Liberty Law Blog

Originalism, Recess Appointments, and The SG’s Noel Canning Cert Petition

by Mike Rappaport / 0 Comments

Filed Under: , , ,

Print Friendly

As many readers know, the Solicitor General’s Office has sought cert in the Noel Canning Recess Appointments case. Solicitor General briefs are supposed to be the best of the best, but in reviewing the brief I have found a problem: At the least, the SG’s Office has made an assertion without adequate support and in my view has probably made a misstatement about the history. This post will be getting into some detail, but it is necessary to correct the record.

One of the issues in the Recess Appointments case is whether the President may recess appoint someone to an office that was vacant when the Senate was in session. While I believe the text, structure, and history strongly indicate that he may not, the SG argues the opposite.

While the SG brief repeats many of the old arguments, it does present some new evidence. The most important originalist evidence that the SG offers is the claim that in November 1793, George Washington “recess appointed Robert Scot to be the first Engraver of the Mint, a position that was created by a statute enacted in April 1792. The vacancy arose when the statute was first passed, and was then filled during a later recess after at least one intervening session.” (P. 25)  If this claim withstood scrutiny, it would constitute the earliest example of a recess appointment made to an office that had been vacant during the session. But it doesn’t.

Here is a very plausible explanation as to how the recess appointment of Robert Scot was not to a position that was vacant during the session. The statute establishing the mint provided for various officers, including both the Chief Coiner and the Engraver. The statute specifically stated, however, that “it shall be lawful for the functions and duties of Chief Coiner and Engraver to be performed by one person.” 1 Stat. 247.  It turns out that Henry Voigt was appointed as the Chief Coiner (through a presidential nomination and consent of the Senate) in January 1793 (during the session of Congress).

Since there was no person serving as Engraver, it is reasonable to assume that Voigt performed both jobs. At a certain point, however, one may assume that President Washington determined that it made sense to fill the position with a separate person. If Washington made that decision during the recess of that year, then the office would have become vacant at the time. Thus, the recess appointment of Scott as Engraver would have occurred for an office that became vacant during the session. Continue Reading →

An Irish Tale of Austerity

by Theodore Dalrymple / 0 Comments

Filed Under: , , ,

Print Friendly

Thanks to the vast increase in human productivity over the last few decades economic crises are less easy to discern than they once were. Spain, for example, has rates of unemployment that equal or exceed those of the great Depression in the United States, yet there are none of the distressing scenes, at least so far, which the photographers caught for all time.

It is all too easy to be deceived, however. I have just come back from Madrid and Dublin (I am soon to leave for Lisbon) of which my view is essentially that of a visiting official delegation, driven from the airport to the center of the city and back again, having spent the intervening interval in the pleasant company of prosperous and cultivated people. And the fact is that anyone driving from Barajas Airport to the centre of Madrid would conclude that it was a much richer and better kept city than New York, Paris or London. Such signs of the downturn as I saw in Dublin were subtle and comparative. Going twice to the theatre, for example, I noticed that a third of the seats were not taken, which would certainly not have been the case at the height of the boom when I would have been lucky to get seats at all. (One of the plays was Mrs Warren’s Profession, by Bernard Shaw. What a frightful old windbag he was! That the crisis prevented some hundreds of people from being exposed to his theatrical rodomontade demonstrates that there really is a silver lining to every cloud.) Continue Reading →

Recess Appointments Held Unconstitutional Again

by Mike Rappaport / 0 Comments

Filed Under: ,

Print Friendly

Another U.S. Circuit Court has held that President Obama’s recess appointment to the NLRB was unconstitutional.   The Third Circuit in NLRB v. New Vista Nusing and Rehabilitation followed the decision of the D.C. Circuit in the Noel Canning case to hold that the Recess Appointments can only be made during an intersession recess.  I was pleased to see that the Third Circuit also significantly relied upon by my scholarship.  I hope to have something to say about the opinion next week.

Friday Roundup, May 17th

by Richard Reinsch / 0 Comments

Filed Under: , , ,

Print Friendly

In his new book, The One Thomas More, humanities professor Travis Curtright seeks to uncover the real More by eschewing the twin temptations of sentimental hagiography and ideological caricature in favor of serious engagement with More’s life and works in all their complexity.  His timing is propitious.  On the one hand, scholarship of the past 60 years has made huge strides, making it possible to speak reliably about the historical More.  On the other hand, outdated ideological and sectarian images of More persist both inside and outside the academy, tending to marginalize More’s influence as political and legal thinker.

