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One thing I'm unclear about is this: "If Congress wishes to withdraw its promises, it must say so." The question in the case, as I understand it, was whether p

by Imnimo 6y ago

One thing I'm unclear about is this: "If Congress wishes to withdraw its promises, it must say so." The question in the case, as I understand it, was whether previous acts of Congress had in fact dissolved the reservation. Could Congress, if they wanted to, pass a resolution saying, "Actually, such-and-such bill from 100-some years ago dissolved the reservation." Or can they only say, "Starting today, the reservation is dissolved." Is Congress empowered to clarify the meaning of its own past statements? Or once the text leaves Congress, only the courts can say what that text means, and if the courts disagree with Congress, then Congress can only remedy that going forward?

thefounder 6y ago
I believe the Congress can simply enact a new law and say there is no such thing as a reservation and the law would he constitutional. That being said it would be similar with China's latest laws on HK if not worse.
veridies 6y ago
That's a good question. I'm not a lawyer, but I think it would be problematic if Congress could make those decisions. That would allow them to de facto create ex post facto laws by contriving "interpretations" of past laws. It might incentivize intentionally ambiguous laws that allow them flexibility in the future. At that point, the Supreme Court would be in the very odd position of deciding whether something is a plausible interpretation of a previous law.
- Imnimo 6y ago
  Yeah, I agree. That could definitely get into some really sticky territory. I guess the other side is that a malevolent court could contrive those interpretations, and Congress would be only be able rectify the situation going forward. I don't know what the best solution is, but I guess I trust the Supreme Court more than I trust Congress. Still, it seems weird that Congress wouldn't get a say in determining what their own bills mean when there's a dispute.
  - SamReidHughes 6y ago
    Congress isn't the same Congress that passed the bills.
    - Imnimo 6y ago
      That's a good point. I don't really have a sense for whether the legal system makes any differentiation between different sessions of Congress, or whether it's just viewed as one continuously-operating entity. Like would Congress be able to retroactively-clarify their intent if the law was very recent and the same Congress was still in session?
      - pdonis 6y ago
        > I don't really have a sense for whether the legal system makes any differentiation between different sessions of Congress, or whether it's just viewed as one continuously-operating entity. Congress as an institution is one continuously operating entity. But the important question legally is not what Congress is, but what the actual text of the statute passed by Congress and signed by the President is. That is the law. In other words, the Constitution does not say "whatever Congress says is the law". It lays out a specific process by which laws get passed, and says what the limitations of that process are (no ex post facto laws, which means Congress can't pass a law that says some previous law meant something different, and have that retroactively apply). > would Congress be able to retroactively-clarify their intent if the law was very recent and the same Congress was still in session? No, but they could pass a new statute repealing the old one, or replacing it with new language, which would limit the time the old statute was in effect.
      - kelnos 6y ago
        Congress has no ability to do this, period. If they screw up and pass something ambiguous that gets interpreted contrary to their desires, their only remedy is to pass a new law to fix the problems. That will only -- by design -- cover new cases, as they are constitutionally barred from passing legislation that takes retroactive effect.
  - 6y ago
anthonygd 6y ago
No. Congress writes laws but they're supposed to be careful because the Supreme Court interprets. They'll essentially have to create a new bill (or tack this on to something else going through) and go through the full process, i.e. get senate approval and the presidential signature.
lostcolony 6y ago
I'm not sure it matters. Whether Congress creates a new law overwriting the old, or passes one that tries to explain the old differently than it was executed on, if anyone doesn't object it's moot, and if anyone does, it will end up in the courts. Particular to this case, Congress could do either, and either way the courts will have to decide whether it's fair to do. But, also particular to this case, Congress has done neither, so the courts were left with interpreting what Congress last decided.
charwalker 6y ago
I think they could, but even if it matched the SCoutUS decision it could only apply going forward or it would be unconstitutional via Section 9.3 on barring ex post facto laws. Now if Congress were to pass a law saying not that something 100 years ago meant XYZ but that as of the sign date the reservation no longer exists, that might pass 9.3 but if that bill hits the courts, lower courts would need to reference this case and probably conclude that it isn't a correct application and ax it.
pdonis 6y ago
> Is Congress empowered to clarify the meaning of its own past statements? I don't think so. The statute is the actual text that is passed by both houses of Congress and signed by the President. Congress does not have the power to "interpret". It only has the power to pass a new statute, which can only be in effect as of the date of its passage (when the President signs it). Anything Congress says or does that does not follow the process given in the Constitution for passing a law is not a law and does not have the force of law.
- R0b0t1 6y ago
  But what if the court were being intentionally obtuse and kept interpreting laws in face of the facts and the intent of congress? You need to consider this as something less brazen could be used to undermine congress' authority. The judicial branch de facto has the most power of any branch in the US. The positions are not elected.
  - pdonis 6y ago
