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).

More on the Indictment of Rick Perry

I have looked a bit more deeply into the Governor Rick Perry indictment.  Unfortunately, the new information I have uncovered does not quiet my concerns that the indictment was improper.  Quite the contrary.

The basis of the indictment is that Government Perry threatened to veto an appropriation passed by the Texas legislature for a public corruption unit on the ground that the head of the unit had committed a crime.  Perry wanted the head of the unit to resign before he would approve the appropriation.

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The Indictment of Rick Perry

The indictment of Governor Rick Perry seems, at first glance, to be a political lawsuit without a substantial legal basis.  The lawsuits stems from the Governor’s threatening to veto and then vetoing funds to a public corruption unit based on the head of the unit having committed the crime of driving while intoxicated.

According to news reports and the prosecutor’s statement, there are two charges in the indictment: “Grand jurors in Travis County charged Mr. Perry with abusing his official capacity and coercing a public servant, according to Michael McCrum, the special prosecutor assigned to the case.”  The first claim is that Governor Perry improperly vetoed the funds passed by the Texas legislature.  The idea seems to be that it was improper for the government to veto funds based on the head of a unit having committed a crime.  The second claim is that he attempted to coerce the head of the public corruption unit to step down after her arrest for drunk driving by threatening to veto the funds unless she resigned.

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Barnett on the Invasion of Iraq

My friend Randy Barnett has an interesting post discussing his views on libertarian policy and the Iraq War.  He also discusses my recent series of posts detailing my change of position on the War.  I strongly recommend Randy’s post.

I agree with virtually all of Randy’s analysis. In particular, I agree with his skepticism “that the ex post results means that the invasion of Iraq was a mistake ex ante.”  The mere fact that the invasion of Iraq has in many ways turned out poorly does not necessarily mean it was a mistake.  I recognize that it is possible to interpret my posts as drawing that problematic inference, but that was not my intention.  Whether it makes sense to engage in an action ex ante should not be decided simply on the results, but on what made sense at the time. For example, it might make sense to undergo a medical procedure, even though we know that a certain percentage of the time it might lead to bad results.  If the medical procedure happens to lead to a bad outcome, there is a sense in which it was a mistake to undergo the procedure.  But the right way to analyze the decision is to ask whether we would make the same choice again, knowing what we did at the time.  If we would attempt the medical procedure again, even though there is a chance of a bad result, then undergoing the procedure was the right decision.  The same holds for public policy decisions.

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Originalism and Current Practices

With a view towards President Obama’s military actions against ISIS, Mike Ramsey has a good post on whether the significant limits imposed by the Constitution’s original meaning on the President’s power to initiate hostilities operate to place inconvenient constraints on the US’s ability to take desirable actions. Mike concludes that the original meaning’s constraints, while considerable, would still allow the US significant ability to take action.

Mike writes that the President: “has independent power to respond to attacks . . . on the United States”; to “deply troops to defensive positions in support of an ally” (and to respond if those troops are attacked); and to “transfer weapons and supplies to allied forces” (which in my opinion should have been done a long time ago).

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An Originalist Future

John McGinnis and I have a new essay, An Originalist Future, describing what the world would like if originalism became the dominant method of constitutional interpretation.  See here and here.   It is based in part on the last chapter of our book, Originalism and the Good Constitution, but goes beyond that chapter.

In the essay, we write:

Reviving a comprehensive originalism would greatly improve our polity, creating both better judicial decisions and a more vigorous constitutional politics.  It is a world where constitutional decisions would have good consequences and constitution making would become both popular and future-oriented.  It bears no resemblance to the world which critics of originalism fear—where the dead hand of the past traps the living into a dead end of anachronistic principles.  Only through a systematically originalist jurisprudence can constitutional law become what it must be if it is to act as the true rudder of the nation–simultaneously law that is unchanging and objective, law that is of high quality, and law that is subject to revision by the people of each generation.

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Bill Levin on The Aftermath of Halbig

My friend and former colleague from the Office of Legal Counsel, Bill Levin, has been following the Halbig case closely.  Here are his thoughts on the aftermath of the case. 

The aftermath of the D.C. Circuit decision in Halbig is encouraging.

On the PR front, it has been unexpectedly difficult for Obamacare defenders.  In recorded speeches from 2011 and 2012, Obamacare architect Jonathan Gruber confirms that the central premise of Halbig is correct:  Obamacare provides subsidies for state exchanges only (“[I]f you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.”).  Now in 2014 he says his statement, evidently recorded in varying versions on at least seven different occasions, and counting, was “just a speak-o—you know, like a typo,” which, unintelligible valley speak aside, cannot be accurate unless in the Michael Kinsley sense of accidentally telling the truth.

The multiple Gruber audio and video recordings are truly a smoking gun, readily available for all to evaluate the next time someone claims that Halbig seeks to undermine Obamacare, or in the colorful, but demonstrably unsound words of dissenting Senior Circuit Judge Edwards, “This claim is nonsense, made up out of whole cloth.”

To recap the whole cloth for perspective, Obamacare provides subsidies for an exchange “established by the state.”  Nowhere in its 906 pages does the statute manage to apply these simple words to the federal exchange.  Not once in the legislative history is a federal subsidy mentioned by a single legislator.  And now we have an architect of Obamacare, a distinguished MIT economist, not some random talking head or partisan opponent, plainly stating what the law plainly means.  “[I]f you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits.”  It could be a rallying cry, for it truly crystallizes the case, except that the sentence lacks style and cannot fit on a T-shirt.  Yet Obamacare supporters are taking to the barricades and a senior judge feels emboldened to claim the litigation is fanciful.  This could be the stuff of comedy were the stakes not so high. 