This is a great shame, given that the issues so close to More, such as conscience rights, rule of law and the limits of state power, are of pressing concern today—even if the tyranny of our time is not that of a king with caesaro-papist pretensions, but that of an administrative state with increasingly totalitarian ambitions.  The One Thomas More goes a long way to restoring More’s reputation as a man of surpassing personal virtue and a thinker of profound moral and political insight.

  • What if you provided health insurance on a wide scale and it didn’t improve health outcomes? That’s the subject of the next Econ Talk which focuses on the recent Oregon Medicaid study and its interesting conclusions about healthcare policy.
  • The ongoing scholarly reverberations from Hosanna-Tabor: Paul Horwitz discusses on Prawfsblawg his new paper “Freedom of the Church Without Romance.” The paper itself comes from a conference on this main topic recently at the University of San Diego. Here is a link to other contributions to this conference.

Constitutional Presidentitis: Is There a Shot for That?

by Greg Weiner / 0 Comments

Filed Under: , , , ,

Print Friendly

It was March 27, 1809, three weeks into his presidency, and James Madison stood astride the world when he posted a letter to his predecessor Thomas Jefferson to inquire as to one particular secret of the office: “I forget whether the time piece in the sitting room [needs to be wound] monthly or weekly?”

That was then.  This being now, as recently as 1996 the White House employed a presidential attendant several days a week whose actual job—no, really—was winding clocks.  The late Senator Daniel Patrick Moynihan suggested that even Woodrow Wilson, champion of presidential government, might not recognize the office today:

A president who wrote and typed his own speeches is now at some removes succeeded by presidents who do not know the names of most of their speechwriters, much less of their lawyers, economists, statisticians, strategists, and yes, as of 1989 the White House demographer.  First the president got staff, then the staff got staff. (On the Law of Nations, 107) Continue Reading →

Brown v. Harlan

by Ken Masugi / 2 Comments

Filed Under: , , , , , ,

Print Friendly

 The 59th anniversary of Brown v. Board of Education should recall what that great decision did not do—overturn the racial segregation precedent of Plessy v. Ferguson (1896). Only by revisiting Justice Harlan’s classic dissent would segregation and Jim Crow in the law be finally overcome. Moreover such a Court opinion in Brown would have given civil rights laws a principled dignity and as well promoted an originalist jurisprudence that both protected individual rights and restrained government. This jurisprudence would be based on the Declaration of Independence.

Indeed, the brief for Homer Plessy argued that “The Declaration of Independence … is not a fable as some of our modern theorists would us believe, but the all-embracing formula of personal rights on which our government is based.” It is the “controlling genius of the American people.” And prior to the Plessy setback, as Charles Lofgren shows in his meticulous The Plessy Case (1987), this argument helped win anti-segregation suits at the state level. Continue Reading →

Will Indiana Zag from the Common Core?

by Richard Reinsch / 4 Comments

Filed Under: , , ,

Print Friendly

Indiana has emerged, once again, in the national spotlight of states willing to buck national trends and go it alone for the good of its citizens and future citizens who might take root in its borders. Already a leader in freeing up its tax and labor policies, making it a standout in the Midwest, the Hoosier state halted last week its implementation of the Common Core (CC) education standards. Currently, 45 states have adopted the CC, and it has been championed by leading “reform” minded conservatives like Jeb Bush, Bobby Jindal, and former Indiana Governor Mitch Daniels. CC was tied to Obama’s stimulus funds and his “Race to the Top” initiative that promoted charter schools and tied increased education funding to a state’s adoption of the CC. So much for free choice and competitive state policies. Continue Reading →

The De-Eroticized University

by Ken Masugi / 4 Comments

Filed Under: , , , , , , ,

Print Friendly

Most readers of this blog will already know the speech codes—viz. sex codes—that the Department of Education seeks to impose on universities, under the guise of preventing sexual harassment. Eugene Volokh has a lucid summary and the Office of Civil Rights of the Department of Education a tedious tongue-lashing about what constitutes sexual harassment.  The acts that keep Diversity Offices at full employment can range from telling a dirty joke to reading Anna Karenina. Similar directives go back into previous administrations, so, once again, the battle is not about a personality (even a powerful one such as Obama) but about the Administrative State.