    > what if the court were being intentionally obtuse and kept interpreting laws in face of the facts and the intent of congress? Arguably the court has been doing that in many cases for a long time. But I don't think the court was doing that in this particular case. The only recourse is to change, over time, who sits on the court. > The judicial branch de facto has the most power of any branch in the US. Yes, agreed.
  - rileymat2 6y ago
    If there was something like that, congress can impeach judges.
  - astura 6y ago
    Federal judges can be impeached
  - learnstats2 6y ago
    > But what if the court were being intentionally obtuse and kept interpreting laws in face of the facts and the intent of congress? This would apply for whichever organisation is responsible for interpreting the existing law: there has to be some such organisation, with significant political power: especially where this power is centralised as in the US Supreme Court, rather than distributed. Giving the executive this power, of unlimited re-interpretation the words of its previous incarnations, seems unwise and worse. Should congress be able to say about the negotations of its predecessors, "ah, in retrospect the previous session didn't mean it like that"? This is recognised as judicial independence: https://en.wikipedia.org/wiki/Judicial_independence#Theory_of_judicial_independence https://en.wikipedia.org/wiki/Judicial_independence#Theory_o...
jacobwilliamroy 6y ago
Congress controls the reservation system. It's not real sovereignty. That's one of many reasons why there is such large debate over accepting federal recognition among Kanaka specifically. At that point the federal government controls the land, distributes it, decides who is and is not eligible to use the land. The government literally stole my friend's house just by revising the definition of "hawaiian" and telling her she was not eligible.
Gene_Parmesan 6y ago
Congress writes the laws. Courts interpret them. Congress can't simply say "oh actually back then we meant this other thing," as that would be completely nullifying the power of the Courts. Yes, they can make an amendment that changes/clarifies the meaning of an existing law, and that might sound like the same thing, but doing that requires the formality of the process -- in particular, bringing it to a vote.
- cheerlessbog 6y ago
  Aren't retroactive laws a thing?
  - brianwawok 6y ago
    Like wearing white shirts is illegal, effective 2001? So anyone you can prove wore a white shirt 2001-2020 is going to jail? That would be pretty stupid.
    - cheerlessbog 6y ago
      It's possible in some jurisdictions although as you say they can very easily be unjust. https://en.m.wikipedia.org/wiki/Ex_post_facto_law https://en.m.wikipedia.org/wiki/Ex_post_facto_law
  - arkis22 6y ago
    Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution.
    - deleted 6y ago
      [deleted]
    - adrr 6y ago
      That only applies to criminal matters and only in terms of punishment. Congress could decriminalize drugs and make it retroactive for people who have yet to be convicted or charged.
Jabbles 6y ago
I believe the answer is here: https://en.wikipedia.org/wiki/Ex_post_facto_law#United_States https://en.wikipedia.org/wiki/Ex_post_facto_law#United_State... Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution.
goodluckchuck 6y ago
No, it doesn’t mean Congress has that power. That question hasn’t been decided. That question would be raised if congress attempts to change the law. Until then, a Congress is bound by the Court’s interpretation of what the law is/was/means. In short, Congress lack the authority to tell the courts what a prior law meant. If they’re not happy with the interpretation then. Ingress has to change the words of the statute / treaty.
Laremere 6y ago
If your interested in this kind of stuff, I highly recommend the podcast "What Trump Can Teach Us About Con Law". It's a podcast focused on constitution law rulings made by the supreme court. Often looking at a current court ruling, giving historical context with historical cases that laid down precedent. The political disdain for Trump comes through the hosts a little bit, but I think it's fairly neutral in it's evaluation of the cases, and very educational. As I understand it: The court's job is to interpret the law under specific circumstances. As a stupid example, lets say that congress makes a law that you can't have those fake flamingos on your lawn, else you'll go to jail. Fred ignores the law and puts some fake flamingos on their lawn. The executive branch enforces the laws, so the police arrest Fred. The courts rule that you violated the law, so to jail you go. Bob is rebellious, so he paints his fake flamingos with orange spray paint. The police arrest Bob under that law, and in court he argues a core characteristic of Flamingos is that they're pink. So really he just has decorative orange birds in his lawn. If the court agrees with his argument, then he goes free. This sets a precedent: The judicial branch didn't really make any laws here, but they kind of did. Courts don't have the power to make laws and decide on a case by case basis what's legal or not. So they take breaking precedent as a really, really big deal. Now what congress can do is go back and make any birds in the form of flamingos illegal, no matter the color. Now that the law has changed, the courts will use a new interpretation, and Bob could now be arrested if he doesn't take down his "decorative orange birds". However, he could make another argument in court: That he has the first amendment right to have orange flamingos because that's freedom of speech. The courts (possibly up to the supreme court) can rule that he is indeed protected by the first amendment, and nullify congress's law. Of course, the constitution can be amended. So if people really hated fake lawn flamingos, they could go through that process and remove the first amendment's protection in this case. The bar for changing the constition is so high that it basically doesn't happen for anything political. This is why the supreme court's rulings can be so politicized, against the court's wishes. The courts aren't political because they don't make laws, and are intended to be impartial interpreters of it. However a 5-4 split supreme court ruling today is basically law until there's a super-super-majority of people who want to change it.

