Jennifer Mascott gave a talk at the University of San Diego Originalism Center on her new paper, which is to be published in the Stanford Law Review, on Who are the Officers of the United States? The paper engages in originalist research on an important topic that modern originalist scholars have largely neglected: how to distinguish between officers, who are subject to the Appointments Clause procedures, and employees, who are not. Mascott concludes that many more government positions constitute offices than modern law allows and therefore are subject to the requirements of the Constitution’s Appointments Clause. For many years, the question of…
The signaling model of education is pretty well known these days. Starting with Nobel-prize winning economist Michael Spence’s article on “Job Market Signaling” in the early 1970s, the extreme version of the model articulates a reason schooling would exist even if it did not increase human capital in the least. The canonical story goes something like this: There are two types of workers, high quality and low quality. Employers want to hire high-quality workers, and would be willing to pay them more. But they can’t tell high-quality workers apart from low-quality workers. If a potential employer were to ask applicants…
The questions surrounding the administrative state and its law are really big. They are institutional and constitutional, and they demand rigorous thought and engagement outside the Chevron box.
Our Constitution makes Congress the first branch of government, but the Capitol is today regarded almost as a house of ill-repute, both for the character of its members (not necessarily ours, but theirs) and its general contribution (or lack thereof) to the national well-being. As a legislature, its primary means of asserting itself must be to pass legislation, but it has become infamously inept in that work in this age of severe polarization and powerful interest groups happy to block changes to a status quo they find lucrative. Given the apparent permanency of these underlying factors, many observers now see the waning of Congress’s importance as both inevitable and unequivocally desirable.
A spring saunter through a campus as pretty as the University of Kansas is inordinately charming—tulips, apple blossoms, amorous robins—you know, the whole glorious array. The hundreds of tiny white flags fluttering in ragged rows seemed therefore appropriate, even vaguely comforting, like a patriotic memorial or perhaps a wedding in the offing.
The flags, though, weren’t part of a nostalgic swoon or public fête. What they heralded instead was a calculated scare campaign. Written in the sidewalk in chalk was “3,192” said to be “the number of sexual assault survivors on campus.” To emphasize the point, each flag was emblazoned “1 in 4” because, according to the campus Sexual Assault Prevention Education Center, “Annually 1 in 4 college women (cis) is sexually assaulted. Each flag you see represents a KU student-survivor.”
Uber is a company under attack by politicians and the media. Many politicians, like Bill De Blasio, want to restrain its growth to protect incumbent cab companies. Others want to undermine its business model by requiring that its drivers using its devices be employees rather than independent contractors. The New York Times recently ran a story clearly suggesting that the company is using unfair psychological tricks to keep drivers picking up customers.
These complaints lack merit. Protecting incumbents against new forms of competition is a classic harm to consumers. Uber drivers do not meet the traditional criteria for employees because, among other factors, the company does not control their hours or place of doing business. And as Geoffrey Manne shows, the management innovations Uber introduces through the understanding the psychology of workers have benefits to consumers and drivers alike.
But the assault on Uber also ignores a hugely important effect of company and similar services: they reduce inequality— which these same politicians and mainstream media argue is the most important issue of our time. Uber improves both the material condition of the middle-class consumer and the lower-middle-class driver. First, the consumer gets a service that starts looking more like having a chauffeur than a taxicab driver. For instance, he can summon a driver without previous notice and within minutes by pushing a button on his phone in the comfort of home rather than hail a taxi in a storm.
The recent case of Trinity Lutheran Church v. Comer raises the question of whether a church can be excluded from a competitive process for awarding state aid—in this case funding rubber floors on playgrounds to protect children when they fall.
The most powerful doctrinal argument for the Church is that a decision in its favor treats the Free Exercise Clause like other constitutional rights. A citizen (or other bearer of rights) cannot be forced to give up something provided by the state because he is exercising a constitutional right, absent a compelling state interest. As Justice Elena Kagan said at oral argument, “it is as strong as any constitutional principle that there is, that when we have a program of funding — and here we’re funding playground surfaces — that everybody is entitled that funding, to — to that particular funding, whether or not they exercise a constitutional right.”
Justice Kagan was describing the so-called unconstitutional conditions doctrine and she was correct that it is regularly applied across the range of constitutional rights. It is the pull of this doctrine and the felt need to make its application consistent that it is likely to move a very large majority of the Court, including Justices Kagan and Breyer, to rule in favor of the Church.
The arguments made in the oral argument against the doctrine of unconstitutional condition in this case are weak. One was that the program at issue here was competitive rather than universal.
I’m a little late with this but why am I always right? Back in February, I commented on the “sanctuary city” litigation: [L]awsuits filed by San Francisco and some other jurisdictions are, at best, wildly premature—“unripe,” as the lawyers say. That doesn’t necessarily mean they are stillborn. The Ninth Circuit’s recent travel ban decision strongly suggests that the ordinary rules governing preliminary injunctions, standing, statutory interpretation, and other lawyerly distractions no longer apply in these sorts of cases—perhaps because immigration is now, like climate change or gay marriage, one of those issues that “arouses the judicial libido,” to purloin a fine phrase of Justice Scalia’s. Or perhaps on…
In my last post, I want to discuss hard constitutional clauses – clauses where the original meaning of the constitutional provisions are extremely difficult to understand. In these cases, one might expect that the skills of the professional historian would be the most valuable. Yet, in the case of the 14th Amendment – in my view, the hardest part of the Constitution to understand its original meaning – recent discoveries have not primarily come from historians. Instead, originalists have a made a large number of important advances in this area. Thus, even in the hard areas, one cannot dismiss the…