Can anyone justify NOT having the Wall?

Discussion in 'West Mall' started by Horn6721, Jul 28, 2016.

  1. Mr. Deez

    Mr. Deez 10,000+ Posts

    You are correct. There is a lot of material that we often refer to as "legislative history" - committee reports, bill analyses, statements by members of Congress, debates, and a whole host of other things. There are problems with relying upon them though.

    First, they usually are not written by the members anyway. They're written by committee staff, legislative counsels, and often, lobbyists. Do most members even read them? No. When you get to debates, you'll get the actual members' words, but whose words do you rely upon? At least a quorum of each body votes on a bill, but how many publicly debate or comment on the bill? Most do not.

    Second, what if the legislative history is inconsistent? Not everybody in Congress agrees on what something means, and they definitely have different comments on it. That happens with legislative history. If a judge relies upon it, it is not hard for that judge to cherry-pick the legislative history that supports his preferred outcome or rationale and disregard the history that does not. In short, it is very easy to give an illusion of objectivity with legislative history when the judge's inquiry was actually subjective. Basically, it leads to latent judicial activism.

    Third, if courts rely on legislative history, it invites shenanigans on Capitol Hill. Specifically, it invites members to pass ambiguous but politically popular language but then dump nameless and faceless hints and clues about interpretation into the legislative record that encourage a politically unpopular result in the judiciary which doesn't account to the public.

    I used to believe this until I brought the issue up with my legislative power and procedures professor. Like you, I asked who would be a better authority on a bill than its author. He directed me to the the bicameralism and presentment concepts from Article I - not to suggest that he isn't an authority on the bill but to put that author into context of the broader legislative context and therefor, why his opinions shouldn't matter as much as one might assume.

    The House and Senate (who hold the Article I legislative power, not an individual member) only concur on the actual text of a bill - not on committee reports or even members' comments. The same is true of the President's involvement. He's signing a bill that codifies statutory language. That's it. He's not signing a committee report and has no bearing on it. Accordingly, the author's comments simply don't have much bearing on the comprehensive intent of the lawmaking body and the President who signed it into law.

    What I have to chuckle at a little is when my position is framed as the work of liberalism and judicial activism. The most famous adherent to my view of textualism and the rejection (and often with great contempt and ridicule) is Justice Scalia. In fact, it might be his most significant contribution to American jurisprudence. Justices Thomas, Alito, and Gorsuch largely concur.

    Justices who rely heavily on legislative history don't tend to be the most old school liberal justices (the Warrens, Brennans, Marshalls, etc.), because they didn't feel the need to put on a pretense that they weren't just making **** up. It's squishy guys like Breyer, Roberts, Kennedy (though he evolved quite a bit under Scalia's influence), and others. It's not the work of reliable conservative justices.
     
  2. Monahorns

    Monahorns 2,500+ Posts

    Deez,

    First, regardless of who actually writes the bill why wouldn't you pay attention to the explanations given by those who actually wrote the bill or the Congressman they work for? Sounds like you would learn a lot about the intention of the law. Can't see how that is a bad thing.

    Second, if the legislation history is inconsistent, then you go with who you thought made the best argument. That is what arguing law is all about right? That is what judges do right? They listen to arguments around a law and judge which side is right? Or you pay less attention to it and focus on the wording in the law. Still seems like the author's intended meaning should be the goal, if there is a question around the wording.

    Third, using ambiguous language is what lawyers do all day everyday anyway. They are purposefully inexact, maybe for good reason. I am an engineer, and if my profession wrote laws you wouldn't have as many problems interpreting them because we are trained to be more precise and accurate, even with our writing. Maybe that is inaccurate though, but I have heard it said.

    Yes. But people concur on text based on 2 things, there own interpretation of the words and their political ideology. A person's understanding of the actual words is shaped by the discussion of the bill before the vote. If the discussion and debate isn't being used to clarify intent and define words then it is worthless and shouldn't be done. It's a waste of time. Or they are already interpreting the words as they desire based on what they want them to mean. Which is dishonest and the same thing that activist judges do. In some ways there is no way to eliminate all political aspects to the process.
     
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  3. Mr. Deez

    Mr. Deez 10,000+ Posts

    I'm less militant about it than Scalia was. He thought legislative history was utter ********* and made fun of it and people who relied on it. He'd argue that it's irrelevant, because fundamentally, it's answering the wrong inquiry and not even doing that very well.

