Y HN SearchHacker News Search

new|comments|top|jobs

loading thread…

4 ms·

> Congress's silence becomes de-facto acceptance. Congress choosing to not do oversight becomes a de-factor repeal of the law. Yes, but why is that surprising?

by rayiner 1y ago

> Congress's silence becomes de-facto acceptance. Congress choosing to not do oversight becomes a de-factor repeal of the law. Yes, but why is that surprising? If a majority of any legislature doesn't care to see a law enforced, they could vote to repeal the law anyway. It's only because of the artifice of the filibuster in the U.S. system that there's a meaningful difference between those two things.

deleted 1y ago
[deleted]
softwaredoug 1y ago
I agree, I'm not sure it is surprising. (there would be tremendous oversight if the GOP was in power in Congress, and the President was a Dem)
- titzer 1y ago
  "oversight" Like the Benghazi and Hunter Biden investigations. In other words, sideshows.
  - walkabout 1y ago
    One nice thing about pointless witch hunts that go nowhere despite enormous efforts is that you can be sure a much-quicker process ending with something like actual consequences would ensue if there were real criminality to investigate. If all they can come up with is bullshit, things must be going ok, and if they’re committed to pursuing bullshit, odds are good they’d be thrilled to find something real to attack, if they could. Similar deal with Republican election complaints: if they don’t bother to investigate when they can, or find nothing substantial when they do, those concerns can be safely dismissed, which is nice.
galangalalgol 1y ago
The difference is that uneven enforcement is the tool of autocrats. Ignoring the law breeds contempt for it. Madison said requiring a supermajority for normal legislation would poison democracy, and I think the modern usage filibuster has proven him correct. I hope the GOP ditches the whole thing, not just for continuing resolutions. The senate will no longer have any excuses for abdicating its responsibilities. Thrashing laws are a small price to pay. I do wish judicial appointments still required a supermajority.
- rayiner 1y ago
  Picking and choosing which laws to enforce is baked into the concept of prosecutorial discretion. There is a reason the country’s prosecutor in chief is an elected position. It was understood to be a fundamentally political office even in Jefferson’s day: https://www.washingtonpost.com/opinions/2025/10/02/thomas-jefferson-aaron-burr-trump-comey/ https://www.washingtonpost.com/opinions/2025/10/02/thomas-je... I agree we should abolish the filibuster. It makes incremental changes difficult and fosters extremism.
  - estearum 1y ago
    That’s not true. Prosecutorial discretion exists because the executive can always say they’re just prioritizing their limited resources. They absolutely ARE NOT allowed to just say “I’m not enforcing this because I disagree with the law.” They also absolutely ARE NOT allowed to say “I’m enforcing a specific law against Party X but not against Party Y because I’m exercising discretion and I just like X.” That’s why dismissal for selective or vindictive prosecution exists. In principle, the Constitution is quite clear: the President SHALL take care that the laws be faithfully executed…
    - rayiner 1y ago
      > They absolutely ARE NOT allowed to just say “I’m not enforcing this because I disagree with the law.” Prosecutors are allowed to do that and do so all the time: https://www.aei.org/articles/viewpoint-on-not-enforcing-the-law/ https://www.aei.org/articles/viewpoint-on-not-enforcing-the-... (“Indeed, the ability of prosecutors to pick and choose among offenses is part of the constitutional structure of our government, as the Supreme Court has held too many times to recount. President Jefferson refused to enforce the Alien and Sedition Acts because he was convinced that they were unjust, and unconstitutional to boot. (In 1964 the Supreme Court vindicated him.) President Carter pardoned most selective service violators and halted further prosecutions. President Johnson’s Antitrust Division published antitrust guidelines that proclaimed a policy of not bringing suit against small mergers, even though the Supreme Court had held repeatedly that similar mergers were unlawful. Many state and local governments decline to prosecute small drug offenses, saving resources for bigger game.”).
JustExAWS 1y ago
In the Senate at least outside of a few carve outs, you really need 60 Senators to get anything passed not just a majority. The only reason the ACA ever passed was during the brief window they had 60 Senators
jjk166 1y ago
Because the whole point of laws is that they are not merely the whims of whoever currently sits on the throne. They provide guidance to people as to what they can reasonably expect will and will not be permitted, and the obligations of various people to eachother. Laws need to be changeable, because the world changes, but that process is purposefully made somewhat difficult so that only worthwhile changes are made, so that the changes can be explicitly communicated, and those who make the changes can be both advised before and held accountable after. If congress wants to see the laws changed, it has that power. Indeed, that's its entire reason for existing. The fact that it is not doing so, and instead ignoring laws on the books while leaving them there, is at best dereliction of duty, if not tacit acceptance that they don't actually have the votes to make those changes.
- rayiner 1y ago
  > Because the whole point of laws is that they are not merely the whims of whoever currently sits on the throne. That views laws as self-executing abstractions, which they are not. Laws necessarily are enforced by people. For that reason, in the U.S., law enforcement is typically assigned to elected officers and their delegates. From the beginning of the republic, enforcement of federal law has been a political activity: https://www.bu.edu/bulawreview/files/2017/04/MARKOWITZ.pdf https://www.bu.edu/bulawreview/files/2017/04/MARKOWITZ.pdf “While there was no direct conversation about the general power of prosecutorial discretion in the record of the framing of the Constitution, prosecutorial discretion was an uncontroversial power of the President from the start. President George Washington personally directed that numerous criminal and civil prosecutions be initiated and that others be halted. It has been observed that President Washington’s control over ‘prosecutions was wide- ranging, largely uncontested by Congress, and acknowledged—even expected—by the Supreme Court.’ In the earliest days of the Union, future Chief Justice John Marshall had the opportunity to opine on the nature of the President’s prosecutorial discretion authority in discussing the decision of the President to interrupt a prosecution of an individual accused of murder on board a British vessel and to instead deliver that person to British authorities. On the floor of Congress, then-Representative Marshall described the President’s prosecutorial discretion power as ‘an indubitable and a Constitutional power’ which permitted him alone to determine the ‘will of the nation’ in making decisions about when to pursue and when to forego prosecutions.”

