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).

Removal of the Director of the Consumer Financial Protection Bureau

Recently, a three judge panel on the D.C. Circuit held in PHH Corp. v. Consumer Financial Protection Bureau, that the for cause removal provision for the Director of the Consumer Financial Protection Bureau was unconstitutional.  Rather than striking down the entire statute, the court struck the for cause removal provision, leaving the Director subject to removal at the pleasure of the President.

The Bureau is an example of the newest philosophy in administrative governance, which the Democrats have pursued in Sarbanes Oxley, Obama Care, and the Dodd-Frank banking act.  The idea is to maximize the independence of administrative agencies and to enhance their power.  In terms of maximizing the independence of the Bureau, the Bureau does not answer to the President (that is what the for cause removal provision means) and it is funded through the Federal Reserve, so that the Congress cannot use its appropriations power to control the agency.  The power of the agency is enhanced, because it is controlled by a single director rather than a bipartisan commission as virtually all independent agencies are.  Needless to say, this new philosophy of governance is extremely problematic.

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The Mistakes of Chevron and a Separation of Powers Fallacy

In my previous post, I talked about how delegation came to dominate our government.  I focused on two types of delegation – delegation of policymaking discretion and delegation of legal interpretation, such as Chevron deference.

I suggested that Chevron was a disaster, because it greatly added to the delegations that had already occurred though congressional statutes.  The courts could have simply enforced those congressional delegations without adding to them with Chevron.  But instead they invented Chevron – which had not been enacted by Congress – and greatly expanded the delegations.

Chevron was also a disaster in another way.  One might believe that Republicans are generally more in favor of limited government than Democrats these days, especially as to government regulation.  This is not an uncontroversial judgment, but I believe it is largely correct.  And if that is so, then the Republican judges of the 1980s undermined their cause when they pushed Chevron.  Chevron allowed administrative agencies significantly more authority to enact regulations. 

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The Rise of Delegation

We now live in a world of delegation.  It is often said that most of the rules that are enforced at the federal level have not been enacted by Congress, but by administrative agencies.  It was not always that way.  The binding rules in the United States used to be enacted or recognized by other entities.  The statutory rules would be enacted by Congress and they would be interpreted by the courts.  Common law rules would be recognized by the federal courts.  And, of course, more areas were addressed solely at the state level.  It is true that agencies sometimes exercised delegated authority, but it was a much more limited affair.

This transformation to a world of delegation – to the Administrative State – has been quite astounding.  It is worthwhile pausing to consider some of the ways it happened.  There are two principal types of delegation that have occasioned this transformation: delegation of policymaking and delegation of legal interpretation.

The delegation of policymaking involves a congressional decision to authorize an agency to exercise policymaking discretion.  For example, many statutes that authorize agencies to take actions that are in the public interest are best interpreted as delegating such discretion to the agency.  The responsibility for this delegation largely lies with Congress, which decided to pass the statute.  The lead in this type of delegation has been taken by the Democrats – during the New Deal, the Great Society, and the Obama Administration – but the Republicans have certainly employed this tactic as well.  Additional responsibility for this type of delegation must lie with the Supreme Court, which after striking down a few delegations in 1935, has not struck down any, with the one possible exception of the Line Item Veto Act – the one delegation that would reduce the size of government.  

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Justice Scalia and Congress’s Power to Regulate Immigration

In a recent post, I noted that Justice Scalia has been criticized for departing from originalism in various areas.  But the positions that Justice Scalia took in many of these cases – including a prohibition on state affirmative action, limitations on regulatory takings, and protection of various state immunities, such as sovereign immunity and commandeering immunity – could have been defended on originalist grounds.  One area, however, where there is little to be said for Justice Scalia’s position has largely been ignored: the federal government’s power over immigration. In Arizona v. United States, Justice Scalia started strong, initially questioning the federal…

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Eighth Annual Originalism Works-in-Progress Conference

The University of San Diego's Center for the Study of Constitutional Originalism has announced the papers and commentators for the Eighth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference scheduled for February 17-18, 2017 at the University of San Diego Law School.   They are: Randy Barnett (Georgetown) & Evan Bernick (Institute for Justice), The Letter and the Spirit: A Theory of Good Faith Constitutional Construction. Commentator: John McGinnis (Northwestern) Will Baude (Chicago), Constitutional Liquidation Commentator: Bernadette Meyler (Stanford) Mitch Berman (University of Pennsylvania), Our Principled Constitution Commentator: Stephen Sachs (Duke) Jud Campbell (Richmond), Natural Rights and the First Amendment Commentator: Fred Schauer (Virginia) James Fox (Stetson), Black Originalism:…

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The Inconsistency of Justice Scalia’s Originalism

With the passing of Justice Scalia, various critics of the justice have made a sport of trying to point out areas where the justice might not have lived up to his own originalist principles.  I certainly think it is important for all justices, especially originalist justices, to follow originalist principles.  But I don’t approve of the attempt to use originalist principles as a club to attack originalists who sometimes did not live up to those principles.

It is hard to be a justice.  One does not have the luxury, like a law professor, of simply writing about the issues one feels comfortable discussing.  The issues come up with the cases (even given certiorari at the Supreme Court) and the justices must decide them.  Given the pressures and forces of judicial politics, especially in an age where nonoriginalism has been the dominant view for generations, it is hard to expect an originalist justice to be entirely consistent.

