When Leandra English, former chief of staff to the former director of the Consumer Financial Protection Bureau, asked a federal judge to block President Trump’s appointment of Mick Mulvaney to replace her departing boss Richard Cordray, and to install her as the CFPB’s rightful leader, Judge Timothy J. Kelly of the Federal District Court in Washington, D.C., denied her request. Yet English’s legal team, rejecting the idea that President Trump held the directorship in his hands pursuant to the Federal Vacancies Reform Act of 1988 and Article II of the Constitution, has since vowed to continue its resistance to the President’s action.
Our identity politics could use some Madisonian wisdom.
The Fourth Amendments has two main clauses: a rights clause and a prohibition on certain types of warrants clause (the prohibition clause):
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Significantly, the two clauses are separated by an “and.” This “and” has led to an uncertainty about the relationship between the two clauses.
A common element in modern American politics is love for the outsider. The expectation, or at least the hope, that a person unsoiled by Washington can be sent there to sweep it clean (or to “drain the swamp” in current parlance). Hundreds of political campaigns, if not thousands, have promoted candidates centered on this theme. This theme figures prominently in American political mythology. Think of such films as “Mr. Smith Goes to Washington,” “The Farmer’s Daughter,” “Dave,” and others. The idea that competence will translate from different vocations into politics played a role in the election of most of the…
The conversation Richard Reinsch has sparked on constitutional liquidation is less about constitutional meaning than about the ultimate—note “ultimate”—authority to ascertain it. It is true, as Randy Barnett, among others, notes, that liquidation is a longstanding topic in originalist thought. But Reinsch suggests a new avenue, writing that republican politics bien entendu is the ultimate (see above) expositor of constitutional meaning and that this is true generally, not just in ambiguous or indeterminate cases.
Is the U.S. Supreme Court a court? On the one hand, the answer seems obvious. It says so right in there in the name. Plus, the justices wear those funny robes. Strong evidence, I admit. On the other hand, see every Supreme Court decision involving constitutional law over the past century and a half. I could rest my case there, but I haven’t gotten to the point yet. If the Supreme Court is a court, it is a weird one, and that often creates a great deal of confusion about how the Court does or should operate.
Generally speaking, we might think that a key characteristic of a court is that it resolves disputes in accord with some pre-established set of legal rules. It is not clear that the Supreme Court actually does that. The justices have relatively little interest in resolving disputes, and they have little concern for pre-established legal rules.
Let’s unpack that a bit.
In The Federalist #10 James Madison famously observes that the “most common and durable source of factions has been the various and unequal distribution of property.” But Madison discusses numerous other sources of faction as well: