Patterico's Pontifications

8/25/2010

Another Reminder of Why “Intentionalism” Cannot Govern Statutory Interpretation

Filed under: General — Patterico @ 12:54 pm



Because the lawmakers don’t read their own bills:

Judy Matott asked Baucus if he would work to improve Libby’s image, and then asked him and Sebelius, “if either of you read the health care bill before it was passed and if not, that is the most despicable, irresponsible thing.”

Baucus replied that if Libby residents assembled an economic development plan, he would do what he could to help, and he took credit for “essentially” writing the health care bill that passed the Senate.

“I don’t think you want me to waste my time to read every page of the health care bill. You know why? It’s statutory language,” Baucus said. “We hire experts.”

Incredible.

Explain to me again why this guy’s subjective intent should count for anything in interpreting this bill?

46 Responses to “Another Reminder of Why “Intentionalism” Cannot Govern Statutory Interpretation”

  1. Dude, come on, linky love here! http://allergic2bull.blogspot.com/2010/08/sen-max-baucus-i-wrote-health-care-law.html

    Well, to be fair, other people linked it first. But i find it even more astonishing that he assert authorship, but admits he didn’t read all of it.

    As for the intentionality issue, i think we should percisely honor their intent. Their intent was not to do their jobs, so we should treat the law like it doesn’t exist. deal?

    /sarcasm

    Aaron Worthing (e7d72e)

  2. Ok, +10 points for effort, there Max, and that gives you a grade of 10/100. Which means you fail like a North Korean Soccer team.

    MunDane68 (54a83b)

  3. Their intent was not to do their jobs, so we should treat the law like it doesn’t exist. deal?

    Why the sarcasm? I think if a bill wasn’t read before being passed, it shouldn’t be enforced. That leads to impossible outcomes right now, so we’d need some kind of mechanism for demonstrating whether or not a bill was read by the voting members.

    I suggest a sworn affidavit accompany any vote on legislation. The member can note they did or did not personally read the entire bill. If most voters didn’t read the bill, it isn’t considered passed. You could easily make that more basic and just require a sworn affidavit saying the lawmaker personally read a bill before voting in favor of it (you can’t require this for votes against, because that would lead to tricks, IMO).

    Seems like this would slow down the pace of legislation and creeping intrusion. It’s an easy reform that should be popular.

    Dustin (b54cdc)

  4. When I write about the dangers of bureaucratic control, this is exactly what I am writing about.

    The modern legislature relies on “experts” to do everything today and term limits would only make it worse.

    Christian (2852e9)

  5. Christian, term limits would make it worse than this?

    I guess that’s possible, but I think the opposite. Some of the new members, if term limits were in place, would want to go against the entrenched staffers.

    It doesn’t hurt my case that the problem you say would be a consequence of term limits is already here and quite bad.

    Term limits is not a perfect solution, but maybe with a tweak or two, we could resolve your concerns, too. Or maybe we should just require lawmakers to swear they have read, in entirety, the bills they vote in favor of.

    Dustin (b54cdc)

  6. We should buy all Congressional staffers T-shirts that say “I’m with stupid”, pointing, of course, to their senator or rep. boss. Or maybe, “I was sent to Washington to do the people’s business, and all I got them was this lousy T-shirt”, to be worn, of course, by the idiotic senators and reps.

    rochf (ae9c58)

  7. Why not just make it mandatory that every bill be read in its entirety out loud in whatever house it is being proposed. Only those who are present for said reading may vote. Added bonus of cutting the length of most bills enormously given the short attention spans of most polls.

    Gazzer (adbfb4)

  8. It’s got be the water in D.C. How can these professional pols be so totally clueless and say such shocking things for public consumption? They really do see themselves as privileged and all-knowing overlords above the little people. And the little people ain’t liking it one bit.

    Another RNC ad writes itself. Thanks Max, from the party of NO!

    elissa (f224b1)

  9. Gazzer, that sounds good.

    Although I think Christian or someone might note this could lead to a lot of bureaucratic power. Details have to be filled in by someone, and that could simply be administrative and unelected folks.

    I challenged him on term limits not because he’s wrong, but because I’d like to hear what kind of solutions exist. I guess it’s all an end run around the fact that we’ve been electing bozos for a very long time.

