Patterico's Pontifications

5/5/2010

Why Legislative Interpretation Must Begin And End With the Text — When the Text Is Clear

Filed under: General — Patterico @ 11:52 pm

One problem for those who believe legislative intent is paramount when interpreting the text of a law: how do you go about ascertaining intent?

Pretend that 219 people voted in favor of a law. The law is a comprehensive health bill that runs hundreds of pages in length. One provision among those hundreds of pages says: “Nothing in this law requires insurance companies to provide coverage to children with pre-existing conditions.”

Now assume that we obtain mind-reading devices, which allow us to ascertain with absolute certainty the intent of the people who passed the law regarding this provision — and it breaks down this way:

  • 22 people voting for the law thought they were requiring companies to provide coverage to children with pre-existing conditions — the exact opposite of what the text appears to say, when read by most reasonable people.
  • 21 people voting for the law said that the only reason they voted for the law was because they managed to secure this provision, which they understood as allowing insurance companies to deny coverage to children with pre-existing conditions. Most reasonable people would read the text the same way as these 21 people.
  • 176 people voting for the law didn’t read it. If you ask them after the fact what they would have thought the law meant if they read it, 56 would have said it requires insurance companies to provide coverage to children with pre-existing conditions, 57 would have said it doesn’t, and 63 would have had no opinion. But all 176 lacked an opinion on the issue at the moment they voted, because they had no idea the issue existed.

So: what should a judge find to be the legislative intent?

Do we go with what a majority of people voting for the law thought it meant? We can’t even get a majority of lawmakers who even read it.

Do we look at only the group that actually read the provision? There are 43 of those, and a bare majority of those intended the law to do precisely what the text (as interpreted by a reasonable reader) says the law doesn’t do. Do we go with that majority?

What about the 21 people who thought they had negotiated a provision that allows insurance companies to deny coverage to children with pre-existing conditions? Does their intent matter? Does the change they negotiated in the text matter?

What if, without the support of those 21 people, the law wouldn’t have passed? Do we get to look at their intent and count their “yes” vote for the law as a “no” vote?

You can quickly see how, even in a theoretical world where we know every lawmaker’s intent with certainty, the task of defining a single “intent” for this provision is unworkable.

And we don’t live in that theoretical world. In this world, lawmakers toss expressions of intent into the Congressional Record and into committee reports and the like, to load the dice as to later interpretations of the law — even when they know their expressions of intent are not necessarily reflective of the body as a whole.

When the text is clear, a judge ought not to have to weigh those expressions of intent and try to determine whether they are genuine.

When the text is clear, a judge ought to be able to say: the text of the law is clear. It says what it says. Trying to discern an unexpressed intent of the legislature is a fool’s errand.

In other words, a judge ought to be able to treat the text as the final word on intent, if the text is clear — even if the text may not really be the final word on intent.

Because legislation is all about compromise — and compromise takes place through alterations of the text, not by horse-trading in the currency of unexpressed intent. When you’re dealing with a body of people, and trying to interpret their finished product, the only legitimate basis for evaluating what they agreed to is the text.

Any other solution, in my view, is not workable.

P.S. As with any post about intentionalism, I’m going to apply my strict no-personal-attacks rule in this thread. Comments must be strictly about ideas, with absolutely no personal comments whatsoever. Comments that do not follow this rule will be summarily deleted. Comments that blatantly violate the rule may earn the offending commenter a time-out or a ban.

Given my restrictive rules, I will accept comments from banned commenters, as long as they follow the rules I have set forth. No personal digs are allowed, no matter how small — but any articulation that hews strictly to the expression of ideas will be allowed.

I will not respond to any argument — whether made here or at any other site — that misstates my argument, or belittles it, or attempts to turn this into a discussion of personalities rather than ideas.

Crime Suspects Taunt Police Via MySpace

Filed under: Crime — DRJ @ 11:04 pm

[Guest post by DRJ]

Suspects wanted in Texas Panhandle home invasions, robberies and burglaries are taunting police at a MySpace account:

“Daniel Reyna is apparently taunting police that there are four more storage sheds – possibly filled with guns and stolen property – that they haven’t yet found.

Reyna, believed responsible for a string of home invasions, appears to be using his online MySpace account to take jabs at the Lubbock Police Department.”
***
The Special Duty Squad was using the MySpace account that is purported to be Reyna’s in attempts to track him, but the account is being updated via cell phone or mobile device, [Police Capt. Greg] Stevens said.”

