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).

A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part III: A Nonoriginalist Interpretation

In my prior two posts, I argued 1) for a large amount of legal immigration and 2) that the original meaning of the Fourteenth Amendment confers birthright citizenship, even on  the children of illegal immigrants.

Here, though, I want to present a nonoriginalist interpretation of the Fourteenth Amendment’s Citizenship Clause – one that would deny birthright citizenship to the children of illegal aliens. My principal aim in this exercise is to make a point about nonoriginalism: while many advocates of nonoriginalism seem to believe that nonoriginalism only leads to more rights of the type that they like, this is not true. While most advocates of nonoriginalism probably favor birthright citizenship, nonoriginalists should see that the original meaning here supports a result they like, whereas nonoriginalism allows a strong argument for a result they dislike. (It is also worth noting to originalists that nonoriginalism may sometimes support results they like.)

While the language “subject to the jurisdiction thereof” might have the original meaning as I mentioned in my previous post, it could also be understood as meaning  “subject to the exclusive jurisdiction of the United States.” Under international law at the time of the Fourteenth Amendment, states had jurisdiction over their citizens anywhere in the world, but of noncitizens mainly in their own territories. Thus, the children of solely American citizens born in the United States are exclusively subject to the jurisdiction of the United States. No other country has jurisdiction over them. By contrast, the children of foreign citizens, who were typically citizens of their parents’ country of birth, would not be subject to the exclusive jurisdiction of the United States, because they would be subject to the jurisdiction of their parents’ home country. This interpretation, then, has the consequence that the children of foreign citizens, both legal and illegal, would not be citizens at birth under the Fourteenth Amendment.

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A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part II: The Original Meaning

Having stated my political view that the United States should allow a large amount of legal immigration, I now turn to birthright citizenship: the idea that any person born in the United States should automatically be a United States citizen. While I will develop this point later, it should be noted at the beginning that these two issues do not necessarily coincide. One can favor immigration, even illegal immigration, and still be against birthright citizenship. As I will explain later, I hold a version of this position. Similarly, one could favor birthright citizenship and be against much immigration. The first sentence of…

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A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part I: Embracing Legal Immigrants

With immigration – both legal and illegal – being the subject of debate these days, I thought I would blog a few posts on the issue generally and on the 14th Amendment Citizenship Clause in particular.  To sum up my positions, I strongly favor legal immigration, I believe the original meaning of the Constitution requires birthright citizenship for the children of illegal aliens born in the United States, but I believe that a reasonably strong nonoriginalist argument can be made against such birthright citizenship for illegal immigrant children.

To begin, I favor legal immigration.  The United States is a country of immigrants and it has been greatly enriched by such immigrants.  The nation should allow large number of immigrants to enter its borders.  Sadly, the welfare state probably makes it necessary to allow fewer immigrants in, but still large numbers should be admitted.

Not only do I favor immigrants based on public policy reasons, I also sympathize with them.  I think of myself as coming from a family of immigrants, with three quarters of my grandparents being immigrants.  And my wife, and her family, are also immigrants.

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The Horror of Morrison v. Olson – Part III: There is No General Separation of Powers

I want to conclude my posts on Morrison v. Olson by discussing the majority’s treatment of the separation of powers issue generally.  As I mentioned in my prior posts, the majority approved the judicial appointment of the Independent Counsel and the restriction on the President’s removal of the IC through specific doctrines that involved appointment and removal.  But then after approving these aspects of the statute (as well as some others), the Court examined what it regarded as the overall separation of powers issue: the Court asked whether these provisions together were consistent with the separation of powers generally. This is…

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The Horror of Morrison v. Olson – Part II: The Supreme Court Embarrasses Itself

In my last post, I noted how the Supreme Court worked hard to hold the Independent Counsel statute to be constitutional, presumably on the ground that it was essential good government, only to find the political system rejecting it as poor policy a decade later. In this post, I criticize some of the arguments the Supreme Court used to hold the statute constitutional.

One key feature involved the appointment of the Independent Counsel. The statute provided that the IC would be appointed by a court. This appointment method would be constitutional only if the IC were an inferior officer, since the Constitution requires that superior (or non-inferior) officers must be appointed by the President with the advice and consent of the Senate.

