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).

Justice Scalia’s Worst Opinions

Justice Scalia testifies on Capitol Hill in Washington

Recently, there has been some discussion, by admirers of Justice Scalia, of what is the Justice’s worst opinion.  Mike Paulsen argues it is Employment Division v. Smith, where Scalia for the Court interpreted the Free Exercise Clause to provide less protection for those who seek religious exemptions from general laws.  Mike Ramsey mentions both Whitman v. American Trucking (expansive view of Congress power to delegate to the executive) and Gonzales v. Raich (expansive view of Congress necessary and proper power) as possibilities.

Scalia’s views on the nondelegation doctrine are potentially important.  While the justices on the right have supported limits on Congress’s commerce power, there has been no similar efforts as to Congress’s power to delegate.  There are several reasons for that but one important reason is that Scalia would not have gone along.

In my view, though, Scalia’s worst opinions are his series of opinions defending the Chevron doctrine.  There is a reasonable argument that if Scalia had not been on the Court, the High Court would never have adopted the broad Chevron doctrine.  The Chevron decision itself, written by Justice Stevens, was probably never meant to have adopted the broad rule of deference that it has become.  Instead of adopting a categorical rule that required deference to agencies for both pure questions of law and mixed questions of law and fact, it was probably intended merely to hold that the particular statute at issue in that case – the Clean Air Act – allowed the executive deference as to the particular type of decision in that case.

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The Philosophy of Governance in Game of Thrones

The HBO television show Game of Thrones, based on the books by George R. R. Martin, has begun its fifth season.  Martin wrote the books in part based on the concern that J. R. R. Tolkien had focused on the war against evil and had neglected the difficulties of governing.  Martin’s books focus on the latter.

I know my Game of Thrones mainly from the television show rather than the books (although I have read the first book).  So it is always possible that my thoughts here might turn out to be inconsistent with later developments in the books.

(Spoiler alert: the following post assumes that you have finished the fourth season of Game of Thrones.  If you have, it is safe to read.)

My view is that Martin believes that desirable governance is something of a golden mean between two extremes.  On the one hand, there is the philosophy of governance of the Starks – Ned and his eldest son, Robb.  Both of these leaders are admirable men in a way – they are mainly honorable and seek to follow moral norms.  Yet disaster befalls both of them.  Ned is killed largely because he does not act strategically or decisively, warning the Queen and allowing her to act against him.  As a result, his family is devastated.

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Why Do Some on the Left Believe in Income Equality?

In my last post, I discussed why one should care about economic mobility for the poor rather than  income equality.  The basic point is that we should care how well the poor are doing rather than their relative position compared to the rich.  If we can increase the wealth of the poor by $100, we should do so even if that involves giving the rich an extra $200.

So why do some people on the left focus on income equality rather than mobility for the poor.  One possibility is that focusing on income equality allows them to argue directly for the result that they like – equality.  If they had to discuss whether certain institutions, such as free market institutions, helped the poor, it would at best make their arguments messier and at worst sometimes support free markets.  It is safer and simpler to argue for income equality and implicitly assume that money provided to the rich is always taken out of the pockets of the poor.

But this explanation simply moves us back a step: why don’t these people on the left care enough about the poor to focus on their situation, even at the risk of allowing these “argument costs.”  There are several possibilities.

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Income Equality and Economic Mobility

In his most recent New York Times column, Tyler Cowen writes about two competing goals concerning economic distribution:

Income equality is about bridging the gap between the rich and the poor, while economic mobility is about elevating the poor as rapidly as possible. Finding ways to increase economic mobility should be our greater concern.

I agree completely.  In fact, I find it hard to understand how anyone can be concerned with income equality rather than economic mobility.

First, it seems clear that people should be concerned with economic mobility.  If one is concerned about the poor, the relevant normative question is not how much poorer than the rich they are, but how high their standard of living is.  If the only choice is increasing a poor person’s income by $100 while also increasing a rich person’s by $1000, one should do it.  Otherwise, you do not really care about the poor.

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Gay Marriage and Foreign Law

The New York Times runs an interesting story about dueling amicus briefs submitted in the gay marriage case before the Supreme Court about the extent of gay marriage in other countries, especially constitutional and liberal democracies.  The briefs disagree about the extent of gay marriage, in part because they use different measures for how to count the countries.

The question whether the Supreme Court ought to consider the laws of other countries in deciding whether to interpret the Constitution is one that has been actively debated in the law review literature.  I have largely neglected this literature, since it seems so obvious what the correct originalist answers are.  (But see this post by co-blogger John McGinnis, who does write in the area.)  First, considering the present law of other countries is obviously not directly relevant to the original meaning of a Constitution written in late 18th century America. Second, it is theoretically possible that the meaning of the clauses might make what other countries do relevant (for example, a clause that asks whether a rule is practicable), but I have not really seen a persuasive argument that attributes any such meaning to one of our constitutional clauses.

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Korematsu, National Power, and Individual Rights

One of the key cases in modern Constitutional Law is Korematsu v. United States, where the Supreme Court held that the exclusion of Japanese citizens from large parts of the West Coast was constitutional. (While the case technically did not cover the internment of the Japanese, the exclusion of Japanese from such a large area without any individualized suspicion renders both internment and exclusion to be largely subject to the same analysis that I make here.) This case is normally thought to represent an egregious failure on the part of the Supreme Court to enforce constitutional law.

But things are more complicated than they at first seem. To begin with, the normal argument is that the Supreme Court should have struck down the exclusion and internment as a violation of the Equal Protection Clause. But the Equal Protection Clause does not apply to the federal government. For that reason, the major nonoriginalist critics of Korematsu argue strenuously that the Equal Protection principles are somehow reverse incorporated or otherwise applied to the federal government. That ignores the text and is a mistake. For more of my views on the matter, see here.

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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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