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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 e

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.
- alasdair_ 6y ago
  >I guess I trust the Supreme Court more than I trust Congress It's quite a damning indictment of US-style democracy that people trust a small cabal of unelected lifetime appointees without any meaningful oversight, over a larger pool of democratically elected officials.
  - Bud 6y ago
    A "cabal" is by definition a secret political clique or faction which is unknown to the outside world. It's therefore a big reach to call the Supreme Court a "cabal".
    - labster 6y ago
      Public knowledge of doesn't define a cabal, only the secrecy of its decisions and who it benefits. The Supreme Court hears arguments with no recordings allowed, then makes its decisions in secret. What do they have to hide? And the only thing we ever get from the Court is the hundreds of pages in reasoning as to why they made the decision.
      - cvoss 6y ago
        > The Supreme Court hears arguments with no recordings allowed This could not be further from the truth. Complete audio recordings and transcripts dating back to 1955 are available on oyez.org, the more recent of which are likewise available on the Court's own website. During non-pandemic operation, the Court hearings are open to the public. For the cases argued during the pandemic shutdown, the hearings were, in fact, livestreamed. You can hear the justices trying on different lines of reasoning for size during these arguments. So in a very real sense, we get to see a lot of their decision-making process. Yes, they hold a private conference at which some discussion and the vote takes place. I wouldn't have it any other way. I don't want any of the justices to face social pressure in that moment. > hundreds of pages in reasoning as to why they made the decision This reads as an argument against the position that the Court is secretive.
  - lr4444lr 6y ago
    The court is supposed to be exactly as you describe as a counterweight to legislators affected by vicissitudes of an electorate every 2 or 6 years. This is a feature, not a bug, of the American republic.
- veridies 6y ago
  > Still, it seems weird that Congress wouldn't get a say in determining what their own bills mean when there's a dispute. That's true, although you might argue that Congress should be clearer when they write their laws to begin with.
  - smegger001 6y ago
    Require simple easily parsable English and as little ambiguity as possible. and then well define every term and phrase. include commenting much like code in the law it self. Along with a version history and changelog for with reasons given for each change. But we live a the world of common law tradition in the US. and law unfortunately or not does not behave like code.
- kelnos 6y ago
  > Still, it seems weird that Congress wouldn't get a say in determining what their own bills mean when there's a dispute. That's an interesting point that has me thinking. My feeling on this is that this is actually as designed. Congress' job is to pass laws after writing them in whatever way they deem prudent. But Congress doesn't really have an interest in the enforcement of those laws, up until the point their constituents come to them and say "hey, this law y'all passed, it isn't really working out... do something to make it better". And if there's a dispute as to the enforcement of those laws, an independent third party (the judiciary) mediates and decides, as seems appropriate. But, again, Congress doesn't get involved there, because it's the executive's job to actually apply the law. If Congress does get a say in interpretation, that means they could change their minds on existing law as political winds change, without going through the proper process of passing new legislation. They shouldn't get to do that, especially not for laws that are already on the books. That would amount to the power to write ex post facto laws, which are considered such a bad idea that they're expressly forbidden by the US Constitution. I think the risk of passing a law that gets interpreted in a wildly different way than Congress' intent isn't that high, and in cases where it does happen, it's usually because culture has fundamentally changed over time. Congress' remedy of passing a new law, but one that will only cover future cases, is a fair trade off, I think. And in cases where there's a big screw-up, I'd expect it would get noticed fairly quickly once cases start hitting the courts, so Congress would have the opportunity to fix things, but only have a short window of time where unintended consequences happen.