    The best argument of what? It's important not to confuse the different roles that lawmakers and judges play (or are supposed to play), and it's dangerous if you do. Lawmakers debate and write laws according to the merits and political considerations. Judges are supposed to apply the law based on what it says and what it means. Politics and the merits of the law aren't supposed to enter the picture. It's supposed to be a largely academic exercise.

    That's a bit like saying engineers are just dorks who walk around with pocket protectors and fidget with protractors. It's a mythical stereotype. Laws aren't ambiguous because lawyers are writing them. Lawyers can write with precision just like anybody else. When laws are ambiguous, it's usually intentional. The lawmaker (who could be a lawyer himself but could also be an engineer or an out-of-work socialist bartender) wants it so either because of political concerns, laziness, or because he actually wants the matter largely left to the courts.

    Scalia would argue that they should be generally arguing and concurring on what words to use, not what they mean. The meaning should be the ordinary and plain meaning based on dictionaries and so forth and that if they want to add nuance to a word, they should simply add a definitions section to the statute, and of course, many do. He would tell you that the debate and discussion are very important. They help shape the political process and whether members and the public think a bill should become law. His only point is that it shouldn't be part of the judicial process and that it's an abuse of power to try to make it so.

    If you're not convinced, just consider with whom you want to associate. Judges like Stephen Breyer, Sonia Sotomoyor, and Harry Blackmun considered legislative history very helpful because they could almost always cherry-pick something from it to support their preferred outcome. Like I said earlier, it provides and very convenient illusion of objectivity. Scalia thought it was garbage, and the rest of the conservative wing largely agrees even if they aren't quite as extreme as he was. There's a reason for that difference. Even if you don't want to agree with me because I'm a jackass who might be faking his legal credentials, you should want to agree with them at least in general.
     
  4. Monahorns

    Monahorns 2,500+ Posts

    Okay. I admit I don't have a lot of experience with this. I would have to see specific cases to understand that point.

    The best argument about the intent of the law, I guess. My point was just that understanding what something means can't totally be isolated from political beliefs. The exercise should be objective with as little political bias as possible, but even if someone is honestly trying to understand the best interpretation of the words of a law, and not seeking to support a preconceived outcome, political ideology will still be involved.

    My point wasn't that lawyers can't write with precision. It is that they don't, for just the reasons you mention. I don't know this first hand but it seems to me that lawyers are trained to do it. And that means that interpreting law takes more than just the words of the law.

    Should. I agree. That goes back to my comment about using precise language. Where the language is precise, then the meaning should be self-evident.

    My point is that when the law doesn't use precise language it is reasonable and I would say preferable to use the "the debate and discussion [because they are] are very important. They help shape the political process and whether members and the public think a bill should become law", which would help you understand the situation better.

    Where meanings are self-evident from the words of the law I would agree with Scalia. I think I would agree with most of the points he raises on specific cases. On the other hand, I know for a fact he used some of the legal history of gun rights in the American colonies and England to reach his decision in the Heller case. He used that history to explain what the words in the 2nd Amendment meant, which is what I am advocating.
     
  5. Mr. Deez

    Mr. Deez 10,000+ Posts

    The political ideology of the lawmakers should certainly influence what is actually written into the law. However, the job of a judge is to apply a politically motivated text in a non-political way and generally without regard to outcome. That may sound like it can't be done, but judges do it on statutes that don't involve hot button social issues everyday. It can be done. The judges who fail to do it don't lack in ability. They lack in character. For example, Justice Sotomoyor doesn't abuse the 14th Amendment because she is incapable of putting aside her politics. She does it because her political agenda is her purpose. She became a judge to push a political agenda as an advocate, not to be a protector of the integrity of the law. Being that way is a choice.

    We're actually trained to do the opposite, because when lawyers use ambiguous language in something (a law, a contract, etc.), it leads to disputes, litigation, etc., which reflects badly on the person who wrote it. When ambiguous language gets into a statute, it is usually intentional. And of course, while the legislative counsel proposes text, the lawmaker is in charge. He can use whatever text he wants in his bill.

    The lawmaker doesn't tell the legislative counsel, "throw in something ambiguous." However, the lawmaker might say, "I want you to write a bill to deal with X." The counsel might say, "I can do that. However, it'll also likely impact Y. How should we deal with that?" The lawmaker might say, "I can't build a consensus to fully deal with Y, but I don't want Y ignored either." The counsel might say, "I can include language that suggests your general preferred outcomes on Y while leaving discretion for the courts to deal with individual disputes that arise involving Y." Lawmaker says, "sounds good."