    Dustin (b54cdc)

  10. It’s pathetic to think we’ve reached a point where our elected representatives think there’s nothing wrong with passing massive bills that they haven’t read. In fact, they act like they’re proud of it, for some reason. It’s like the Congressional equivalent of “The dog ate my homework.”

    rochf (ae9c58)

  11. Even if the Dem doofuses in congress did not “have time” to read the Obamacare bill before they voted on it, wouldn’t you think that by now -all these months later- they would have read it? Just so they could answer the question when they are asked? (Or do they they think that as more and more is known about how egregiously bad and unpopular the law is they are actually better off saying that they just didn’t know because the experts read it, and said it was fine?)

    elissa (f224b1)

  12. “Explain to me again why this guy’s subjective intent should count for anything in interpreting this bill?”

    Isn’t this kind of evidence that the intent is MORE important than the text? After all, some legislative counsel wrote the text. Baucus’s people asked for language that would do “x” and the staff gave it to him.

    The intent, though, belonged to the senator — who was actually elected.

    But in general I agree — legislative intent is all sorts of problematic. Like how does it get measured?

    geoff (017d51)

  13. geoff is demonstrably an idiot.

    JD (3dc31c)

  14. For years I have resisted term limits on the basis that we already have that power by virtue of the ballot. However, time and time again, I have underestimated the stupidity of the electorate. Here in AZ we are backing The Gov in her stand for SB1070, yet we overwhelmingly voted for Juan McCain who will anally ream us once again if re-elected, despite his current protestations to the contrary. Frankly, we deserve it. Folks were voting for people who had already withdrawn from the race, Sheesh!
    Also, there should be ZERO retirement benefits for pols. It should not be considered a career. Do your civic duty and get out.

    Gazzer (adbfb4)

  15. JD, you were right about the imdw association. I was reading the initial boycott Politico post, and the similarity is obvious.

    He’s just straining to find some way to fish for reactions, imo.

    Dustin (b54cdc)

  16. “Why not just make it mandatory that every bill be read in its entirety out loud in whatever house it is being proposed. Only those who are present for said reading may vote”

    Bills sometimes amend existing law — very specifically. Should you require they also read the law that is being amended? Or is there another pointless populist exercise they should carry out?

    geoff (68f669)

  17. “pointless”

    Gee, it really isn’t pointless to me that bills are read before passage, geoff, democrat. the problem you identify hasn’t occurred to any of us because it’s stupid.

    Dustin (b54cdc)

  18. geoff’s comments keep showing up in the filter. He’s almost certainly already banned. But what the he’ll. I ban people mostly for ugly attacks. Why not release comments if they’r not ugly attacks?

    Patterico (a7990b)

  19. Mendoucheous twatwafflery can be ugly.

    JD (3dc31c)

  20. Grrrr. We taxpayers supposedly hire experts too. Thye’re called Senators and Congressmen. We can fire them as well.

    starboardhelm (e93080)

  21. “It’s statutory language,” Baucus said. “We hire experts.

    So Senator Baucus cannot understand statutory language? Every American citizen is expected to understand what the laws says (ignorance of the law is no excuse) but the people voting for the law admit they find it too complicated.

    Sounds to me like he just admitted he’s stupid and incompetent.

    Subotai (952367)

  22. Explain to me again why this guy’s subjective intent should count for anything in interpreting this bill?

    Was he briefed on the contents of the bill? Did he have an idea of what he was voting for? Is that idea somewhere in the congressional record where we can retrieve it?

    Each negative answer diminishes the amount of intent we can reliably reconstruct and makes his intent less important in interpretation. The muddled nature of “authorship” of the bill further diminishes the value of the variable of “Baucus’ intent” in the equation of “what the bill means”.

    Because actually reconstructing the intent of Obamacare would be a herculean effort — I’m thinking Augean stables type of work, same subject matter after all — I’m okay with the plain language interpretation here as a shortcut. If the bill had been debated and enacted in a normal manner, we would have a robust record we could use to reconstruct meaning.

    The Baucus example here is bad facts. Discarding whatever intent he had here is probably safe because of the facts you’re dealing with (authorship/knowledge at time of vote/lack of record/self-serving statements by a dishonest hack/etc.) Embracing a general rule that discards an author’s intent is bad law.

    Hadlowe (4b3e4a)

  23. Dustin

    well, i admit i came close to convincing myself.

    Aaron Worthing (e7d72e)

  24. star

    i completely agree. this claim that they can pass this off to experts, which we keep hearing over and over, is the most risable part. if they can’t figure it out, then they need to look for new employment.