by Imnimo 6y ago

thefounder 6y ago

I believe the Congress can simply enact a new law and say there is no such thing as a reservation and the law would he constitutional. That being said it would be similar with China's latest laws on HK if not worse.

veridies 6y ago

That's a good question. I'm not a lawyer, but I think it would be problematic if Congress could make those decisions. That would allow them to de facto create ex post facto laws by contriving "interpretations" of past laws. It might incentivize intentionally ambiguous laws that allow them flexibility in the future. At that point, the Supreme Court would be in the very odd position of deciding whether something is a plausible interpretation of a previous law.

Imnimo 6y ago
Yeah, I agree. That could definitely get into some really sticky territory. I guess the other side is that a malevolent court could contrive those interpretations, and Congress would be only be able rectify the situation going forward. I don't know what the best solution is, but I guess I trust the Supreme Court more than I trust Congress. Still, it seems weird that Congress wouldn't get a say in determining what their own bills mean when there's a dispute.
- SamReidHughes 6y ago
  Congress isn't the same Congress that passed the bills.
  - Imnimo 6y ago
    That's a good point. I don't really have a sense for whether the legal system makes any differentiation between different sessions of Congress, or whether it's just viewed as one continuously-operating entity. Like would Congress be able to retroactively-clarify their intent if the law was very recent and the same Congress was still in session?
    - pdonis 6y ago
      > I don't really have a sense for whether the legal system makes any differentiation between different sessions of Congress, or whether it's just viewed as one continuously-operating entity. Congress as an institution is one continuously operating entity. But the important question legally is not what Congress is, but what the actual text of the statute passed by Congress and signed by the President is. That is the law. In other words, the Constitution does not say "whatever Congress says is the law". It lays out a specific process by which laws get passed, and says what the limitations of that process are (no ex post facto laws, which means Congress can't pass a law that says some previous law meant something different, and have that retroactively apply). > would Congress be able to retroactively-clarify their intent if the law was very recent and the same Congress was still in session? No, but they could pass a new statute repealing the old one, or replacing it with new language, which would limit the time the old statute was in effect.
    - kelnos 6y ago
      Congress has no ability to do this, period. If they screw up and pass something ambiguous that gets interpreted contrary to their desires, their only remedy is to pass a new law to fix the problems. That will only -- by design -- cover new cases, as they are constitutionally barred from passing legislation that takes retroactive effect.
- 6y ago