    And of course, that scenario suggests a pretty conscientious and intelligent lawmaker, and sometimes that language happens for good reason. What if you get a dumbass or a lazy lawmaker? "I don't give a **** about Y and don't want you wasting my time with Y. Just write the damn bill to fix X." If the counsel ignores Y and the bill turns to crap in court, the lawmaker will call the counsel later and say, "why the hell didn't you mention Y to me? I'm going to get your *** fired."

    And yada, yada, yada, you get ambiguous language in a statute.

    Scalia would say to look beyond the text but not beyond the law. He would obviously look first to the plain meaning of the text at issue. After that he'd view the structure of the statute or the "four corners" of the document as a whole to gain an insight into the meaning of the language. Finally, he'd look at other related provisions of enacted statutes by comparing wording and the meanings attached to those words.

    Yes, he did, and he took flack for it by critics who said he was being inconsistent. Some of that criticism was fair, but I think it was overblown. I think he would argue that he looked to prior commentary to determine the plain meaning of the Amendment in 18th century. As Garmel correctly stated, some words meant wildly different things back then. That is different from reading Ilhan Omar's staff members comments about what a word means in a law Congress passed 6 mounts ago.

    And of course the Left's view was nonsense. They spun Justice Stevens' dissent as the textualist approach because he made a big deal out of the militia reference. However, he completely ignored the fact that the text referencing the militia didn't qualify the right at all. It only stated the purpose of the right.
     
  6. Monahorns

    Monahorns 2,500+ Posts

    All I can talk about is my experience. My general impression is that lawyers right ambiguously. I can't comment on training or intention, just what I have read.

    That sounds kind of like what i had in mind. Maybe we are talking past each other a bit.

    You have to know what a militia was in the 1700s and how they were organized and run to understand what Jefferson was writing about in the 2nd ammendment. Without a historical understanding of the subject you have nothing valuable to say about it.
     
  7. Mr. Deez

    Mr. Deez 10,000+ Posts

    That's fine. My point is that when you read something a lawyer has written as part of his job, it's important to remember that everything he's writing is tailored to the needs of a client. Accordingly, if something is left ambiguous, it's for a reason, though not always a good reason.

    I don't think we are. Everything I mentioned is in the written laws passed by Congress and signed by the President. None of it is legislative history.

    I agree. I consider myself a pretty devout textualist, but I don't have a problem with what was done in DC v. Heller, because the Court was trying to stay faithful to the text by applying the plain meaning of the words used. As you can see, even Scalia was willing to do that to a point.

    Let me bring up another case that distinguishes things a bit. Two years after Heller, the Court handed down McDonald v. City of Chicago. Guns rights supporters hailed it as great, because it basically applied the principles of Heller to the states. I didn't hail it, even though it was pro-gun. The reason why is that it inferred a substantive right (the right to bear arms) from text that only protects procedural rights (the due process clause of the 14th Amendment). Heller gave effect to the written law. McDonald diminished it.
     
  8. Joe Fan

    Joe Fan 10,000+ Posts

    Is it still racist if Mexicans want a wall?

    Coronavirus: Mexicans demand crackdown on Americans crossing the border.
     
  9. Joe Fan

    Joe Fan 10,000+ Posts

  10. Mr. Deez

    Mr. Deez 10,000+ Posts

    They probably are, and I'm getting sick of media people celebrating China for supposedly reducing their cases. This is a country that lied about this disease and threw their own people in the slammer to cover it up. Furthermore, they've expelled journalists who didn't tow the government's line. Why the hell would we believe anything they say about the matter? They could have 2 million deaths from this, and they'd say the same thing. Furthermore, we'd have no idea.
     
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  11. Joe Fan

    Joe Fan 10,000+ Posts

    I get the feeling Carlos Slim must be deep in debt to the Chinese, because the NYT does not even make a feint at being objective about that country. It's embarrassing.
     
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  12. Joe Fan

    Joe Fan 10,000+ Posts

    • Agree Agree x 2
  13. Horn6721

    Horn6721 Half of seeming clever is keeping your mouth shut.

    This is interesting and shows more are understanding the cost and detriment to Americans.
    Including 75% of Hispanic Americans-
     
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  14. Joe Fan

    Joe Fan 10,000+ Posts

    Unfortunately the State Dept does not agree
     
  15. Monahorns

    Monahorns 2,500+ Posts

    Which shows Trump's weakness as an executive.
     
