Archives for June 2014

June 30, 2014|Recess Appointments Clause

The Recess Appointments Decision Part I: Nonoriginalism and Originalism

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The Supreme Court’s recess appointments decision in Noel Canning was largely a disappointment from the perspective of originalism and the original meaning of the Recess Appointments Clause.

There were three issues involved in the case: (1) the type of recess issue (whether a recess appointment could be made only during an intersession recess or also during an intrasession recess); (2) the happen issue (whether a recess appointment could be made only to a vacancy that happened during the recess, or also to a vacancy that initially arose during the session); and (3) the pro forma issue (whether 1 minute sessions attended by 2 Senators count as real sessions).

A majority decision by Justice Breyer is almost always a bad thing for originalism. And that was true in Noel Canning. The majority got the type of recess issue wrong (saying that a recess appointment could be made during not only an intersession recess but also an intrasession recess). And it got the happen issue wrong (saying that a vacancy could be filled with a recess appointment not only if it happened during the recess, but also if it initially happened during the session).

June 30, 2014|Constitution, living constitution, Originalism

The Ascent of Originalism: A Conversation with Michael Rappaport

by Mike Rappaport|1 Comment

The many schools of originalism all face the same questions: does it merely perpetuate the dead hand of the past? What about the exclusion of women and blacks at the Founding? What does one do with the mountains of non-originalist precedent? This next podcast with our own Mike Rappaport, prompted by his new book that he co-authored with co-blogger John McGinnis entitled Originalism and the Good Constitution, focuses on the rise of originalism as an intrepretative methodology for Constitutional Law and attempts to answer these and other questions with a new framework called original methods originalism. Our discussion thus focuses on…

June 30, 2014|Administrative State, Congress, Separation of Powers

Bodychecking the Administrative State

by Joseph Postell|1 Comment

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It’s been great fun blogging at LibertyLaw this month, and I thank Richard Reinsch for the opportunity to opine. As I conclude my tenure as guest blogger, I want to respond to some of Greg Weiner’s very interesting and provocative suggestions about Congress and the administrative state. He is right to focus on Congress as the centerpiece of any successful reform movement, but I have a few tentative hesitations about his suggestions.

June 30, 2014|Earmarks, Senator Cochran, Tragedy of the Commons

Cochran’s Victory and the Tragedy of the Budget Commons

by John O. McGinnis|3 Comments

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The recent Republican Senate primary in Mississippi no doubt turned on many factors such as the character of the candidates. But the victory by Thad Cochran, the establishment Republican Senator, also underscores an unfortunate consequence of our system of government. The Constitution itself creates a structure that favors senators who promise to direct federal dollars to the state rather than to limit government spending. This structure facilitated the central premise of Senator Cochran’s campaign: with his seniority he could bring home the bacon.

The Constitution requires that Senators be elected from each state and thus Senators are more responsive to state rather than national constituencies. As a result, each Senator (and member of the House of Representatives for that matter) has an incentive to secure pork barrel legislation for his state despite any economic losses to the nation. And his constituents will generally not object, because almost all of the money to pay for in-state benefits comes from other states.

In short, the Framers’ decision to make representation wholly local rather than to have legislators elected from a national list, as is the case in some other democracies, creates a tragedy of the commons. Each representative will overgraze the federal budget at the expense of the nation’s prosperity.

June 30, 2014|Republican Party, Ruling Class, Thad Cochran

The Ruling Class Went Down to Mississippi

by Angelo M. Codevilla|16 Comments

The Republican establishment, as it works with Democrats to overcome challenges from GOP and independent voters dissatisfied with the course of events in America, confirms that it is part of the ruling class responsible for those events, and that it intends to push America further along that course. By its campaign for Senator Thad Cochran in Mississippi’s senatorial primary, the GOP establishment removed all doubt about this.