  - FactolSarin 6y ago
    It actually depends on the judge whether the lawmaker has a say in it. Traditionally, most judges looked to the legislature for this kind of thing, but that type of judge has been in rapid decline over the last few decades. Let's take an example. Imagine a municipality wanted to pass an anti-electric scooter law. So they pass a law that bans "electric scooters, electric bicycles, and other such electric motor powered conveyances not generally used by handicapped people" from city sidewalks. Then one day someone gets arrested for driving a mobility scooter on the sidewalk (like, the three-wheeled things in Wal-Mart, not a Bird). Is this covered by the law? On one hand, it explicitly bans "scooters" and this is a scooter. On the other hand, it says it doesn't target conveyances generally used by the handicapped. So the court takes it up. Traditionally, a judge might look a the transcripts of the city council as evidence, and find that the line about handicapped vehicles was inserted by a city councilman who said he specifically wanted to allow mobility scooters. When he said this to the rest of the council, they unanimously agreed to add the exemption. So with this very clear evidence of legislative intent, the judge rules that mobility scooters are fine. Another judge is a textualist. This is an increasingly popular way to look at laws in judicial circles right now. A textualist doesn't care about what the city council meant only what the law says. The text of the law is the text of the law, period. Which sounds convincing, but the problem with that is two people can look at a law that's a bit vague or seems to conflict in two places, and come up with different readings. One textualist might say, sorry, mobility scooters are banned. Hell, the law is called the "Get Scooters Off Our Sidewalks Act." It's a dumb law, the judge says, but that's what it says. Another textualist looks at the same law and says, of course it doesn't mean mobility scooters. Any idiot can see that! The great thing about textualism to a judge is it basically boils down to "the law is what I think it is." And they can ignore the legislature's opinion. It gives judges much more power. Which is why it's popular with the kind of judges that like to overturn precedent like Scalia was.
- michaelt 6y ago
  > Still, it seems weird that Congress wouldn't get a say in determining what their own bills mean when there's a dispute. Ah yes, rule by Humpty Dumpty, where you don't know what the words they used mean until they tell you, and words mean what they choose them to mean, neither more nor less. If it were a law passed by the current congress, then maybe they would have some insight into their own intentions. But I don't see that the congress of 2020 is any better informed about what the congress of 1909 intended than you or I. And even under the same congress the idea a law could have a secret meaning, passed by congress but defined only in their minds and unknowable to those under their rule, seems completely contrary to the idea of the rule of law.
- lilott8 6y ago
  To ruminate about this a bit, let's assume our Congress critters never change. So Congress passes law "X" during Congress "Y". It is now 50 years in the future. Who do we ask about the intent of the law? Do we ask the initiators, cosigners, committee, do we take a survey of the entire congress? I'm not trying to prove any point -- I'm genuinely interested in understanding how this could play out!

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.
alasdair_ 6y ago
>I guess I trust the Supreme Court more than I trust Congress It's quite a damning indictment of US-style democracy that people trust a small cabal of unelected lifetime appointees without any meaningful oversight, over a larger pool of democratically elected officials.
- Bud 6y ago
  A "cabal" is by definition a secret political clique or faction which is unknown to the outside world. It's therefore a big reach to call the Supreme Court a "cabal".
  - labster 6y ago
    Public knowledge of doesn't define a cabal, only the secrecy of its decisions and who it benefits. The Supreme Court hears arguments with no recordings allowed, then makes its decisions in secret. What do they have to hide? And the only thing we ever get from the Court is the hundreds of pages in reasoning as to why they made the decision.
    - cvoss 6y ago
      > The Supreme Court hears arguments with no recordings allowed This could not be further from the truth. Complete audio recordings and transcripts dating back to 1955 are available on oyez.org, the more recent of which are likewise available on the Court's own website. During non-pandemic operation, the Court hearings are open to the public. For the cases argued during the pandemic shutdown, the hearings were, in fact, livestreamed. You can hear the justices trying on different lines of reasoning for size during these arguments. So in a very real sense, we get to see a lot of their decision-making process. Yes, they hold a private conference at which some discussion and the vote takes place. I wouldn't have it any other way. I don't want any of the justices to face social pressure in that moment. > hundreds of pages in reasoning as to why they made the decision This reads as an argument against the position that the Court is secretive.
- lr4444lr 6y ago
  The court is supposed to be exactly as you describe as a counterweight to legislators affected by vicissitudes of an electorate every 2 or 6 years. This is a feature, not a bug, of the American republic.
veridies 6y ago
> Still, it seems weird that Congress wouldn't get a say in determining what their own bills mean when there's a dispute. That's true, although you might argue that Congress should be clearer when they write their laws to begin with.