    I say we hire instead the people they are consulting.

    Aaron Worthing (e7d72e)

  25. “I say we hire instead the people they are consulting.

    Comment by Aaron Worthing”

    Oh, you kidder. I say we put them in prison or at least the funny farm, and hire some people who don’t like thousand page bills.

    Dustin (b54cdc)

  26. max baucus he much
    too raucus. tell you what… he
    can suck my _________

    ColonelHaiku (60a24c)

  27. Aaron Worthing:

    As an alternative, we could draft laws that did not require experts to explain them. Of course, that would cut alot of money out of the Washington scene. The current process goes like this.

    Expert: Here is a law I would like passed.
    Congressman: Let me see that. (Reads first few lines.) What is this gobbledygook about “realized but unrecognized gains not exceeding 4.3% of the value of the distributed property”?
    Expert: If you hire me full time, I could explain it to you. Plus, you would have a bigger staff than Joe Jerkwater down the hall.
    Congressman: Hell, it’s not my money. You’re hired.

    Hadlowe (4b3e4a)

  28. Dustin,

    As a Californian, I have seen first hand what the combination of gerrymandering and term limits have created. Add to this the necessity of a small political body to “delegate” and the Progressive belief in “experts” and you have a disastrous combination.

    I could write for quite some time on the dangers of term limits, and how they empower the bureaucracy and Unions — there is a reason SEIU is backing term limits in some constituencies — but instead I will recommend John Marini’s THE IMPERIAL CONGRESS (http://www.amazon.com/exec/obidos/ASIN/0886874084/theclaremontinst) as a place to begin looking at the expansion of Congress’ power and “institutional permanency.” Especially of concern is the growth in power of the permanent bureaucracy. This bureaucracy will only grow with term limits as termed out legislators become a part of that bureaucracy — or the structure around the congress.

    How many termed out legislators are now powerful lobbyists?

    How many union leaders, who control who gets to run for the short term offices, control bureaucratic agencies in California?

    Single best thing we could do is to end public unions.

    Second best thing, would be to expand the size of Congress and decrease the size of constituencies.

    These are after we require our legislators to actually read the legislation. It is utterly ridiculous.

    Christian (2852e9)

  29. Christian, you’ve made your point persuasively and I like your proposed solutions. Public unions are huge problem that must be addressed.

    Dustin (b54cdc)

  30. hadlowe

    i think the simplest thing is to pass a law that says this.

    “The unreasonable incomprehensibility of a law shall be a defense against all actions enforcing that law.”

    Of course as a lawyer, i realize i might be putting myself out of work. So… um… forget i said it.

    But joking aside. there is something to the idea that a person should be able to open the statute book and have a reasonable chance of figuring out what the law asks of him.

    Aaron Worthing (e7d72e)

  31. “I don’t need to read a book bill to know what’s in it!”

    AD - RtR/OS! (01b64a)

  32. It wouldn’t necessarily put you out of work. Your job would just be to argue that every bill was “unreasonable” in its incomprehensibility.

    Hadlowe (4b3e4a)

  33. A long long time ago I actually respected old Maxy. Not anymore – and JD is correct, it’s got to be imdw, or the infamous “i work here is done.”

    Dmac (d61c0d)

  34. Dustin, actually, I think the point raised about amendment of existing laws is a good one. Or, really, just reference to such laws.

    Here’s an example from a ballot measure we voted on in California a few years back:

    (a) Notwithstanding any other provision of law, probation
    shall not be granted to, nor shall the execution or imposition of sentence
    be suspended for, any person who is convicted of violating paragraph
    (2) or (6) of subdivision (a) of Section 261, Section 264.1, 266h, 266i, or
    266j, or 269, paragraph (2) or (3) of subdivision (c), or subdivision (d), of
    Section 286, paragraph (2) or (3) of subdivision (c), or subdivision (d), of
    Section 288a, subdivision (a) of Section 289 subdivision (c) of Section 311.4.

    Quite clearly simply reading this isn’t enough, unless you’re already well familiar with the referenced sections; you need to read those, too, to understand what the paragraph does. And since those are probably constructed similarly, you end up in an extensive chain.

    Should they all need to be read? Does the legislator need to certify to having read those, too?

