Combining Executive and Judicial Power
Mike Rappaport
One of the key issues in Administrative Law is that administrative agencies do not conform to the separation of powers. In a meaningful sense, agencies possess legislative, executive, and judicial power, which makes them a separation of powers monstrosity. In this post, I will discuss an aspect of this problem: the combining of prosecutorial and […]
Richard Epstein on “Constitutionalism, Originalism, and Libertarianism”
Mike Rappaport
Last month, the Center for the Study of Constitutionalism Originalism at the University of San Diego hosted a talk by leading Libertarian scholar Richard Epstein based on his new book The Classical Liberal Constitution. Commentary was provided by Larry Alexander, David McGowan and myself. You can watch the talk here. (You have to scroll down a […]
Mashaw on the Administrative State
Mike Rappaport
A recent book review by Joseph Postell discusses the new book by Jerry Mashaw entitled Creating the Administrative Constitution. Mashaw’s book is an attempt to rebut the common claim that the United States initially did not have an administrative state, but only developed one much later, especially during the 20th century. Postell does a good […]
The Modern Recess Appointment Tradition is Not Valuable
Mike Rappaport
I hate to seem like a one trick pony, but this another post on the Recess Appointments Clause. It is prompted by Mike Greve’s post in defense of the modern practice on recess appointments. Mike writes: I do think important interests are at stake . . . The Constitution sets up rival, competing institutions—and, as […]
Attorney General Wirt’s 1823 Opinion Does Not Support Modern Recess Appointment Practices
Mike Rappaport
One of the key issues involving the Recess Appointments Clause is the question when the vacancy has to arise: must it arise during the recess (the arise interpretation) or can it first arise at any time (the exist interpretation). To me, the language of the Recess Appointments Clause is clear on the subject: “The President […]
Greve on the Recess Appointments Decision
Mike Rappaport
Michael Greve is not enthusiastic about the D.C. Circuit's recess appointments decision. Let me just make two quick responses here. Michael says I’m not a great fan of hanging too much on definite or indefinite article (“the,” “a”), for statutory or even constitutional purposes. The court’s opinion looks a tad doctrinaire, and it upsets recess […]
The Bipartisan Character of the Original Meaning of the Recess Appointments Clause
Mike Rappaport
There will no doubt be charges that the D.C. Circuit’s Noel Canning decision holding that President Obama’s recess appointments to the NLRB is unconstitutional was a partisan decision. But the charge is baseless. It is true that the D.C. Circuit panel of judges were all appointed by Republican Presidents. And, of course, the Recess Appointments were by […]
The D.C. Circuit Recess Appointments Decision
Mike Rappaport
It was quite gratifying to see the D.C. Circuit’s Recess Appointment decision on Friday, which held President Obama’s recent recess appointments to the NLRB to be unconstitutional. Back in 2003-2004 when I first started researching the Recess Appointments Clause, I thought I would write a piece defending the interpretation of the Clause that I had […]
Does the Constitution Require Constitutional Amendments to be Presented to the President?
Mike Rappaport
Akhil Amar emails to note a pertinent discussion of the issue from his book America's Constitution: A Biography: In the 1798 case of Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378, the Court endorsed the permissibility of the practice that had already taken root, under which proposed amendments were not submitted to the president for his signature […]
Giving Up on the Constitution Part I: How to Change the Constitution
Mike Rappaport
In a New York Times Op Ed last week, Louis Michael Seidman presented an argument for not following the Constitution. Here is my summary of the major aspects of his brief: 1. Our American system of government is broken due to the archaic, idiosyncratic and downright evil provisions. 2. It is irrational to rely on the […]