Thus, the Supreme Court argued that the IC was an inferior officer, claiming that four factors suggested the result.  The argument here really was quite laughable. The IC is an extremely important position and the IC is not subject to the supervision of anyone in the government. The idea that the IC was an inferior officer, who was not important enough to require senatorial consent, was absurd. When Ken Starr was investigating Bill Clinton, he was arguably the second most important officer in the entire government (after the President). Yet, the Court treated his position as that of an inferior officer. If that is not bad enough, the Court actually argued that the conclusion that the IC was an inferior officer was clearly true and therefore it was unnecessary for the court to draw a more precise line. 

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The Horror of Morrison v. Olson — Part I: The Supreme Court’s Felt Necessities

Back when I first read Morrison v. Olson—the case on the constitutionality of the independent counsel statute—in 1988, I thought it was a horrible opinion. Back then I was at the Office of Legal Counsel and had a pretty strong bias in favor of the executive. But even though my views on executive power have changed significantly since then, I still believe the decision is just awful. I thought I would write a couple of posts on what is so wrong with Morrison.

Morrison involved a constitutional challenge on separation of powers grounds to the independent counsel statute. Under the statute, when there was evidence of wrongdoing on the part of the President or one of his advisers that could not be clearly ruled out as insignificant, the Attorney General was required to seek the appointment of an independent counsel from a federal court. The independent counsel was essentially independent of both the Attorney General and the President, although the Attorney General could remove the IC for cause.

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A Neo Dworkinian Argument for Originalism

A while back I did a bunch of posts on the relationship between positivism and originalism.  At the time, I also planned on doing a post on Dworkinian theory and originalism, but never got around to it.  I am finally doing the post.

Dworkin favored an interpretive theory of law that attempted to interpret or give an account of a legal practice by considering the criteria of fit and justification.  Under this view, one would first consider the actual legal practice – in the constitutional area, the actual Constitution and the judicial (and other) decisions interpreting it.  One would seek a constitutional interpretation that “fits” with these legal materials – that is consistent with the practice.  But one would also seek a constitutional interpretation that is justified – that renders the actual practice to be the best that it can be on normative grounds.  The overall best interpretation would be based on both fit and justification.

Under these criteria, I believe there is a strong argument for originalism – especially the type of originalism that John McGinnis and I have developed.  This type of originalism is both attractive normatively and does a reasonable job of fitting the practice. 

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Enforcing the Separation of Powers: Buckley v. Valeo

Every year, I teach the 1976 case of Buckley v. Valeo in my Administrative Law class – not the portion that involves campaign finance regulation, but the part that concerns the Appointments Clause.

Congress had established the Federal Election Commission, which was an independent agency with significant power to administer the campaign finance laws.  Congress, however, had adopted a novel method for appointing the six voting members of the Commission.  It provided that

two members are appointed by the President pro tempore of the Senate “upon the recommendations of the majority leader of the Senate and the minority leader of the Senate.” Two more are to be appointed by the Speaker of the House of Representatives, likewise upon the recommendations of its respective majority and minority leaders. The remaining two members are appointed by the President. Each of the six voting members of the Commission must be confirmed by the majority of both Houses of Congress.

This method of appointing the commissioners obviously departs from the Appointments Clause of the Constitution.  The Appointments Clause provides that the President may appoint an officer with the advice and consent of the Senate.  (It is true that the Clause does specify other methods for the appointment of inferior officers, but the commissioners, who run the agency, are clearly not inferior officers.) 

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Strang on Originalism’s Subject Matter: Why the Declaration of Independence Is Not Part of the Constitution

Lee Strang, who has made important contributions to originalism, has a new essay out on the proper role of the Declaration of Independence in originalist interpretation.  Here is the abstract: Scholars across the ideological spectrum have argued for a unique role for the Declaration of Independence in constitutional interpretation. These scholars’ arguments fall into two general categories: (1) the Declaration is the “interpretive key” to the Constitution’s text’s meaning; and (2) the Declaration is itself part of the Constitution. In this Essay, I argue that, from an originalist perspective, the Declaration is not part of the Constitution. I argue that originalism’s subject…

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Appointing an Originalist Supreme Court Justice

In the Weekly Standard, libertarian law professors Josh Blackman and Randy Barnett offer five recommendations to a new Republican President on how to select Supreme Court nominees. Conservative blogger and activist Ed Whelan disagrees with many of these recommendations. I thought I would weigh in on each of them.

1. Bruising confirmation battles are worth the political capital for a lifetime appointment.

Whelan largely agrees with this, but he points out that only certain Presidents will be willing to incur those costs. That is certainly true. I would assume that both sides believe that it is important to elect a President who is committed to originalism and lawfulness, and therefore who would be willing to fight the good fight on this issue.

2. Paper trails are an asset, not a disqualification.

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