    [Note that I’d argue that this is a sign that the law is overly complex: when we’re at the point that an ordinary person of reasonable intelligence can’t understand it without extensive study, we’ve gone wrong.]

    aphrael (e0cdc9)

  35. aphrael, I don’t see that as a problem. The laws should be read before being passed. The laws they amend should be read before being amended. This will not be impossibly complicated or time consuming, because this will greatly reduce the ability to create byzantine and unreadable and thousand page bills.

    The chain would only be as extensive as the session is long, of course. This is a feature, not a bug.

    But the perfect is the enemy of the good. There will always be some problem. Someone will complain that the readings of the bills are only in English, or that the congressman aren’t studying the meaning of what they read.

    The reason this isn’t a perfect solution is that reading the bill is just the most basic step to take before voting on it, not the fullest step of analysis. Pointing out that it’s not a complete understanding, when all we’re asking for is a floor to a legislator’s dereliction, is just obviously true.

    I think a reasonable reform would be for some kind of analysis be done as to how long it would take to read and understand a bill, and then requiring all yea votes to be a sworn affidavit that they have taken that time to read and understand the bill, and vote yes. For the Obamacare bill, this length of review would be very, very long. Feature, not bug.

    Dustin (b54cdc)

  36. aphrael – If the political class is trying to foist that upon the voting public, it is pretty clear that they do not want the voters to actually know what the political class is up to.

    JD (3dc31c)

  37. “I say we hire instead the people they are consulting.”

    This is them:

    http://slc.senate.gov/

    “Congressman: Hell, it’s not my money. You’re hired.”

    They do have limited budgets. I think it is up to them to decide whether to hire lots of people for little pay or a few people for a lot. But they don’t have to pay for the SLC out of that.

    geoff (688568)

  38. It is pretty clear that you do not think, “geoff”. It seems as though you draw inspiration from this.

    JD (3dc31c)

  39. “The laws should be read before being passed. The laws they amend should be read before being amended”

    Michelle Bachman has introduced a bill that reads:

    “SECTION 1. REPEAL OF PPACA.

    Effective as of the enactment of the Patient Protection and Affordable Care Act, such Act is repealed, and the provisions of law amended or repealed by such Act are restored or revived as if such Act had not been enacted.”

    That’s the whole thing. She’s doing this to repeal “Obamacare.”

    Does that mean that before passing that, someone would have to read the whole of the “Obamacare” law, as well as all that laws that it amended or changed (since those would be reinstated) ?

    “It is pretty clear that you do not think, “geoff”. It seems as though you draw inspiration from this.”

    I don’t understand what your problem is. I think the question of intent and text and whether it ought to be read or understood are quite interesting. If you don’t want to think through them, you don’t have to.

    geoff (df0dab)

  40. Does that mean that before passing that, someone would have to read the whole of the “Obamacare” law, as well as all that laws that it amended or changed (since those would be reinstated) ?

    Yes, absolutely. Of course it should. What in the world makes you think this is controversial?

    People should read the laws they are amending and passing. I insist. Do you disagree? I notice you, like imdw (a disgraced troll who liked child rape jokes… what a moron) do not actually advocate a position. What is your actual position? It’s easy to complain without doing what Christian did (pose a solution or idea).

    Dustin (b54cdc)

  41. No, it is clear you do not, but wish to be the neighborhood contrarian, and general buffoon.

    The next comment you make that is not mendoucheous will be your first.

    JD (3dc31c)

  42. What is your actual position?

    Head firmly impacted up my own arse.

    Comment by Jeffrey

    Dmac (d61c0d)

  43. JD – the political class didn’t foist that on the voting public. It was an initiative put on the ballot by activists.

    (The initiative in question passed overwhelmingly, because it was a “be harsher to sex offenders” initiative, and such things always pass overwhelmingly).

    aphrael (dbba02)

  44. My bad, aphrael.

    JD (3dc31c)

  45. I think Congress should be required to write legislation the same way they did initially, with quill and ink!! That will encourage brevity. Or at least go back to manual typewriters and carbon paper.

    MD in Philly (3d3f72)

  46. At least Baucus is honest in his own disgusting way. As for reading the bills on the floor of Congress, the republicans could do that every day, by voting against unanimously consent to deem the bills or amendments read. As for Baucus’ only reading ‘parts of the bill’, yeah, he only reads the parts of the bills that contain his corrupt bargains to make sure they were included. That’s the only part that matters.

    eaglewingz08 (83b841)


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