Departmentalism versus Judicial Supremacy – Part V: The Content of the Executive and Legislative Obligation to Follow Judicial Precedents
Mike Rappaport
In this post, I want to draw together some of my earlier posts to explore what the norm of judicial supremacy might be. Let me remind the reader of two points from my prior posts: First, the content of the executive and legislative obligation to follow judicial precedents turns in significant part on the relevant […]
It’s the Kennedy Court
Mike Rappaport
This post is not exactly originalism, but it does attempt to explain some of the departures from originalism this past term. There have been a number of recent reports on how and why the Supreme Court moved left this past term. Two notable pieces were this one in the New York Times and this one by Tom Goldstein at […]
My Reactions to King v. Burwell
Mike Rappaport
I am a strong opponent of Obamacare. But once I realized that a decision in King v. Burwell denying subsidies to people who purchase insurance under the federal exchanges would not help the cause of repealing Obamacare and might hurt it, my attitude towards the case changed. I felt much less politically invested in the issue and […]
Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System
Mike Rappaport
In my last post, I noted that the advocates of departmentalism do not rely on pre-constitutional practice to found their view. Instead, they tend to argue that the Constitution adopted a new system, one in which each of the branches is equally entitled to interpret the Constitution. The problem with this argument is that it lacks support. […]
Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History
Mike Rappaport
In my previous post, I noted that any obligation of the executive and Congress to follow court precedents – either a strong judicial supremacy or a milder obligation to follow a series of court decisions – would have its source in either an interpretation of the Constitution’s judicial power or federal common law. But that reading […]
Departmentalism versus Judicial Supremacy – Part II: Getting from Departmentalism to Judicial Supremacy
Mike Rappaport
After a short detour responding to Mike Paulsen, I am back to elaborating on my view of the departmentalism/judicial supremacy debate. As I noted in my last post, the basic question turns on whether the executive or Congress must follow judicial precedents. What might obligate the executive or Congress to follow judicial precedents? One starts, of course, with […]
Bolling v. Sharpe and Originalism
Mike Rappaport
Mike Ramsey reports on the posting of a new article by Gregory Dolin that attempts to justify the case of Bolling v. Sharpe, which held that a Fourteenth Amendment equality requirement applies to the federal government. This is a difficult argument to make, since the two provisions which are most likely to apply an equality requirement — the Privileges […]
Paulsen on Departmentalism versus Judicial Supremacy
Mike Rappaport
I have started a series of posts on the departmentalism – judicial supremacy debate in an effort to explain my position, which inclines towards, but does not go all the way towards judicial supremacy. But I am going to interrupt that planned series to briefly respond to a post written by my former Yale Law School classmate and OLC […]
Departmentalism versus Judicial Supremacy – Part I: Some Preliminary Distinctions
Mike Rappaport
Since I was away on vacation when this debate began, I am coming late to the party. But I have some distinctive views on this issue and so I thought I would write some posts about the matter. I should start out by saying that I have something of an intermediate view of the matter – I […]
What Would Happen if the Dormant Commerce Clause Were Overruled?
Mike Rappaport
With the debate in the Wynn case over the Dormant Commerce Clause, Michael Greve has once again criticized originalists for their views on the matter. Michael likes the Dormant Commerce Clause. As a policy matter, so do I. What’s not to like about a doctrine that prohibits or restricts states from engaging in protectionist and other similar […]