Some examples:

“The online account had several posts on Wednesday following the Tuesday seizure [of recovered stolen property], referencing the incident and saying he knew police were looking at his MySpace page.

Here’s one post: “LOOK LPD YALL R GOOD LOL GOOD JOB AND U MIGHT GET MORE STORAGES IF U DO UR JOB RIGHT SO YALL GOT 2 SO U STILL NEED 4 MORE…”

[Suspect Sergio] Gonzalez also made some references in late April on his MySpace page. There were posts saying “we still on top” and “yall can’t find us keep on looking.”

Police have already recovered substantial stolen property at two warehouses, including several weapons.

– DRJ

Texas Teen Dies in Mexico

Filed under: Crime,Immigration — DRJ @ 11:00 pm

[Guest post by DRJ]

The BP oil spill has been supplanted in the Houston headlines by the death of Elizabeth Mandala, a Sugar Land senior who rode horses and friends say dreamed of being a prom queen. Mandala disappeared last week and was found dead in a wrecked pickup in Mexico. Subsequently, Mexican authorities announced Mandala and 2 Mexican men had been beaten to death and left in a staged accident, with a rock on the truck’s accelerator.

As sad as that is, the rest of the story is unbelievable:

“The Sugar Land high school senior found beaten to death in Mexico last weekend wanted to be a coyote who smuggled illegal immigrants across the border and also worked as a stripper, according to her mother’s statement to police, a Houston Police Department missing persons report reveals.

Elisabeth Mandala, 18, who attended Kempner High School in the Fort Bend Independent School District, was found dead Saturday along with the bodies of two men on the highway to Monclova, just west of Mina, a town of 6,000 near Monterrey.

The pickup had been staged to look as if it had been involved in an accident, but investigators found evidence the truck’s accelerator may have been jammed with a rock, according to the Monterrey newspapers, Milenio and El Norte

“It’s pretty apparent she was doing stuff down there she shouldn’t have been,” said a law enforcement source close to the investigation who asked not to be identified by name.”

We have more problems than immigration if a teenager can go to school and dream of being a prom queen during the week, while spending the weekend starting her career as a human smuggler.

– DRJ

What Motivated Shahzad?

Filed under: Obama,Terrorism — DRJ @ 9:08 pm

[Guest post by DRJ]

CNN reports on what motivated Faisal Shahzad:

“Efforts also continued Wednesday to determine what may have motivated Shahzad. An official familiar with the investigation said Wednesday that Shahzad felt Islam was under attack.

Any grudge Shahzad may have held against the United States appears to have developed recently, according to a senior U.S. official who is familiar with the investigation but not authorized to speak publicly.

The investigation has found nothing to indicate that Shahzad had any long-standing grudge or anger toward the United States, the official said.

“What we know is, the dynamic appeared to have changed in the last year,” the official said.”

President Obama ordered increased predator drone attacks on Pakistani terrorists and militants during the past year. The New York Post reports Shahzad told authorities his car bomb was revenge for the deaths caused by those attacks.

I hope Obama will continue the fight the Taliban and al Qaeda in countries like Pakistan and Afghanistan. I also hope liberals will finally realize America’s enemies don’t care who America’s President is.

– DRJ

NY Car Bomber May Be Taliban Trained

Filed under: Air Security,International,Terrorism — DRJ @ 9:07 pm

[Guest post by DRJ]

Allahpundit at Hot Air discusses a Wall Street Journal report that Faisal Shahzad, the Times Square car bomber, may well have been trained by the Taliban in Pakistan. From the Wall Street Journal:

” U.S. and Pakistani investigators are giving increased credence to links between Times Square bombing suspect Faisal Shahzad and the Pakistan Taliban, with one senior Pakistani official saying Mr. Shahzad received instruction from the Islamist group’s suicide-bomb trainer…

Mr. Shahzad received training in explosives in a camp run by Qari Hussain, the official said. Mr. Hussain is a senior commander with Tehrik-e-Taliban Pakistan, the Pakistan Taliban’s formal name, and trains suicide bombers, the official said. Mr. Hussain is also a cousin of Hakimullah Mehsud, the Pakistan Taliban’s chief. The 30-year-old Mr. Shahzad has admitted to investigators that he received training from militants in Waziristan, U.S. officials said…

One thing that puzzles U.S. terrorism experts: the lack of sophistication in the planned attack, considering Mr. Hussain’s reputed expertise and emphasis on suicide bombs. One theory is that Mr. Shahzad may not have been fully embraced or fully trained by the Pakistan Taliban, who may have been suspicious of a U.S. citizen seeking training.