June 28, 2014|Technological Change

Bloggers and Old Man’s War

by Mike Rappaport|Leave a Comment

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I just finished a science fiction book, Ghost Brigades, which is the second book in the Old Man’s War series. I strongly recommend it as well as the first book, Old Man’s War. I wouldn’t normally mention this, except something in the acknowledgements at the end of the book struck me. The author, John Scalzi, wrote: One of the reasons that the Ghost Brigades exists is that the first book in the series, Old Man’s War, was fortunate enough to have been praised online by folks whose taste in books is trusted by their readers. I thank all of them and add…

June 27, 2014|Coase Theorem, Noel Canning, Separation of Powers

Noel Canning, Liberty, and the Coase Theorem

by John O. McGinnis|2 Comments

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Conservatives have been celebrating Noel Canning, the recent Supreme Court decision on recess appointments, because President Obama lost 9-0. But in reality the case was a loss both for liberty and the rule of law. While the result was unanimous, the reasoning in Justice Stephen Breyer’s five-person majority dramatically diverged from Justice Antonin Scalia’s four-person concurrence. And it is the reasoning, not the result, that may shape our constitutional future. Justice Breyer’s majority opinion elevates practices of the President and Congress over the original meaning of the Constitution. Adoption of Breyer’s principle of constitutional interpretation threatens our liberty.

The Recess Appointment Clause provides: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Breyer’s majority opinion permitted the President to make recess appointments during intrasession recesses, not only at the end of the congressional session, and to fill vacancies that happen at any time, not only vacancies that happen during recesses. Those holdings provide the President with potentially substantial recess appointments power, assuming that the Senate in fact takes intrasession recesses.

June 27, 2014|John Boehner, Nondelegation doctrine, Schechter Poultry, Separation of Powers

Will Congress Get Its Groove Back?

by Greg Weiner|9 Comments

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This week witnessed discordant events that may signal a renewal of congressional government while illustrating the peril of relying on another branch of government—the judiciary—to revive it.

In the first, the Supreme Court on Monday granted certiorari in a case, U.S. Department of Transportation v. Association of American Railroads, that could mark the first time since pre-New Deal jurisprudence that it invalidates a law on grounds of nondelegation, the principle that Congress cannot transfer its legislative authority to another branch of government. Then, on Wednesday, Speaker John Boehner announced plans for the House to sue President Obama over non-enforcement of laws.

June 26, 2014|Gun Rights, Second Amendment

Undermining Our Conversation About the Right to Arms

by Nicholas J. Johnson|19 Comments

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We are in the middle of another round in the effort to scuttle the right to keep and bear arms. Justice John Paul Stevens, while on the Supreme Court and since retirement, has urged interpreting the Second Amendment as an individual right to keep and bear arms “while in the militia” or some such. This renders the right empty and ultimately incoherent. (Try to imagine the right Stevens proposes and you get zero. As the majority in D.C. v. Heller stated bluntly in 2008, it is nonsense to talk about a right to keep and bear arms within an organization from which Congress has plenary authority to exclude you.)

Also jumping into the fray is Michael Waldman, whose “biography” of the Second Amendment uses the militia conversations during the ratification debates of the late 1780s to accuse the 20th century National Rifle Association of inventing the individual right to arms.

There is so much wrong here that it may take several posts to unwind. This post will focus on the basic mischaracterization of our constitutional scheme of rights and powers and how unbridled federal power perverts our conception of rights.

June 26, 2014|Executive Power, Franklin Roosevelt, Progressivism, Separation of Powers, Theodore Roosevelt, Woodrow Wilson

The Imperial Mount Rushmore

by Joseph Postell|4 Comments

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Though it’s been a few weeks since it appeared, I would be remiss if I didn’t mention Stephen Knott’s excellent piece on whether Woodrow Wilson destroyed the office of the presidency. The clamor about the imperial presidency is on the rise with many commentators (such as George Will) and Knott’s article gives us a better understanding of its rise, as well as its implications. Knott describes the “expectations gap” that has arisen due to modern conceptions of the presidency, where we expect the president to heal the planet, rather than work to enact reforms within the institutions of constitutional government.

In response to Professor Knott I would only mention that I think Woodrow Wilson may not even deserve top billing in terms of producing the rise of presidential power.