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I agree that it's time to legislate, but this is not one of those cases where Congress caused a problem and is trying to use the court to clean it up. In this c

I agree that it's time to legislate, but this is not one of those cases where Congress caused a problem and is trying to use the court to clean it up. In this case, the courts completely invented an immunity precedent out of nothing, and now Congress will have to fix it. Just want to note that legislators are a little less at fault here than they normally are.

partiallypro 6y ago
I am aware that this was a legislating from the bench situation, but it is up to Congress to fix it. Waiting on the courts to get around to it will not be fast enough, or may never come.
- erichocean 6y ago
  > legislating from the bench The most effective deterrent to "legislating from the bench" is to recall those Justices who did the legislating. Neither party will do this, though—enacting reforms through the courts is far more efficient than passing difficult legislation through the House, Senate, and the Presidency (all of which can anger voters). Much better to let the courts do it, and give brave speeches to the media about "judicial overreach" when required to appease voters. > Waiting on the courts to get around to it will not be fast enough, or may never come. The current situation is working well for everyone with the power to change it (see above).
  - mjburgess 6y ago
    In a common law system the role of the judiciary is to "legislate from the bench". I've never understood this peculiarly American objection.
    - deleted 6y ago
      [deleted]
    - fennecfoxen 6y ago
      America's Constitution was designed from inception to have strict separations of responsibilities among the legislative, executive, and judicial branches, such that they must work together to exercise power. This is meant to prevent any one individual or a party from becoming too powerful and thus endangering liberty. When they are not working together, they are meant to be powerless. Legislative power in particular was meant to be wielded by Congresspersons directly accountable to their constituents. Judges as legislators violate this separation, undermining not only key protections on democratic integrity, but the legitimacy of the whole scheme, through its avoidance of that direct democratic accountability. Note that excessive delegation from the legislature to the executive branch through agencies with rule-making power is also a separations-of-power concern, and there is special law around the procedures by which executive agency rule-making may take place. Another case is executive power being wielded by Congress: Seila Law LLC v. Consumer Financial Protection Bureau, argued this March and not yet decided, took on the problem that the head of the CFPB was not accountable to the President.
      - mjburgess 6y ago
        In practice, there is no coherent "separation of power". Power is not some multivalent thing which can be exercised differently by different institutions. Power here is the ability of one group to direct/constrain the actions of another.. the judiciary, the executive and the legislature all exercise the same power. The only thing "separation" achieves is a system of mutual antagonism which functions (poorly) as a system of accountability. Here, congress at any point can redress "legislating from the bench" (ie., establishing legal precedent) by passing new law. If the judiciary ignores this law, then they can be removed from office. I cannot see any circumstance here where the legislature has issues new law in redress for a judicial ruling and then the judiciary has gone on to ignore it. What we're talking about here is when judges have simply "made up rules" where the law fails to provide answers. that is the role of the judiciary in a common law system! It's what provides for reasonable standards of individual freedom which adapt to the age. rather than havign everyone legislataed by an infinite number of rules est. in 1701
        fennecfoxen 6y ago
    - redler 6y ago
      Judges should adjudicate from the bench -- decide matters in dispute. To "legislate from the bench" would be judges creating laws -- the province of the legislative branch, not the judiciary. It's certainly true there's a blurry space there, and when courts make decisions that may be interpreted as the equivalent of manifesting new law, you'll hear complaints about "legislating from the bench".
      - erichocean 6y ago
