest that Lincoln personally approved of slavery or would not have liked to have eliminated it more quickly.  Quite the contrary.  As I said, “in Lincoln’s defense, he believed that any stronger position would have been rejected by the American people and therefore this was the best that could be accomplished for the slaves.”

Read More