“They may not have shown him all their tricks, but just set him loose. If he pulls off an attack, great, they got a ‘freebie,’ and if not, no harm done,” said Brian Fishman, a terrorism analyst at the New America Foundation in Washington, a think tank that focuses on security issues.”

That makes sense but there is another possibility. Maybe Shahzad was motivated but nervous or inept:

“On Saturday night, with his recently acquired Nissan Pathfinder loaded with his makeshift explosives, Shahzad drove southbound along Manhattan’s East River on FDR Drive to the 49th Street exit, the source said.

Shahzad then pulled over and reached into the Pathfinder’s rear compartment where he attempted to set into motion the process needed to set off the homemade bomb, the source said.

The source, who did not explain how Shahzad had attempted to set off the bomb, said he then took a number of turns and wound up entering Times Square by driving south down Seventh Avenue. The source said Shahzad told investigators he turned right onto 45th Street toward Eighth Avenue because he saw a place to pull over.

It’s unclear why Shahzad left the Pathfinder’s engine running and hazard lights blinking.

But because of an incredible goof, Shahzad couldn’t use his escape car. He had accidentally left the keys to that vehicle in the Pathfinder that he thought was about to blow up, the source said.”

In addition, even though he earned a BA in computer applications, an MBA and had been granted an H1B skilled worker visa, Shahzad reportedly spoke limited English and was unremarkable. His job history consisted of an “entry-level job as a budget analyst at a marketing firm,” a position that presumably would not require engineering or high-tech skills. Thus, even with training, it might have been hard for someone with Shahzad’s skills to carry this out.

MORE: CBS reports Shahzad has been on a watchlist since 1999 because of his foreign travel and for bring a large sum of money into the U.S.:

“Sources tell CBS News that would-be Times Square bomber Faisal Shahzad appeared on a Department of Homeland Security travel lookout list – Traveler Enforcement Compliance System (TECS) – between 1999 and 2008 because he brought approximately $80,000 cash or cash instruments into the United States.

TECS is a major law enforcement computer system that allows its approximately 120,000 users from 20 federal agencies to share information. The database is designed to identify individuals suspected of or involved in violation of federal law.”

So it appears he was already on a watch list even before Monday’s update because of the car bomb. Sheesh. How many people like him are there? And maybe the Obama Administration should reinstate its profiling program for travelers from nations like Pakistan — the air security program it dropped in early April 2010.

– DRJ

Election in Britain

Filed under: Immigration — DRJ @ 7:37 pm

[Guest post by DRJ]

Michael Barone is in Britain covering the British election and he notes the polls show the Conservatives, led by David Cameron, are favored to win:

“The latest British poll results suggest, on http://www.electoralcalculus.co.uk/index.html a uniform-swingometer, that Conservatives will win 293 seats, Labour 238 and Liberal Democrats 87, with 326 needed for a majority. That leaves Conservatives 36 seats short of the 326-seat majority in the House of Commons, but it also leaves Labour and Lib Dems, combined, short by exactly 1 seat, of having a majority by themselves—a critical number, as I have argued. And, as others who reject the uniform-swing model have argued persuasively, the poll results actually project more Conservative (and perhaps Liberal Democrat) seats and fewer Labour seats than uniform-swing models suggest.”

Conservative candidate Joanne Cash is one of the reasons the uniform models may not be accurate:

“She has become involved not with “the Muslim community,” but with Morrocans, South Asians and others individually; “they have different cultures, and people realize you’re respecting them.” She has worked to get people in these communities in direct touch with the police, to get rid of prostitution and drug dealing in the more deprived communities—even as people in St. Johns Woods and Maida Vale hire their own neighborhood private police guards. She argues that under the Labour government the gap between the rich and poor in the district—as in much of Manhattan and Mexico City—has grown wider, and has supported charities like Boxing Gym and Butterfly Literacy in the state schools. She has tried to put flesh on Conservative leader David Cameron’s “Big Society” policies by supporting such endeavors.”

