The Unconstitutionality of Prohibiting Faithless Electors
Mike Rappaport

Recently, there has been a bit of an originalist debate about the issue of the “faithless elector.”  David Post argues that “the original intent of the Constitution, supported by its text and overall structure, not only permits but also ‘requires’ presidential electors to exercise ‘discretion and independent judgment’ in casting their ballots.  Mike Ramsey responds […]

Clear Originalist Cases
Mike Rappaport

One of the difficult issues for originalism is what it means concretely for the United States Constitution.  What actually is in the original meaning of the various provisions of the document? I must admit that I find this to be difficult.  If one has a sophisticated and open minded view of interpretation – which I […]

Mad Dog Mattis, the 7 Year Delay Provision, and the Appointments Clause
Mike Rappaport

President Elect Donald Trump has announced that he will be nominating James “Mad Dog” Mattis to be Secretary of Defense.  However, a statute requires “retired military officers to be out of uniform for seven years before they can become the civilian head of the armed forces.”  While it seems quite possible that Congress will be […]

New Book: “The Missing American Jury” by Suja Thomas
Michael Ramsey

Recently published by Suja Thoams (Illinois): The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (Cambridge Univ. Press 2016).  Here is the book description from Amazon: Criminal, civil, and grand juries have disappeared from the American legal system. Over time, despite their significant presence in the Constitution, juries have […]

Removal of the Director of the Consumer Financial Protection Bureau
Mike Rappaport

Recently, a three judge panel on the D.C. Circuit held in PHH Corp. v. Consumer Financial Protection Bureau, that the for cause removal provision for the director of the Consumer Financial Protection Bureau was unconstitutional. Rather than striking down the entire statute, the court struck the for cause removal provision, leaving the director subject to […]

The Mistakes of Chevron and a Separation of Powers Fallacy
Mike Rappaport

In my previous post, I talked about how delegation came to dominate our government.  I focused on two types of delegation – delegation of policymaking discretion and delegation of legal interpretation, such as Chevron deference. I suggested that Chevron was a disaster, because it greatly added to the delegations that had already occurred though congressional […]

The Rise of Delegation
Mike Rappaport

We now live in a world of delegation.  It is often said that most of the rules that are enforced at the federal level have not been enacted by Congress, but by administrative agencies.  It was not always that way.  The binding rules in the United States used to be enacted or recognized by other […]

Justice Scalia and Congress’s Power to Regulate Immigration
Mike Rappaport

In a recent post, I noted that Justice Scalia has been criticized for departing from originalism in various areas.  But the positions that Justice Scalia took in many of these cases – including a prohibition on state affirmative action, limitations on regulatory takings, and protection of various state immunities, such as sovereign immunity and commandeering […]