It turns out, as Volokh notes, that sexual harassment at an institution of higher education might be found in any public or private discussion of sex, love, or eroticism. This means that the speech constituting the core purpose of higher education would have to be scrutinized by Washington bureaucrats. This is dangerous professionally—terrify your favorite male professor by sending him a DVD of David Mamet’s Oleanna, about a supposed episode of sexual harassment. And, more important, the vague codes enforce a debilitating self-censorship on professors and students that simultaneously increases the blandness and the freakishness of higher education. Continue Reading →

Originalism and Affirmative Action Part II: The Weakness of The Critics’ Argument

by Mike Rappaport / 4 Comments

Filed Under: , , , ,

Print Friendly

In my last post, I started to discuss the arguments made by various academics who maintain that the original meaning of the Constitution clearly allows affirmative action. Their arguments are based on a set of federal statutes passed at the time of the 14th Amendment that are said to have provided race based benefits to blacks. In this post, I want to explain why I argue these statutes are weak evidence in favor of affirmative action.

There are two basic reasons why this evidence is weak. First, these statutes are federal statutes and therefore not subject to the 14th Amendment. Second, the statutes relied upon by the critics are not good evidence of race based action.

Let me start with the fact that the statutes are federal statutes. The Equal Protection Clause and the Privileges or Immunities Clause (the two provisions that might impose equality requirements) only applied to the states, not to the federal government. Thus, when Congress passed these laws there is no reason to believe that it was interpreting or implementing the 14th Amendment, because the Amendment did not apply to the federal government.

The critics reply that it is unlikely that a Congress that enacted the 14th Amendment would have violated the principles in that amendment when passing federal statutes. This seems like a potentially strong argument at first, but not upon examination. This argument assumes that the same rules ought to apply to the states and the federal government. But clearly the enactors of the 14th Amendment did not believe that, since they did not apply the Amendment to the federal government.

Understanding Congress’s actions in this area requires offering an explanation for why the 14th Amendment was applied to the states, but not to the federal government.  In my view, the Amendment was applied to the states, but not the federal government, based on two considerations.  First, Congress needed a strict limitation on the states to stop racially discriminatory actions, but did not need one as to the federal government, because the latter was thought to be more trustworthy regarding the treatment of minorities.  Second, there was not full agreement on the content of the equality requirement.  While people were willing to compromise on that requirement as to the states, because of the need for a constitutional restriction on the states, they did not feel the same need to compromise as to the federal government.  Under this view, then, the fact that Congress might have passed laws that benefited (or harmed) blacks would not be indicative of the meaning of the 14th Amendment, because the Amendment neither applied to the federal government nor was intended to do so. Continue Reading →

Curbing the Regulatory State: The Search for a Second-Best

by Michael S. Greve / 2 Comments

Filed Under: , , ,

Print Friendly

On the volokhconspiracy, my colleague Todd Zywicki has a little piece on auto safety before and after NHTSA’s creation in 1970. It has a graph suggesting (though, Todd notes with excess caution, not showing) that NHTSA has made little if any difference. I use graphs of this sort when I teach State Farm (1983), the famous “airbags case” in which the Supreme Court took a “hard look” at NHTSA’s regulation—alas, without the slightest comprehension of what it was doing. I even happen to know the rate of decline in fatalities per passenger vehicle miles: 3.5% per year in the decades preceding NHTSA; 3.5% thereafter.

There is a rich literature on the subject, beginning with a 1975 study by Sam Peltzman. People, Peltzman argued, don’t behave like crash dummies: regulate, and they change their behavior (e.g. by driving more recklessly); and the response is big enough to wipe out the expected safety gains. That finding has held up pretty well, and you get a “Peltzman effect” and very similar results regardless of what you look at—drug safety and “effectiveness,” workplace safety, child labor, even the environment. This is a depressing performance, especially considering the cost of regulation. Alas, it’ll continue. Continue Reading →

1 2 3 4 5 6 7 8 »