Ms. Cash’s policies, not to mention the Tories’, are probably Too-Big-Government compared to what I favor, but it still seems like a positive turn. The UK Times says this could be the biggest swing to the Tories since 1945. We shall see tomorrow.

– DRJ

Separate and Unequal in Ann Arbor

Filed under: Education,Obama — DRJ @ 2:01 pm

[Guest post by DRJ]

The Instapundit links The Blog Prof on an Ann Arbor elementary school that banned white students from a field trip to hear an African American rocket scientist. The principal defended the exclusion because the speaker is a special inspiration for young black students.

I’m curious what President Obama would think given his recent decision to provide increased and targeted funding to Historically Black Colleges and Universities … just because they are black. There may be a legal basis for his decision but, in theory, what’s the difference between granting black students special access and granting black colleges special funding?

– DRJ

San Antonio Refinery Explosion

Filed under: General — DRJ @ 1:21 pm

[Guest post by DRJ]

A tanker truck refilling at a San Antonio refinery has exploded:

“Cindy Campbell, the controller at AGE Refining Inc., said a truck fire erupted while it was parked at a fuel loading dock at the plant near Southeast Military Drive and South Presa Street. Fire officials said two tanker trucks were at the dock at the time, and one remained ablaze hours later.

The company, which serves the U.S. Air Force, handles jet fuel and diesel, Campbell said. The facility — the city’s only refinery — was fined in 2007 for 13 “serious violations” by the Occupational Safety and Health Administration. The violations remain current, according to OSHA.”

One person was critically injured and transported to Brooke Army Medical, presumably with burns. A driver is unaccounted for.

Accidents happen in oil-related industries, as with any combustible product. This is a tragic event for the people involved and the OSHA issues raise red flags. However, the fact the refinery serves a military facility also makes it suspicious.

– DRJ

Obama’s Donors

Filed under: Obama,Politics — DRJ @ 12:11 pm

[Guest post by DRJ]

First Goldman Sachs. Now BP:

“While the BP oil geyser pumps millions of gallons of petroleum into the Gulf of Mexico, President Barack Obama and members of Congress may have to answer for the millions in campaign contributions they’ve taken from the oil and gas giant over the years.

BP and its employees have given more than $3.5 million to federal candidates over the past 20 years, with the largest chunk of their money going to Obama, according to the Center for Responsive Politics. Donations come from a mix of employees and the company’s political action committees — $2.89 million flowed to campaigns from BP-related PACs and about $638,000 came from individuals.”

I don’t think this will hurt the Obama Administration now but it doesn’t bode well for Obama’s 2012 re-election fundraising.

– DRJ

Los Politicos

Filed under: Sports — DRJ @ 12:07 pm

[Guest post by DRJ]

Management and players of the Phoenix Suns NBA basketball team are pumped about politicizing sports. The team decided the players will wear “Los Suns” jerseys to oppose Arizona’s new immigration law:

“The team will be wearing its “Los Suns” jerseys for Wednesday night’s Game 2 against the San Antonio Spurs “to honor [the] Latino community and the diversity of our league, the state of Arizona, and our nation.” Awesome.

The decision to wear the jerseys came from way up the corporate ladder, as team owner Robert Sarver suggested the team wear their Noche Latina alternates.

Sarver, who was born and raised in Tucson, said frustration with the federal government’s failure to deal with the illegal immigration issue led to the passage of what he called “a flawed state law.”
***
The Suns voted on the jerseys and unanimously decided to wear them for Cinco De Mayo. As if he weren’t likeable enough, Phoenix guard Steve Nash(notes) succinctly summed up the Suns’ feelings on the issue.

“I think it’s fantastic,” Nash said after Tuesday’s practice. “I think the law is very misguided. I think it’s, unfortunately, to the detriment of our society and our civil liberties. I think it’s very important for us to stand up for things we believe in. As a team and as an organization, we have a lot of love and support for all of our fans. The league is very multicultural. We have players from all over the world, and our Latino community here is very strong and important to us.”

This will probably be popular in San Antonio, if for no other reason than the Spurs already have “Los Spurs” jerseys as a nod to their Hispanic fans. However, the Arizona law is popular at home and this Politico article reports it’s popular elsewhere, too. Will they wear these jerseys in Phoenix? [EDIT: Yes they can. In the comments, steve sturm notes the game is in Phoenix. My thanks to steve for the correction.]

– DRJ

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