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).

Other Advisory Acts That Are Constitutional: The Legislative Veto and the White House Staff

In my last post, I argued that a national referendum on some important issue, such as whether the U.S. should withdraw from NATO or the UN, would probably be constitutional so long as it was nonbinding.  That it was technically nonbinding would not prevent the relevant decisionmaker -- say the President -- from choosing to follow the referendum's result. This aspect of the Constitution is not unique.  There are various other areas where technically nonbinding acts are allowed (and often followed), even though they would be unconstitutional if they were binding.  One involves the legislative veto.  A binding legislative veto, where…

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National Referenda and the U.S. Constitution

One interesting aspect of the Brexit decision was that it involved a legally nonbinding referendum. The UK Parliament was not legally bound to follow the result, but nearly everyone accepts the result, with a statement like, the people have spoken and we have to follow it. I think part of the reason for this is that prior to the vote, it was recognized that this decision would be decisive, even though it was technically nonbinding. Thus, it would be morally illegitimate not to follow the decision because one did not like the result. Keith Whittington makes a similar point about…

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Starvation and Socialism in Venezuela

I don't often complain about the bias in New York Times stories -- since it is so common that one could easily blog about that and nothing else -- but this story about starviation in Venezuela particularly caught my attention. In what is a pretty long story, the Times does not deem it fit to even raise the possibility that the food shortage in Venezuela is due to the socialism pursued by its leaders. This is not all that surprising. The typical Times reader probably does not draw the connection, so why should the newspaper. The article actually makes it sound in…

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Originalism and the Second Amendment

I thought I would weigh in on the dispute between Mike Ramsey and Chris Green on originalist theory and the Second Amendment.  Ramsey writes:

Suppose that it’s right that concealed carry restrictions were common in the founding era and no one thought they infringed any constitutional right. Is Professor Dorf suggesting that they nonetheless could be unconstitutional today? I can’t imagine how, as an originalist matter, that could be so. Perhaps if the text of the constitutional restriction were wholly incompatible with the founding era belief, we would say that people in the founding era had made an error. But here the language is at best ambiguous on the right to concealed carry (even if one thinks “bear[ing] Arms” means carrying them in public). If the language can be read in a way that comports with the consensus founding-era understanding of it, that seems pretty conclusive to me.

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Delegation, Unilateral Executive Authority and the Decline of Democracy

In a recent post, I discussed how Cass Sunstein argued, with the aid of the Star Wars saga, that delegation to the executive could be dangerous to democracy.  While Posner and Vermeule contend that democracy favors delegation, because the democratic legislature has chosen to delegate, Sunstein notes that delegation can lead to the end of democracy, as it allows the executive to permanently displace the legislature.  This was the case with Emperor Palpatine and with Adolph Hitler, both of whom received delegations of authority that they used to rule and never allowed the legislature to take back the authority.

Sunstein notes that George Lucas, the principal author of Star Wars, had analyzed the declines of democracies.  According to Lucas, “You sort of see these recurring themes where a democracy turns itself into a dictatorship, and it always seems to happen kind of in the same way, with the same kind of issues, and threats from the outside, needing more control.  A democratic body, a senate, not being able to function properly because everybody’s squabbling, there’s corruption.”

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The Most Important Person in America

The following post is written by Bill Levin, my friend and former colleague from the Office of Legal Counsel. He has written in this space before.   With fewer than 50 days to the start of the Democratic convention, the legal and political peril of Hillary Clinton has reached its climatic phase. Her career has come full circle, from a staffer in the Watergate proceedings to the lead in Emailgate, with two presidencies in the balance. Prior to the recent State Department IG Report, it was widely believed that Mrs. Clinton could weather the storm. The FBI has avoided official comment, except to call…

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Did the FBI Fail and Is It Failing to Admit It?