        > It's certainly true there's a blurry space there It's trivial to determine if the court has "legislated from the bench" though: do parties unrelated to the lawsuit in question immediately, after the decision, have to behave substantially differently? Do extremely large numbers of people have to behave substantially differently after the decision? If they do, that's "legislating from the bench." That's literally the test. When they don't, a decision only affects the people in the suit and similar situations going forward (precedent). That's just the normal, everyday action of the judiciary branch. It's still "policy" (broadly speaking), but it's not legislating. In the most recent case, changing literally every Title IX program, overnight—as well as all employment scenarios nationwide—is clearly "legislating from the bench", since it a) applies with immediate effect to large numbers of people not party to the suit, and b) requires them to behave substantially differently than they had before the decision. (I'm fine with "legislating from the bench", BTW, that's literally how Civil Rights legislation is intended to work. Congress passed responsibility to the courts, just like in other areas they've passed responsibility to the executive branch.)
        MichaelBurge 6y ago
        If a law is passed and people wait 40 years to enforce it(but then it's hot-topic and so will be enforced widely), is it "legislating from the bench" for the court to enforce a law that already exists?
        erichocean 6y ago
        It's literally the first criteria that to count as new legislation, the effect must be immediate: > do parties unrelated to the lawsuit in question immediately, after the decision, have to behave substantially differently? The court has not argued in their decision that Congress meant to provide these protections—they explicitly only argued that the law can be (re-)interpreted today as allowing it (using a broad interpretation). They fully admit that Congress at the time did not expect it to be interpreted this way. That's the "legislating" part of "legislating from the bench": the actual legislators who voted on the original legislation did not intend to cause this behavioral change on ~200M Americans (at the time it was passed). 40 years later, the courts made the decision to legislate that behavior, from the bench. Personally, I have to admire that kind of Chutzpah—no one will accuse today's court of lacking the will to power. That one of Trump's "conservative" justices wrote the decision is the icing on the cake. :)
loeg 6y ago
Yes and no. Congress has had something like 40 years to write legislation contradicting the judicial construction and has failed to do so.
- burkaman 6y ago
  Again I agree, but the original formulation of qualified immunity seemed a little more reasonable, although it was still wrong in my opinion. The original decision: > A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied. - https://www.leagle.com/decision/1967933386us5471842 https://www.leagle.com/decision/1967933386us5471842 I don't agree with this because ignorance of the law is not usually an excuse, but I imagine a majority of Congress might. However, the courts have gradually expanded "reasonably believed to be valid" to mean there must be "precisely factually on-point caselaw" determining the actions are unconstitutional. Sort of a frog in boiling water situation where a well-meaning member of Congress might not realize there was a problem until decades after the initial decision.
  - User23 6y ago
    > I don't agree with this because ignorance of the law is not usually an excuse I think that mens rea[1] should be more broadly required. Our current system is such that virtually everyone is breaking the law and only enforcement and prosecutorial discretion protects us. [1]https://en.wikipedia.org/wiki/Mens_rea https://en.wikipedia.org/wiki/Mens_rea
    - burkaman 6y ago
      This is a different issue, I think. Mens rea is about intent or "malice aforethought", but that doesn't mean you know what you're doing is illegal, it just means you are acting intentionally and not by mistake. See the different levels of mens rea in the US: https://en.wikipedia.org/wiki/Mens_rea#Model_Penal_Code https://en.wikipedia.org/wiki/Mens_rea#Model_Penal_Code It's about understanding the consequences of your actions, nothing to do with knowledge of the law. Currently, if an officer violates your rights on purpose, but there's no "precisely factually on-point caselaw" deciding what they did is unconstitutional, then they're immune from prosecution. They had mens rea, but it doesn't matter.
zerocrates 6y ago
Congress has no problem doing this kind of "fixing" of the Court's decisions when it so suits them: see the passage of RFRA in the wake of Employment Division v. Smith. There's probably no better time than right now to get the support needed to pass a law eliminating QI. While we're at it, we can pass a law to replace Bivens rather than have analogous civil rights cases involving federal agents subject to the courts' whims.
- PaulDavisThe1st 6y ago
  Except that the Senate leader has declared any such effort "dead on arrival".
- setpatchaddress 6y ago
  There's no chance to fix systemic issues of any sort unless the Dems take the Senate. It wouldn't hurt to persuade Biden to make it part of his first-100-days package.
m463 6y ago
You know, congress has immunity too. I think the thinking is to allow them to pass laws that must be passed, but there would be no personal conflict of interest.

