Fourth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference
Mike Rappaport
Recently, the Fourth Annual Originalism Works in Progress Conference was held at the University of San Diego Law School. And now the video proceedings of the seven papers are available. The papers given at the conference, which involved various aspects of originalism, were as follows: James Allan (Queensland), Australian Originalism without a Bill of Rights: Going Down the […]
More on Prosecutorial Discretion
Mike Rappaport
As Mike Ramsey recently noted, President Obama’s order not to enforce the immigration laws against certain illegal immigrants (who came to the US as children) has been challenged. The basis of the challenge is that Obama's order is inconsistent with the governing statute. The District Court recently held that the plaintiffs are likely to prevail […]
More on Originalism and Same Sex Marriage: A Response to Mike Ramsey
Mike Rappaport
My position on the constitutional question of whether gay marriage is required is that there are reasonable interpretations on both sides of this issue. One danger of such a position is that it puts one in a no win position, but – hey – you have to go where the evidence leads you. Mike Ramsey […]
A World Without Chevron
Mike Rappaport
Let me complete my set of posts on Chevron by explaining what legal doctrine would look like without Chevron. Chevron was justified in part based on the view that the prior doctrine was a mess because it left no guidance as to whether deference would be given to an administrative agency in any specific case. That Chevron has turned […]
The Nontextual and Made Up Chevron Doctrine
Mike Rappaport
In my last post, I discussed how the Chevron doctrine – which grants administrative agencies the power to choose any reasonable interpretation of statutes that they administer – allows agencies additional legislative power and therefore exacerbates the combining of legislative and executive powers of the administrative state. Here, I want to explain why the doctrine is […]
The Problematic Chevron Doctrine
Mike Rappaport
In my earlier post, I discussed how the Supreme Court's failure to enforce the nondelegation doctrine has allowed legislative and executive power to be combined. Here I want to discuss another way in which the Supreme Court has not merely allowed legislative and executive power to be combined, but has actually encouraged the process; and […]
More on Separating Legislative and Executive Power
Mike Rappaport
I should have noted that the proposal I discussed in my earlier post actually has been promoted in the form of the REINS Act, which stands for Regulations From the Executive in Need of Scrutiny Act. Jonathan Adler has a post and article on the subject, where he notes his debate with Jonathan Siegel. Jonathan discusses both constitutional and policy issues concerning the […]
Separating Legislative and Executive Power
Mike Rappaport
There is a strong argument that the Constitution's original meaning employs a strict separation of powers approach. But many people argue that it would be too difficult to go back to this arrangement after the New Deal combined the powers in administrative agencies. Previously, I wrote about how the separation of judicial and executive power could […]
Scalia, Marshall, and Obamacare
Mike Rappaport
Over at Balkinization, Sandy Levinson makes some typically provocative claims about Justice Scalia: So in rereading Justice Scalia's fulminations, I was struck by the following sentence: "Article I contains no whatever-it-takes-to-solve-a-national-probem power." This is, of course, typical Scalia, clever phrasing that lulls the reader to say "of course." . . . Still, isn't Scalia's exuberant pronouncement directly […]
Michael Rappaport: Originalism and the Colorblind Constitution
Mike Rappaport
Michael Rappaport (University of San Diego Law School) has posted Originalism and the Colorblind Constitution on SSRN. Here is the abstract: The legal literature on the subject of originalism and affirmative action asserts two propositions: that originalism strongly supports the constitutionality of affirmative action and that the two originalist justices – Justices Scalia and Thomas […]