The dots appear to have been connected. Yesterday, I noted that the FBI had questioned the mass murderer (MM) in 2013, based on his claims that he knew terrorists. The FBI concluded that his claims could not be substantiated. But then in 2014 they discovered that MM actually had contact with a terrorist who engaged in a suicide bombing. The 2014 event confirmed that MM knew terrorists. What did the FBI do? They closed the investigation. It now turns out that, had they kept the investigation open, his mass murder might have been prevented. MM was placed on a federal watch list for 10…

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The FBI and the Mass Murderer

It is too soon to say much about the horrific mass murder in Orlando.  But I cannot resist saying something, so I will ask some genuine questions.  The mass murderer – I will not repeat his name, but simply refer to him as MM – apparently was briefly investigated twice by the FBI, but the Bureau concluded there was insufficient information to justify a continuing investigation:

FBI Assistant Special Agent in Charge Ronald Hopper said agents questioned him two times in 2013 after he allegedly invoked ties to terrorists during a dispute with co-workers.

“We were unable to verify the substance of his comments and the investigation was closed,” Hopper said.

The following year, agents talked to him again about his contact with suicide bomber Moner Mohammad Abusalha, a Floridian who joined a branch of Al Qaeda and blew himself up in a truck packed with explosives in Syria in 2014.

Hopper said agents “determined the contact was minimal and did not constitute a substantive relationship.”

The report about the 2013 questioning is ambiguous.  Does it mean that the FBI was unable to verify that MM actually had ties to terrorists or that he had made the statements?  The more likely interpretation is the former one.  Let’s assume that the FBI was correct in reaching this conclusion.

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Cass Sunstein on Star Wars

Over at the Volokh Conspiracy, Cass Sunstein has been blogging on his new book on the Star Wars movies.  He loves them and finds a variety of things to say about them that are more serious than Star Wars.  One post is about why success is so hard to predict, another is about the hypothetical writers behind texts, and a third is about the separation of powers.  It is hard to tell without reading the book if Sunstein saw all of this in Start Wars or just loved the movies so much, that he tried hard to find interesting things to say about them.

Will Baude, another law professor, reviews  Sunstein’s new book in the New Rambler.  Baude’s main concern is that the producers of the new movie, the Force Awakens, announced that they would ignoring the large canon of books that have been written about Star Wars and that George Lucas always followed.  This might seem like a minor thing to most movie viewers, but Baude is on strong ground in noting the importance of “world building” in the sci fi/fantasy world and how a large number of books can powerfully develop such a world.

My own objection to the Force Awakens is that it was essentially a remake of the first movie.  It shows the artistic bankruptcy of modern movie making.  To watch the best art on film these days, one should turn to shows on HBO and Cable TV.  That is where the creativity.  Baude and I agree that the new movie should have told a different story about a different part of the Star Wars universe.  Of course, the producers would have probably made less money that way, which helps to explain why so many movies suck these days.

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Trump, Vicious Cycles, and the Possibility of Reform

One of the most interesting aspects of the Trump candidacy is the way in which it involves a Republican (or, if you will, the Republican nominee) employing tactics or promoting programs that are related in some way to those used by the Democrats at times. This makes Trump much less attractive to those who favor limited government.  But it raises the question whether he might be able—unintentionally of course—to raise the consciousness of the Democrats to the problems with their approach.

Start with strong executive power. President Obama and the Democrats embrace strong executive power. There are many reasons for this. One is that the Democrats want a government that can pass large numbers of regulations and is quick-acting. Another is that the Democrats do not want to be limited by the public opinion constraints of the legislature. But, of course, executive power is dangerous and is problematic, especially when one is on the receiving end of it.

While Republican Presidents have used executive power, they have not used it—especially in the domestic sphere—to the extent that Democrats have. And they have not played as fast and loose with the law as President Obama has.

Many people have the impression, not without reason, that a President Trump would be willing to aggressively use executive power. This concerns the Democrats, especially since much of Trump’s agenda is anathema to them. Could this persuade the Democrats that executive power is a dangerous thing that should be constrained?  It is hard to say, but if Trumpian executive power doesn’t persuade them, what would?

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