In determining how bad it was that a justice did not follow a principle, one must consider a variety of factors, including how difficult it would be to follow the principle (in terms of matters such as consequences and reputation).  That nonoriginalist justices follow their own political views – which can be adjusted to their own values, to current politics, or to most other things – is not an especially difficult thing.  Thus, comparing an originalist justice who follows originalism only 75% of the time with a nonoriginalist who follows nonoriginalism 95% or 100% of the time is misguided.  It is much harder to be the originalist.

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Constraining the White House Staff

We live in a world where an increasing number of things that are supposed to be done by the Congress are done by the executive.  Treaties are supposed to be approved by the President with the ratification of two thirds of the Senate, but the President makes many agreements on his authority based on a variety of claims.  Legislation is supposed to be passed by Congress but agencies do most of the legislating through rulemaking.  And wrongdoing by executive officials is generally reviewed by executive officials rather than by congressional impeachment.  Some of these actions may be constitutional under the original meaning, but some are not.

Another way that the executive takes action that is supposed to be shared with Congress is through appointments.  The Constitution provides that appointments are to be made by the President with the advice and consent of the Senate, but the President often makes appointments on his own.  Sometimes this was done through a broad understanding of the Recess Appointments Clause (which a majority fo the Supreme Court accepted, but see here for what I regard as the better view).

At other times, the President makes unilateral appointments of the White House staff on the ground that these staff members – however important their positions seem to be – do not constitute officers of the United States under the Appointments Clause.  The reason is that these staff members are said merely to give advice, to engage in nonbinding conversations with officials, or to convey messages from the president to officials – actions that would not involve the exercise of substantial authority and therefore would not implicate the Appointments Clause under the Supreme Court case of Buckley v. Valeo.   The public policy problem is that the number of these White House staff members is growing and therefore the power of the federal government is increasingly exercised by people who have not secured the consent of the Senate.  Again, some of these actions concerning appointments may be constitutional under the original meaning and some may be unconstitutional. 

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Politics, Ideological Disciplines, and Factual Inquiry

Over at our sister site, Econlog, Bryan Caplan has a post explaining why he hates politics.  The problem is the way politics brings out the worst in us.  He writes: I hate the way people think about politics, independent of the ultimate outcome. I hate the hyperbole of politics.  People should speak literal, measured truth or be silent. I hate the Social Desirability Bias of politics.  People should describe reality as it is, not pander to wishful thinking. I hate the innumeracy of politics.  People should focus on what's quantitatively important, not what thrills the masses. I hate the overconfidence of politics.  People shouldn't make claims they won't bet on, and shouldn't assert certainty unless they're…

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Constitutional Change, Article V, and the Presidential Election

Recently, I did a podcast interview on Constitutional Amendments and the Presidential Election.  The interview, which was conducted by the National Constitutional Center, also featured David Strauss of the University of Chicago.  Jeff Rosen, the President of the National Constitution Center and a Professor at George Washington Law School, was the interviewer.

It was an interesting discussion, which focused both on the constitutional amendment process and the impact that Hillary Clinton and Donald Trump might have on constitutional change if they were elected.

It was fun discussing these issues with David Strauss, because his views are so diametrically the opposite of mine.  Many nonoriginalists resist being described as living constitutionalists.  Strauss embraces it.  He takes the opposite position of mine on a whole range of specific issues, which follows from his more general approach.

Strauss believes two main things about constitutional change.  First, he claims that the actual practice of constitutional change occurs through judicial decisions and other governmental actions.  In fact, he believes that constitutional amendments are largely irrelevant.  Second, he believes that constitutional amendments are not generally a good way generally of changing the Constitution.  The way that is actually practiced – where judges follow a common law like system – is better.

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Federalism and Consensus: The Contrasting Cases of Gay Marriage and Medical Marijuana

One common way of thinking about the possibility of federal reforms – in both the legislature and the Supreme Court – is that they are more likely to occur as the number of states that enact those reforms at the state level grow.  For example, Ruth Bader Ginsburg once argued that the Supreme Court had stepped in too quickly in the abortion issue.  When Roe v. Wade was decided in 1973, only 4 states allowed abortion “in nearly all cases before the fetus was viable.”  But support for abortion was growing.  Ginsburg’s point was that the Supreme Court’s early and decisive action had prevented the country from continuing to change its mind gradually on the issue.  After such a development and a large number of states supporting abortion, a Supreme Court decision constitutionalizing abortion would have been less controversial.  By contrast, Griswold v. Connecticut, which recognized a constitutional right for married couples to have contraception, was a far less controversial decision in part because it struck down laws in only one or two states.

Ginsburg’s analysis of Roe recently came up when the issue of gay marriage was being debated in the country and decided by the courts.  It was commonly thought that the Supreme Court would wait until a large number of states actually had decided in favor of gay marriage before announcing it as a constitutional requirement.  And in 2015, when Obergefell was decided, 36 states allowed same sex marriage (although the process had ended up moving more quickly than many people expected).

Although 36 states allowed same sex marriage, the great majority of these states did so only because of court decisions.  A rough and quick count indicates that only 10 states legalized same sex marriage by legislative decision, with the remainder being required to do so based on judicial decisions.  Thus, while a significant elite supported same sex marriage, legislatures and the voters were much less supportive.

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