partiallypro 6y ago

I am aware that this was a legislating from the bench situation, but it is up to Congress to fix it. Waiting on the courts to get around to it will not be fast enough, or may never come.

erichocean 6y ago
> legislating from the bench The most effective deterrent to "legislating from the bench" is to recall those Justices who did the legislating. Neither party will do this, though—enacting reforms through the courts is far more efficient than passing difficult legislation through the House, Senate, and the Presidency (all of which can anger voters). Much better to let the courts do it, and give brave speeches to the media about "judicial overreach" when required to appease voters. > Waiting on the courts to get around to it will not be fast enough, or may never come. The current situation is working well for everyone with the power to change it (see above).
- mjburgess 6y ago
  In a common law system the role of the judiciary is to "legislate from the bench". I've never understood this peculiarly American objection.
  - deleted 6y ago
    [deleted]
  - fennecfoxen 6y ago
    America's Constitution was designed from inception to have strict separations of responsibilities among the legislative, executive, and judicial branches, such that they must work together to exercise power. This is meant to prevent any one individual or a party from becoming too powerful and thus endangering liberty. When they are not working together, they are meant to be powerless. Legislative power in particular was meant to be wielded by Congresspersons directly accountable to their constituents. Judges as legislators violate this separation, undermining not only key protections on democratic integrity, but the legitimacy of the whole scheme, through its avoidance of that direct democratic accountability. Note that excessive delegation from the legislature to the executive branch through agencies with rule-making power is also a separations-of-power concern, and there is special law around the procedures by which executive agency rule-making may take place. Another case is executive power being wielded by Congress: Seila Law LLC v. Consumer Financial Protection Bureau, argued this March and not yet decided, took on the problem that the head of the CFPB was not accountable to the President.
    - mjburgess 6y ago
      In practice, there is no coherent "separation of power". Power is not some multivalent thing which can be exercised differently by different institutions. Power here is the ability of one group to direct/constrain the actions of another.. the judiciary, the executive and the legislature all exercise the same power. The only thing "separation" achieves is a system of mutual antagonism which functions (poorly) as a system of accountability. Here, congress at any point can redress "legislating from the bench" (ie., establishing legal precedent) by passing new law. If the judiciary ignores this law, then they can be removed from office. I cannot see any circumstance here where the legislature has issues new law in redress for a judicial ruling and then the judiciary has gone on to ignore it. What we're talking about here is when judges have simply "made up rules" where the law fails to provide answers. that is the role of the judiciary in a common law system! It's what provides for reasonable standards of individual freedom which adapt to the age. rather than havign everyone legislataed by an infinite number of rules est. in 1701
      - fennecfoxen 6y ago
  - redler 6y ago
    Judges should adjudicate from the bench -- decide matters in dispute. To "legislate from the bench" would be judges creating laws -- the province of the legislative branch, not the judiciary. It's certainly true there's a blurry space there, and when courts make decisions that may be interpreted as the equivalent of manifesting new law, you'll hear complaints about "legislating from the bench".
    - erichocean 6y ago
      > It's certainly true there's a blurry space there It's trivial to determine if the court has "legislated from the bench" though: do parties unrelated to the lawsuit in question immediately, after the decision, have to behave substantially differently? Do extremely large numbers of people have to behave substantially differently after the decision? If they do, that's "legislating from the bench." That's literally the test. When they don't, a decision only affects the people in the suit and similar situations going forward (precedent). That's just the normal, everyday action of the judiciary branch. It's still "policy" (broadly speaking), but it's not legislating. In the most recent case, changing literally every Title IX program, overnight—as well as all employment scenarios nationwide—is clearly "legislating from the bench", since it a) applies with immediate effect to large numbers of people not party to the suit, and b) requires them to behave substantially differently than they had before the decision. (I'm fine with "legislating from the bench", BTW, that's literally how Civil Rights legislation is intended to work. Congress passed responsibility to the courts, just like in other areas they've passed responsibility to the executive branch.)
      - MichaelBurge 6y ago
        If a law is passed and people wait 40 years to enforce it(but then it's hot-topic and so will be enforced widely), is it "legislating from the bench" for the court to enforce a law that already exists?
        erichocean 6y ago
        It's literally the first criteria that to count as new legislation, the effect must be immediate: > do parties unrelated to the lawsuit in question immediately, after the decision, have to behave substantially differently? The court has not argued in their decision that Congress meant to provide these protections—they explicitly only argued that the law can be (re-)interpreted today as allowing it (using a broad interpretation). They fully admit that Congress at the time did not expect it to be interpreted this way. That's the "legislating" part of "legislating from the bench": the actual legislators who voted on the original legislation did not intend to cause this behavioral change on ~200M Americans (at the time it was passed). 40 years later, the courts made the decision to legislate that behavior, from the bench. Personally, I have to admire that kind of Chutzpah—no one will accuse today's court of lacking the will to power. That one of Trump's "conservative" justices wrote the decision is the icing on the cake. :)