anthonygd 6y ago

No. Congress writes laws but they're supposed to be careful because the Supreme Court interprets. They'll essentially have to create a new bill (or tack this on to something else going through) and go through the full process, i.e. get senate approval and the presidential signature.

lostcolony 6y ago

I'm not sure it matters. Whether Congress creates a new law overwriting the old, or passes one that tries to explain the old differently than it was executed on, if anyone doesn't object it's moot, and if anyone does, it will end up in the courts. Particular to this case, Congress could do either, and either way the courts will have to decide whether it's fair to do. But, also particular to this case, Congress has done neither, so the courts were left with interpreting what Congress last decided.

charwalker 6y ago

I think they could, but even if it matched the SCoutUS decision it could only apply going forward or it would be unconstitutional via Section 9.3 on barring ex post facto laws. Now if Congress were to pass a law saying not that something 100 years ago meant XYZ but that as of the sign date the reservation no longer exists, that might pass 9.3 but if that bill hits the courts, lower courts would need to reference this case and probably conclude that it isn't a correct application and ax it.

pdonis 6y ago

> Is Congress empowered to clarify the meaning of its own past statements? I don't think so. The statute is the actual text that is passed by both houses of Congress and signed by the President. Congress does not have the power to "interpret". It only has the power to pass a new statute, which can only be in effect as of the date of its passage (when the President signs it). Anything Congress says or does that does not follow the process given in the Constitution for passing a law is not a law and does not have the force of law.

R0b0t1 6y ago
But what if the court were being intentionally obtuse and kept interpreting laws in face of the facts and the intent of congress? You need to consider this as something less brazen could be used to undermine congress' authority. The judicial branch de facto has the most power of any branch in the US. The positions are not elected.
- pdonis 6y ago
  > what if the court were being intentionally obtuse and kept interpreting laws in face of the facts and the intent of congress? Arguably the court has been doing that in many cases for a long time. But I don't think the court was doing that in this particular case. The only recourse is to change, over time, who sits on the court. > The judicial branch de facto has the most power of any branch in the US. Yes, agreed.
- rileymat2 6y ago
  If there was something like that, congress can impeach judges.
- astura 6y ago
  Federal judges can be impeached
- learnstats2 6y ago
  > But what if the court were being intentionally obtuse and kept interpreting laws in face of the facts and the intent of congress? This would apply for whichever organisation is responsible for interpreting the existing law: there has to be some such organisation, with significant political power: especially where this power is centralised as in the US Supreme Court, rather than distributed. Giving the executive this power, of unlimited re-interpretation the words of its previous incarnations, seems unwise and worse. Should congress be able to say about the negotations of its predecessors, "ah, in retrospect the previous session didn't mean it like that"? This is recognised as judicial independence: https://en.wikipedia.org/wiki/Judicial_independence#Theory_of_judicial_independence https://en.wikipedia.org/wiki/Judicial_independence#Theory_o...

jacobwilliamroy 6y ago

Congress controls the reservation system. It's not real sovereignty. That's one of many reasons why there is such large debate over accepting federal recognition among Kanaka specifically. At that point the federal government controls the land, distributes it, decides who is and is not eligible to use the land. The government literally stole my friend's house just by revising the definition of "hawaiian" and telling her she was not eligible.