  16. Joe Fan

    Joe Fan 10,000+ Posts

    Just sayin

    [​IMG]
     
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  17. Horn6721

    Horn6721 Half of seeming clever is keeping your mouth shut.

    JF
    Since I know you are not linking the sanctuary cities poor performance on the Virus to the illegals
    Are you pointing out the repeated stupidity of the decisions which are harming their own people?
     
  18. Monahorns

    Monahorns 2,500+ Posts

    Maybe the link is: 1) cities and 2) amount of intra-national and inter-national travel to and from those cities.
     
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  19. Sangre Naranjada

    Sangre Naranjada Winebibber

    Population density will play a huge factor too.
     
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  20. Monahorns

    Monahorns 2,500+ Posts

    Population density a factor. I think amount of travel in and out is a bigger factor. Look at the cities are hit the hardest. They are having issues in the Colorado mountains too.
     
  21. Joe Fan

    Joe Fan 10,000+ Posts

    Hasher Jallal Taheb was arrested by FBI agents last January while trying to obtain weapons, including explosives and anti-tank devices.
    The Statue of Liberty and Washington Monument were among his targets, according to the FBI.
    He will be sentenced to 15 years in prison on 23 June, 2020.
    US man pleads guilty to White House terror plot
     
  22. Joe Fan

    Joe Fan 10,000+ Posts

    They are now eating their own
     
    • Winner Winner x 2
    • Funny Funny x 1
  23. Joe Fan

    Joe Fan 10,000+ Posts


    Quite the contrast in leadership here

     
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  24. HornHuskerDad

    HornHuskerDad 5,000+ Posts

    It's good to see Nancy get shouted down. Unfortunately, that won't affect her chances for reelection. The idoits that elected her in the first place will continue to vote for her. Our only real hope is that the GOP will take control of the House and demote her (again) to Minority Leader.
     
  25. Joe Fan

    Joe Fan 10,000+ Posts

    Dave Rubin thinks Trump will win in a landslide. If that happens, the Rs will also take back the House (which might be enough to send Nancy packing)

    Hope he is correct but right now I think its become tough to visualize just how all of the coming economic woes will unfold. I think looking ahead just one month is tough. And then how much of all of that will stick on Trump
     
  26. Austin_Bill

    Austin_Bill 1,000+ Posts

    I have a dream that the house and senate will somehow both become republican and we can finally get some real legislation passed.

    Then I realized that Republicans are just as worthless as Democrats.
     
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  27. Joe Fan

    Joe Fan 10,000+ Posts

    [​IMG]
     
    • Funny Funny x 1
  28. Joe Fan

    Joe Fan 10,000+ Posts

    Kelly Loeffler has only been there a couple of months, but she has already become a case study in this predicament
     
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  29. Joe Fan

    Joe Fan 10,000+ Posts

    Wall Contruction can be like one of FDR's make work programs to get the economy going again --

    "As the coronavirus pandemic unfolds, the U.S. Department of Homeland Security is continuing to waive environmental and Native American preservation laws in order to expedite border wall construction in Texas, according to an unpublished notice added Tuesday to the Federal Register.

    Acting DHS Secretary Chad Wolf announced Tuesday that he will again waive dozens of laws in order to expedite wall construction and address an “acute and immediate need” to block unlawful border crossings.

    Tuesday's order focuses on Starr County, Texas, communities including Salineno, Escobares and Rio Grande City. The waived laws include the National Environmental Policy Act, the Clean Air Act and the Archaeological and Historic Preservation Act.

    “In order to ensure the expeditious construction of the barriers and roads in the project areas, I have determined that it is necessary that I exercise the authority that is vested in me,” Wolf said in the notice, which is scheduled to be published on April 15.

    These waivers issued for the Rio Grande Valley sector follow several similar waivers in other geographic areas to speed construction of the barrier, going back to 2018, and as recent as March 16."...."

    DHS Continues To Waive Laws To Speed Border Wall Build - Law360
     
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    Last edited: Apr 15, 2020
  30. Monahorns

    Monahorns 2,500+ Posts

    OMG. The libs are going to howl about suspending environmental regulations.

    But on the other side what real problem does a wall cause for clean air? Maybe bad dust for a while. But that is true of any new construction.
     
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