loeg 6y ago

Yes and no. Congress has had something like 40 years to write legislation contradicting the judicial construction and has failed to do so.

burkaman 6y ago
Again I agree, but the original formulation of qualified immunity seemed a little more reasonable, although it was still wrong in my opinion. The original decision: > A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied. - https://www.leagle.com/decision/1967933386us5471842 https://www.leagle.com/decision/1967933386us5471842 I don't agree with this because ignorance of the law is not usually an excuse, but I imagine a majority of Congress might. However, the courts have gradually expanded "reasonably believed to be valid" to mean there must be "precisely factually on-point caselaw" determining the actions are unconstitutional. Sort of a frog in boiling water situation where a well-meaning member of Congress might not realize there was a problem until decades after the initial decision.
- User23 6y ago
  > I don't agree with this because ignorance of the law is not usually an excuse I think that mens rea[1] should be more broadly required. Our current system is such that virtually everyone is breaking the law and only enforcement and prosecutorial discretion protects us. [1]https://en.wikipedia.org/wiki/Mens_rea https://en.wikipedia.org/wiki/Mens_rea
  - burkaman 6y ago
    This is a different issue, I think. Mens rea is about intent or "malice aforethought", but that doesn't mean you know what you're doing is illegal, it just means you are acting intentionally and not by mistake. See the different levels of mens rea in the US: https://en.wikipedia.org/wiki/Mens_rea#Model_Penal_Code https://en.wikipedia.org/wiki/Mens_rea#Model_Penal_Code It's about understanding the consequences of your actions, nothing to do with knowledge of the law. Currently, if an officer violates your rights on purpose, but there's no "precisely factually on-point caselaw" deciding what they did is unconstitutional, then they're immune from prosecution. They had mens rea, but it doesn't matter.

zerocrates 6y ago

Congress has no problem doing this kind of "fixing" of the Court's decisions when it so suits them: see the passage of RFRA in the wake of Employment Division v. Smith. There's probably no better time than right now to get the support needed to pass a law eliminating QI. While we're at it, we can pass a law to replace Bivens rather than have analogous civil rights cases involving federal agents subject to the courts' whims.

PaulDavisThe1st 6y ago
Except that the Senate leader has declared any such effort "dead on arrival".
setpatchaddress 6y ago
There's no chance to fix systemic issues of any sort unless the Dems take the Senate. It wouldn't hurt to persuade Biden to make it part of his first-100-days package.

m463 6y ago

You know, congress has immunity too. I think the thinking is to allow them to pass laws that must be passed, but there would be no personal conflict of interest.