Gene_Parmesan 6y ago

Congress writes the laws. Courts interpret them. Congress can't simply say "oh actually back then we meant this other thing," as that would be completely nullifying the power of the Courts. Yes, they can make an amendment that changes/clarifies the meaning of an existing law, and that might sound like the same thing, but doing that requires the formality of the process -- in particular, bringing it to a vote.

cheerlessbog 6y ago
Aren't retroactive laws a thing?
- brianwawok 6y ago
  Like wearing white shirts is illegal, effective 2001? So anyone you can prove wore a white shirt 2001-2020 is going to jail? That would be pretty stupid.
  - cheerlessbog 6y ago
    It's possible in some jurisdictions although as you say they can very easily be unjust. https://en.m.wikipedia.org/wiki/Ex_post_facto_law https://en.m.wikipedia.org/wiki/Ex_post_facto_law
- arkis22 6y ago
  Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution.
  - deleted 6y ago
    [deleted]
  - adrr 6y ago
    That only applies to criminal matters and only in terms of punishment. Congress could decriminalize drugs and make it retroactive for people who have yet to be convicted or charged.

Jabbles 6y ago

I believe the answer is here: https://en.wikipedia.org/wiki/Ex_post_facto_law#United_States https://en.wikipedia.org/wiki/Ex_post_facto_law#United_State... Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution.

goodluckchuck 6y ago

No, it doesn’t mean Congress has that power. That question hasn’t been decided. That question would be raised if congress attempts to change the law. Until then, a Congress is bound by the Court’s interpretation of what the law is/was/means. In short, Congress lack the authority to tell the courts what a prior law meant. If they’re not happy with the interpretation then. Ingress has to change the words of the statute / treaty.

Laremere 6y ago

If your interested in this kind of stuff, I highly recommend the podcast "What Trump Can Teach Us About Con Law". It's a podcast focused on constitution law rulings made by the supreme court. Often looking at a current court ruling, giving historical context with historical cases that laid down precedent. The political disdain for Trump comes through the hosts a little bit, but I think it's fairly neutral in it's evaluation of the cases, and very educational. As I understand it: The court's job is to interpret the law under specific circumstances. As a stupid example, lets say that congress makes a law that you can't have those fake flamingos on your lawn, else you'll go to jail. Fred ignores the law and puts some fake flamingos on their lawn. The executive branch enforces the laws, so the police arrest Fred. The courts rule that you violated the law, so to jail you go. Bob is rebellious, so he paints his fake flamingos with orange spray paint. The police arrest Bob under that law, and in court he argues a core characteristic of Flamingos is that they're pink. So really he just has decorative orange birds in his lawn. If the court agrees with his argument, then he goes free. This sets a precedent: The judicial branch didn't really make any laws here, but they kind of did. Courts don't have the power to make laws and decide on a case by case basis what's legal or not. So they take breaking precedent as a really, really big deal. Now what congress can do is go back and make any birds in the form of flamingos illegal, no matter the color. Now that the law has changed, the courts will use a new interpretation, and Bob could now be arrested if he doesn't take down his "decorative orange birds". However, he could make another argument in court: That he has the first amendment right to have orange flamingos because that's freedom of speech. The courts (possibly up to the supreme court) can rule that he is indeed protected by the first amendment, and nullify congress's law. Of course, the constitution can be amended. So if people really hated fake lawn flamingos, they could go through that process and remove the first amendment's protection in this case. The bar for changing the constition is so high that it basically doesn't happen for anything political. This is why the supreme court's rulings can be so politicized, against the court's wishes. The courts aren't political because they don't make laws, and are intended to be impartial interpreters of it. However a 5-4 split supreme court ruling today is basically law until there's a super-super-majority of people who want to change it.