July 25, 2006

CORRUPTION BY LEGISLATIVE HISTORY

Snookering Stevens: A justice gets duped (Ramesh Ponnuru, NRO, 7/25/06)

In deciding how to read the amendment [limiting the Court's jurisdiction over cases like Hamdan], Justice Stevens, writing for the Court, looked at senators’ statements, among other things. Here he encountered a problem: The senators disagreed. Senators Lindsey Graham and Jon Kyl, the Republican authors of the amendment, thought that it applied to pending cases. Other senators, notably Democrat Carl Levin, did not.

Stevens handles the problem in footnote 10. The statements by Kyl and Graham, he writes, “appear to have been inserted into the Congressional Record after the Senate debate. . . . All statements made during the debate itself support Senator Levin’s understanding” (emphasis in original).

But Stevens has it wrong. None of the statements he cites — on either side of the issue — was made during floor debate in the Senate. All of them were submitted for the record after the debate (but before the vote on the act).

Using the right legislative history, a judge can make a statute that says "white" mean "black."

Posted by David Cohen at July 25, 2006 5:16 PM
Comments

The use of "legislative history" by certain SC judges to bend laws to their liking is one reason why GWB has been writing so many signing statements lately: to rebut Stevens and other judges who abuse LH. Scalia is particularly opposed to the practice.

Posted by: Gideon at July 25, 2006 7:09 PM

Note that it isn't hard to determine the legislative purpose.

Posted by: oj at July 25, 2006 7:25 PM

Yeah, you just gotta look at the law.

Posted by: Pepys at July 25, 2006 7:36 PM

Gideon: The President can make those statements if he wants, but he can't force the Supreme Court to pay any attention.

Posted by: David Cohen at July 25, 2006 7:49 PM

but David Cohen:

He can just ignore the Court like Andrew Jackson did. They have no way to enforce a decision that he believes is detrimental to the country's security.

Posted by: obc at July 25, 2006 8:39 PM

He can just ignore the Court like Andrew Jackson did

Not yet. But when we get hit in the summer of '009, President Keating-McCain will be able to do anything he wants, and all the so-called and self-styled "civil libertarians" won't be able to say a thing about it because they will have already been blamed for letting it happen by a the combination of an inability to "connect the dots", for "coddling terrorists", and for 8 years of "crying wolf". The general feeling will be, "we tried it your way, and tens of thousands died, so now shut the [expletive] up."

Posted by: Raoul Ortega at July 25, 2006 10:49 PM

Fascinating (for this Canadian layman, at least). So ... according to the Left, signing statements are bad for determining the intent of a law, but legislative history is good.

And they differ ... how?

Posted by: ras at July 26, 2006 7:14 PM

Laws are just means.

Posted by: oj at July 27, 2006 12:24 AM

This situation since both sides did it cries out for a change in how the Congressional Record in published. It is common practice for Senators to insert remarks not spoken on the floor, however, maybe it is time to change the publication of the Record so that everyone who reads it knows what was said on the floor and what was not. All statements inserted are an important part of legislative history, but if we knew which were said on the floor and which were not bt simply looking at the Record then we would know exactly which statements to give the most weight.

The action was not corrupt, but does scream out for reforms in the structure and publication of the Congressional Record.

Posted by: Judy at July 27, 2006 7:40 AM
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