Garrett West: Congressional Power over Office Creation
Michael Ramsey
Apologies for missing this one earlier, but it's suddenly very timely. E. Garrett West (Independent; Yale Law School J.D. '18) has posted Congressional Power over Office Creation (128 Yale Law Journal 166 (2018)) on SSRN. Here is the abstract: The Constitution leaves the creation of the institutions of government to ordinary political processes. While intricate constitutionalized […]
Is the Federal Vacancies Reform Act Constitutional? (With Comments by Michael Ramsey)
Andrew Hyman
Following up on Mike Ramsey’s informative blog post questioning the constitutionality of the Attorney General, I’ll comment a little bit. The ostensible power to enact the FVRA is supported not just by the powers of Congress but also by the rulemaking power of the Senate. The Senate is effectively telling POTUS: “We’re really busy right […]
Is the Attorney General Unconstitutional?
Michael Ramsey
In the New York Times, Neal Katyal and George Conway argue that the President's appointment of Matthew Whitaker as Acting Attorney General is unconstitutional: the problem, they say, is that Whitaker, who was Attorney General Sessions' chief of staff, was never confirmed by the Senate; thus he's not eligible to fill a position that requires […]
Textualism Wins…
Michael Ramsey
…in the first Supreme Court opinion in an argued case this term. In Mount Lemmon Fire District v. Guido, the Court held (unanimously, per Justice Ginsburg) that the Age Discrimination in Employment Act (ADEA), U.S.C. § 630(b), means what it obviously says about the definition of "employer." The relevant language is: The term ‘employer’ means a person engaged […]
Heather Elliott: Justice Gorsuch’s Would-Be War on Chevron
Michael Ramsey
Heather Elliott (University of Alabama – School of Law) has posted Justice Gorsuch's Would-Be War on Chevron (21 Green Bag 2d 315 (2018)) on SSRN. Here is the abstract: Supreme Court decisions such as Chevron v. Natural Resources Defense Council require varying levels of deference to legal interpretations provided by administrative agencies – deference that recently […]
Want to Get Cited by Supreme Court Justices? Try Originalism
Michael Ramsey
SCOTUSblog's "Empirical SCOTUS" feature has this post: With a little help from academic scholarship. Among many interesting findings, author Adam Feldman's analysis suggests that originalist scholarship is a good way to get cited by Supreme Court Justices (though not so much in majority opinions). He finds: Justices Clarence Thomas and Neil Gorsuch were much more likely […]
Tenth Annual Originalism Works-in-Progress Conference in San Diego
Michael Ramsey
The Center for the Study of Constitutional Originalism is pleased to announce the papers and commentators for the Tenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference at the University of San Diego, February 22-23, 2019: Josh Blackman (South Texas) & James Phillips (Stanford), Corpus Linguistics and the Second Amendment. Commentator: Nelson Lund (George […]
Complete Gienapp Symposium at Balkinization
Michael Ramsey
Thanks to Jack Balkin, here is a complete set of links to the Balkinization symposium on Jonathan Gienapp's new book The Second Creation: Fixing the American Constitution in the Founding Era (Belknap Press 2018): Jack Balkin, Introduction to Symposium on Jonathan Gienapp, The Second Creation Jack Balkin, The Second Creation and Orignalist Theory Gerard Magliocca, Fixation and Legitimacy […]
Ernest Young: Dying Constitutionalism and the Fourteenth Amendment
Michael Ramsey
Ernest A. Young (Duke University School of Law) has posted Dying Constitutionalism and the Fourteenth Amendment (Marquette Law Review, forthcoming) on SSRN. Here is the abstract: The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But […]
Steven Calabresi & Lena Barsky: An Originalist Defense of Plyler v. Doe
Michael Ramsey
In the BYU Law Review, Steven G. Calabresi & Lena M. Barsky: An Originalist Defense of Plyler v. Doe (2017 BYU L. Rev. 225 (2017)). Here is the abstract: This Article offers a defense of the Supreme Court’s opinion in Plyler v. Doe based on the original public meaning of the Fourteenth Amendment when it was enacted in […]