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The Invasion of Iraq: The Unreliability of US Reconstruction Policy

Let me now conclude my series of essays about why I have now come to believe that the US Invasion of Iraq was a mistake.  The short answer is that the invasion could have produced enormous benefits, but the US government and its political system was simply not competent enough to do the job successfully.

As I have discussed previously, the Bush Administration squandered a significant portion of the net benefits by not having enough troops or having a plan in place for the new government.  And the Obama Administration did little to constrain Maliki while the US was in Iraq.

Now let me conclude with the second enormous mistake by the Obama Administration: its withdrawal from Iraq.  As Charles Krauthammer recently wrote, the result of the Obama Administration’s withdrawal from Iraq

was predictable. And predicted. Overnight, Iran and its promotion of Shiite supremacy became the dominant influence in Iraq. The day after the U.S. departure, Maliki ordered the arrest of the Sunni vice president. He cut off funding for the Sons of Iraq, the Sunnis who had fought with us against al-Qaeda. And subsequently so persecuted and alienated Sunnis that they were ready to welcome back al-Qaeda in Iraq — rebranded in its Syrian refuge as the Islamic State of Iraq and Syria — as the lesser of two evils. Hence the stunningly swift ISIS capture of Mosul, Tikrit and so much of Sunni Iraq.

There is a longer story here.  For example, as Peter Beinart writes:

On December 12, 2011, just days before the final U.S. troops departed Iraq, Maliki visited the White House. According to Nasr [who worked in the State Department at the time], [Maliki] told Obama that Vice President Tariq al-Hashimi, an Iraqiya leader and the highest-ranking Sunni in his government, supported terrorism. Maliki, argues Nasr, was testing Obama, probing to see how the U.S. would react if he began cleansing his government of Sunnis. Obama replied that it was a domestic Iraqi affair. After the meeting, Nasr claims, Maliki told aides, “See! The Americans don’t care.”

Iraq has now become a serious problem and the future does not look promising.

It is interesting to ask why this limited victory at the end of Bush’s second term was squandered.  There are two points here.  First, the Obama Administration – for whatever reason – chose to withdraw from Iraq rather than to stay engaged in order to promote a freer nation.  It is not entirely clear whether this was done for political reasons or out of cluelessness, or both.  In the wider scheme of things, it does not matter.  The Obama Administration could not be counted on to act competently.

Second, the American people, or at least a sizeable portion of them, were not willing to sustain the actions necessary in order to maintain the gains from the intervention.  The American people did not punish Obama for his behavior at the time.  Instead, they believed his nonsense.

The bottom line here is that the political system – both the politicians and the American people – was simply not competent enough to pursue the nation building strategy in Iraq.  Nor is this a one time phenomenon.  While there are differences, the similarities between Iraq and Viet Nam are significant.

Some Republicans might place the blame on Democrats, arguing that the latter cannot be trusted with national security.  Even if one accepted the premise of this argument, that would change nothing.  That one of the two parties cannot be trusted to participate in long term policies for which they will inevitably have some responsibility suggests that those policies should not be undertaken.

In the end, I was mistaken to support the invasion.  It is not that the strategy could not have worked if the government had been competent.  The point is that the government is not competent.  Overestimating the competence of the government is a cardinal sin for a libertarian, even of the moderate type that I am.  I had been wiser in the past, and I should not have made the mistake.  I will try not to let it happen again.

The Invasion of Iraq: The Obama Administration’s Failure to Check al-Maliki

I have been in the process of describing the evolution of my views on the Iraqi invasion. In my last post, I described how the Bush administration, through blunders, had reduced what could have been enormous net benefits from the invasion into limited net benefits.

Here I want to briefly describe the Obama administration’s blunders in Iraq that finally led me to conclude that the invasion had been a mistake. If the Bush administration was, as I have said, incompetent, the Obama administration has been far worse – grossly negligent, at best.

The Obama administration was unwilling to take the actions in Iraq that were necessary to sustain the benefits produced by the Bush administration. In my view, there were two sets of errors: the administration’s failure to check Iraqi Prime Minister Nouri al-Maliki’s behavior while the United States was still in Iraq and then the U.S  withdrawing from Iraq.

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The Invasion of Iraq: The Bush Administration’s Incompetence Reduces the Benefits

In my last post, I wrote a bit about my changing views on foreign policy prior to the invasion of Saddam Hussein’s Iraq in 2003. Here I want to explain why I supported that invasion, ultimately with an idea to explaining why I now believe I was mistaken to do so.

September 11 made clear that substantial portions of the Middle East presented a danger to the United States and its people. What actions could we take to address that danger?

If the United States could help to establish a relatively free nation in Iraq – one that provided basic freedoms and some kind of democracy – that would not only be good for Iraq, but would help to establish a model for other nations in the region – one that might lead towards greater freedom in the area and greater safety for the United States.

While the concern about WMDs struck me as being plausible, that was never my main reason for supporting the invasion. Instead, it was establishing a more free nation in Iraq. Yes, this was a form of nation-building.  But if done right, it would create enormous benefits. I don’t believe this invasion violated the rights of  the Iraq people, who after all were being tyrannized by the dictator Saddam.

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