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: Article III Administrative Judges and More Radical Changes

In my last several posts (see here for links), I have written about the possibility of constraining the executive branch and regulation through statutory reforms.  I have focused on reforms that might be desirable and that might actually be passed by a Republican Congress with a Republican President. Of course, if one wanted to depart from the constraint of what might actually be enacted in the short term, one could contemplate more radical reforms that might be desirable. For example, one serious problem with present administrative law is that it allows agencies to adjudicate matters on a case by case basis.  These…

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Federalist Society Panel on Sexual Assault on Campus

This panel is a great summary of the various positions on the sexual assault issue.  There were two people on the right – one conservative and one sounding more libertarian – and two on the left – one representing the Administration and one representing a women’s group.  Everyone played their parts perfectly.

While I recommend listening to the entire panel, here is a brief summary of the presentations with some of my own commentary.

1. The first panelist was Lara S. Kaufmann, Senior Counsel & Director of Education Policy for At-Risk Students at the National Women’s Law Center. Her presentation was a stereotypical talk on the subject by a member of a feminist interest group. Kaufman focused on how women are at risk, offering statistics and other evidence entirely devoted to showing the risk, and literally said not a word about the due process rights of people accused of sexual assault.  It is as if she does not care about them.

My guess is that her presentation was not very persuasive to a Federalist Society audience.  It would have been more effective if it had acknowledged and attempted to rebut the due process concerns and the charges that sexual assault statistics are often spurious.  But she did neither.  

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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.

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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.

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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.

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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. 

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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?

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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.

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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.

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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.

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