Author Archive for lori-ringhand
Breakfast Reading
posted by Lori Ringhand
Michael Rappaport (University of San Diego) has posted The Unconstitutionality of ‘Signing and Not-Enforcing’ on SSRN:
ABSTRACT:
This short essay for a symposium addresses the presidential practice of signing a bill into law while stating that one will not enforce certain provisions in it that the President considers unconstitutional. This essay argues that the practice is always unconstitutional, irrespective of whether one believes that the President possesses the power to not-enforce. If one believes that the President lacks the power to not-enforce provisions that he believes are unconstitutional, then, of course, the President cannot “sign and not-enforce.” But even if one believes that the President has this power to not-enforce, the President still cannot sign and not-enforce. If the President concludes that the Constitution forbids him from enforcing part of a bill, then he must also conclude that it forbids him from signing that bill. A decision to sign a bill and not-enforce part of it impermissibly treats the Constitution as a matter of presidential discretion rather than as supreme law that always binds the President.
In making this argument, I generally employ an originalist-formalist conception of law, which I believe provides the proper approach to the Constitution. The essay, however, does briefly examine signing and not-enforcing under a nonoriginalist-functionalist approach, concluding that there is a strong case for reading the Constitution as largely, and perhaps categorically, prohibiting signing and not-enforcing.
March 7, 2008 at 7:06 am
Posted in: Constitutional Law
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Waldron and Rights
posted by Lori Ringhand
Jeremy Waldron, public law scholar extraordinaire, gave the John A. Sibley Lecture at the University of Georgia yesterday. Waldron is perhaps best known for his writing on rights and judicial review. Once core concepts of equality and participation are secured, Waldron says, debates over rights necessarily become debates over essentially contested value choices. As such, he argues they should be defined primarily through legislative, not judicial, methods. He thus is critical of U.S. style judicial review, preferring the legislative supremacy model traditionally favored by Great Britain and his native New Zealand.
I am increasingly skeptical of part of Waldron’s premise – that the Supreme Court is in fact the final definer of rights the U.S. system – but his work nonetheless raises an interesting and troubling point about how we talk about rights. We often use the word “right” in an absolutist way. But of course none of the rights protected by the Constitution are absolute; rather, they are protected only to the extent that they are not trumped by the needs of society or others.
March 6, 2008 at 7:02 am
Posted in: Constitutional Law
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Houses and Homes
posted by Lori Ringhand
There is nothing like being both a buyer and a seller in the current housing market to focus one’s attention on the avalanche of housing news available these days (current status: national market down; local market down; my micro market stable). Within this informational bounty, however, I have found few news articles as thought provoking as this NY Times piece.
The article explores how the new no-money down, interest only, adjustable rate loans encouraged a subtle but distinct change in how we think about the homes we live in; a shift from buying homes as homes to buying houses as investments.
For decades, Americans bought homes. Doing so signaled the buyer’s middle class status and commitment to his or her community. The housing market was relatively stable, so most long-term owners would eventually see a tidy profit on their purchases. But their homes were first and foremost places to live. In the midst of the recent housing bubble, that changed. We still, of course, lived in our houses, but rapidly escalating prices and the lack of other savings encouraged owners to start viewing their houses first and foremost as investment vehicles.
This shift is obvious to anyone who, like me, is an HGTV addict. Rarely do you see an HGTV host praise a homeowner’s decision to paint her house purple because it is her daughter’s favorite color. On a recent episode, one woman tried to explain to the host that while she and her husband had probably “overinvested” in their beautiful backyard, they valued outdoor living and thought the decision was worth it – even if they did not recoup the money on the resale. The host looked at her as if she were speaking Klingon.
March 3, 2008 at 4:09 pm
Posted in: Culture
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