- smegger001 6y ago
  Require simple easily parsable English and as little ambiguity as possible. and then well define every term and phrase. include commenting much like code in the law it self. Along with a version history and changelog for with reasons given for each change. But we live a the world of common law tradition in the US. and law unfortunately or not does not behave like code.
kelnos 6y ago
> Still, it seems weird that Congress wouldn't get a say in determining what their own bills mean when there's a dispute. That's an interesting point that has me thinking. My feeling on this is that this is actually as designed. Congress' job is to pass laws after writing them in whatever way they deem prudent. But Congress doesn't really have an interest in the enforcement of those laws, up until the point their constituents come to them and say "hey, this law y'all passed, it isn't really working out... do something to make it better". And if there's a dispute as to the enforcement of those laws, an independent third party (the judiciary) mediates and decides, as seems appropriate. But, again, Congress doesn't get involved there, because it's the executive's job to actually apply the law. If Congress does get a say in interpretation, that means they could change their minds on existing law as political winds change, without going through the proper process of passing new legislation. They shouldn't get to do that, especially not for laws that are already on the books. That would amount to the power to write ex post facto laws, which are considered such a bad idea that they're expressly forbidden by the US Constitution. I think the risk of passing a law that gets interpreted in a wildly different way than Congress' intent isn't that high, and in cases where it does happen, it's usually because culture has fundamentally changed over time. Congress' remedy of passing a new law, but one that will only cover future cases, is a fair trade off, I think. And in cases where there's a big screw-up, I'd expect it would get noticed fairly quickly once cases start hitting the courts, so Congress would have the opportunity to fix things, but only have a short window of time where unintended consequences happen.
- FactolSarin 6y ago
  It actually depends on the judge whether the lawmaker has a say in it. Traditionally, most judges looked to the legislature for this kind of thing, but that type of judge has been in rapid decline over the last few decades. Let's take an example. Imagine a municipality wanted to pass an anti-electric scooter law. So they pass a law that bans "electric scooters, electric bicycles, and other such electric motor powered conveyances not generally used by handicapped people" from city sidewalks. Then one day someone gets arrested for driving a mobility scooter on the sidewalk (like, the three-wheeled things in Wal-Mart, not a Bird). Is this covered by the law? On one hand, it explicitly bans "scooters" and this is a scooter. On the other hand, it says it doesn't target conveyances generally used by the handicapped. So the court takes it up. Traditionally, a judge might look a the transcripts of the city council as evidence, and find that the line about handicapped vehicles was inserted by a city councilman who said he specifically wanted to allow mobility scooters. When he said this to the rest of the council, they unanimously agreed to add the exemption. So with this very clear evidence of legislative intent, the judge rules that mobility scooters are fine. Another judge is a textualist. This is an increasingly popular way to look at laws in judicial circles right now. A textualist doesn't care about what the city council meant only what the law says. The text of the law is the text of the law, period. Which sounds convincing, but the problem with that is two people can look at a law that's a bit vague or seems to conflict in two places, and come up with different readings. One textualist might say, sorry, mobility scooters are banned. Hell, the law is called the "Get Scooters Off Our Sidewalks Act." It's a dumb law, the judge says, but that's what it says. Another textualist looks at the same law and says, of course it doesn't mean mobility scooters. Any idiot can see that! The great thing about textualism to a judge is it basically boils down to "the law is what I think it is." And they can ignore the legislature's opinion. It gives judges much more power. Which is why it's popular with the kind of judges that like to overturn precedent like Scalia was.
michaelt 6y ago
> Still, it seems weird that Congress wouldn't get a say in determining what their own bills mean when there's a dispute. Ah yes, rule by Humpty Dumpty, where you don't know what the words they used mean until they tell you, and words mean what they choose them to mean, neither more nor less. If it were a law passed by the current congress, then maybe they would have some insight into their own intentions. But I don't see that the congress of 2020 is any better informed about what the congress of 1909 intended than you or I. And even under the same congress the idea a law could have a secret meaning, passed by congress but defined only in their minds and unknowable to those under their rule, seems completely contrary to the idea of the rule of law.
lilott8 6y ago
To ruminate about this a bit, let's assume our Congress critters never change. So Congress passes law "X" during Congress "Y". It is now 50 years in the future. Who do we ask about the intent of the law? Do we ask the initiators, cosigners, committee, do we take a survey of the entire congress? I'm not trying to prove any point -- I'm genuinely interested in understanding how this could play out!