The Necessary and Proper Clause, McCulloch, and Deference to Congress
Mike Rappaport
I just taught McCulloch v. Maryland to my Constitutional Law class. One of the key questions is how strict the Necessary and Proper Clause is. In McCulloch, this was discussed as to whether “necessary” meant “absolutely necessary” or merely “appropriate” or “plainly adapted to.” Chief Justice Marshall made several arguments in response. One of them […]
Impeaching Former Presidents
Mike Rappaport
Since everybody seems to be discussing it, I thought I would also chime in on the impeachment of former Presidents question. Here I assume the reader has read Mike Ramsey’s extremely helpful post. Needless to say, but sadly very needful in our age, none of this speaks to the desirability of impeaching President Trump or […]
A Judicially Manageable Nondelegation Doctrine
Mike Rappaport
After several generations in which the nondelegation doctrine has been largely ignored, the Supreme Court has given hints that it may start to enforce the doctrine once again. This change in constitutional interpretation could have enormous consequences, because a strong nondelegation doctrine poses a significant check on the excesses of the administrative state. But […]
A Two Tiered and Categorical Approach to the Nondelegation Doctrine
Mike Rappaport
I have a new essay available on the strict nondelegation doctrine. The essay offers an approach to the doctrine that avoids the criticism that no workable distinction can be drawn between statutes that permissibly and impermissibly delegate policymaking discretion. More on this in a future post. This essay was written for a book of essays […]
Is Court Packing Constitutional?
Mike Rappaport
One of the major issues in the run-up to the election was whether Democrats planned to follow-through on threats to pack the Supreme Court in response to President Trump’s appointment of three justices. As Republican control of the Senate appears more and more likely, this issue may become moot for now. But there is certainly […]
The Confirmation of Amy Coney Barrett
Mike Rappaport
There is much to say about the confirmation to the Supreme Court of Amy Coney Barrett. Here are two observations on its implications for originalism. First, Barrett was an unambiguous originalist at the time of her nomination, more so than any other justice. Gorsuch was an originalist, but he had not written so clearly in […]
More on Whether The Original Meaning Allows for Female Presidents
Mike Rappaport
During the Gorsuch confirmation hearings, the question came up whether the original meaning allowed women to become President, because the Constitution referred to the President as a "he." I wrote a post saying that Gorsuch had flubbed the question. Gorsuch could have argued quite persuasively that the original meaning permitted women to become President, but […]
There is No Independent Spending Power: A Response to Mike Ramsey
Mike Rappaport
Mike Ramsey recently criticized my view that the Constitution does not confer any independent spending power. While Mike and I have been disagreeing about this for some time, I thought I would explain my view. The Constitution provides “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the […]
John McGinnis and Mike Rappaport on Trump’s Judges Will Bring America Together
Mike Rappaport
Recently, John McGinnis and I published an op-ed piece in the Wall Street Journal entitled "Trump’s Judges Will Bring America Together." (The title was, of course, supplied by the Journal.) The piece was published after Ruth Bader Ginsburg's death, but before Amy Coney Barrett was nominated. Unfortunately, I forgot to post about it, but the […]
Balkin on Court Packing and Court Regularizing
Mike Rappaport
Jack Balkin has an interesting post advocating a change in the structure of the Supreme Court that he believes could be accomplished by statute. Under the proposal, justices serve in full capacity for 18 year terms, to be replaced every two years. After the 18 years, they serve in an extremely limited capacity. The proposal […]