Putting an End to Lame Duck Actions
Mike Rappaport
The Biden Administration has been engaged in lame duck actions that are problematic because they would not have been done prior to the election. They are made worse by the fact that the President appears to have serious dementia, raising the question as to who is really taking these actions. For many years now, I […]
The Nonoriginalist Case Against Birthright Citizenship
Mike Rappaport
At the end of his post on birthright citizenship, Mike Ramsey writes: "On the other hand, for nonoriginalists, the case against birthright citizenship in light of modern circumstances (which are quite different from the time the Amendment was adopted) might seem considerably stronger." Some years ago, I wrote two posts on the Nonoriginalist Case Against […]
Would the Supreme Court Overturn Noel Canning?
Mike Rappaport
In the Wall Street Journal, Jed Rubenfeld argues that if President Trump were to use the Recess Appointments Clause to engage in an end run around the Senate confirmation requirement, the Supreme Court might overturn Noel Canning, which broadly interpreted the Recess Appointment power. After reviewing Justice Scalia’s strong originalist dissent in Noel Canning, Rubenfeld […]
Now Is a Good Time to Overrule Noel Canning
Mike Rappaport
President elect Trump has stated that he wants a new Senate majority leader who supports recess appointments for his nominees. This has led to criticism of Trump, with some viewing it as an attempt to bypass democratic norms. Any analysis of this question must start with the Supreme Court’s outrageous decision in Noel Canning – […]
The Recusal of Supreme Court Justices
Mike Rappaport
The Biden proposals on Supreme Court "reform" are framed by their proponents as an attack on a corrupt Republican Supreme Court. Thus, the "reform" is politically partisan and should be treated as such. But some of the ideas in the proposal are interesting in their own right and would be worthy of serious discussion if […]
Justice Amy Coney Barrett’s Concurrence in Trump v. United States
Mike Rappaport
Having criticized the majority opinion in Trump v. United States, let me move on to Justice Barrett’s concurring opinion. Justice Barrett is more concerned about the legitimacy of the reasoning than is the majority. And she ends up with a much narrower rule of presidential immunity. Since I criticized the majority opinion for its reasoning […]
A Vocabulary for Describing Non-originalist Decisions by a (Semi) Originalist Court
Mike Rappaport
Chris Green’s recent post discussing whether a decision that fails to follow originalism should be called an anti-originalist decision raises a more general question. How should we describe various decisions of the Supreme Court that might depart from the originalism in different ways? Now that the Supreme Court is originalist enough for questions to be […]
John McGinnis & Mike Rappaport on Emancipating the Constitution From Non-Originalist Precedent
Mike Rappaport
Over at Law and Liberty, John McGinnis and I have an essay out entitled “Emancipating the Constitution From Non-Originalist Precedent.” The essay argues that some of the recent Supreme Court cases used various devices to cut back on nonoriginalist precedent, without actually overruling that precedent. The essay begins: The biggest challenge to the rise of […]
Trump v. United States: Another Originalist Disaster
Mike Rappaport
The Supreme Court’s recent decision by Chief Justice Roberts is another originalist disaster, to be added to Chiafolo v. Washington and Trump v. Anderson. I plan several posts on the case, but let me start here by criticizing its lack of originalism. I did an earlier post on why there is no presidential immunity under […]
Wealth Taxes and the Direct-Indirect Tax Controversy
Rob Natelson
This post is from Rob Natelson, who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver and a former constitutional law professor at the University of Montana. He is the author of “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015) and a contributor to “The Heritage Guide to […]