estearum 1y ago
Did you read the article you posted? The entire thing is about allocation of finite resources. You can read the original Antitrust enforcement policy and see that it lays out a system of prioritization which (surprise surprise), prioritizes larger monopolization efforts over smaller ones. It does not say "we don't think small companies can behave monopolistically so we aren't enforcing the law on them." President Jefferson did not come out and say he's not enforcing ASA because he disagreed with them. Instead, he (secretly) wrote a memo against them as VP, then as President let them expire and pardoned everyone convicted under them. I will reiterate the plain language of the United States Constitution: [the President] SHALL take care that the laws be faithfully executed. SHALL does not mean MAY or AT HIS DISCRETION or any such thing.
- rayiner 1y ago
  > President Jefferson did not come out and say he's not enforcing ASA because he disagreed with them. Instead, he (secretly) wrote a memo against them as VP, then as President let them expire and pardoned everyone convicted under them. He didn’t enforce the ASA because he disagreed with it, just like Jimmy Carter didn’t prosecute people for selective service violations because he disagreed with it. It wasn’t because the resources weren’t available to enforce those laws.
  - estearum 1y ago
    You actually can’t know what their motivations were — which is the point. For example, if Congress had appropriated funds specifically for doing those things, the executive would be obligated to do them, because it’d be unambiguous as to whether resources existed to do them. This is again an absolutely unambiguous consequence of Congress’s Constitutional control of spending and of the Take Care Clause. What you are describing is effectively a line-item veto, which doesn’t exist in the US. So far all the evidence you’ve posted is actually evidence of my argument, not yours.
    - rayiner 1y ago
      > You actually can’t know what their motivations were — which is the point. But we know the motivation because Jefferson wrote it down. It wasn’t resource management, it was opposition to the law on principle.
      - estearum 1y ago
        Why can't you find a record of him publicly saying so? If it's just an established check and balance in our system, why can't you produce evidence of him saying "I'm not enforcing this law because I disagree with it" in any forum in which he could be held accountable (or not accountable, per your theory) for that decision? Here's why: because it's not! Here's SCOTUS in Kendall v United States: > To contend that the obligations imposed on the President to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the Constitution, and is entirely inadmissible. > "This doctrine cannot receive the sanction of this Court. It would be vesting in the President a dispensing power which has no countenance for its support in any part of the Constitution, and is asserting a principle which, if carried out in its results to all cases falling within it, would be clothing the President with a power to control the legislation of Congress and paralyze the administration of justice." > The result of the cases of McIntire v. Wood and McCluny v. Silliman clearly is that the [court's authority to command an officer of the United States] to perform a specific act required by a law of the United States is within the scope of the judicial powers of the United States under the Constitution"

jjk166 1y ago
> That views laws as self-executing abstractions, which they are not. Laws necessarily are enforced by people. No it doesn't. The laws are statements of what people in power will do under particular circumstances. This view only makes sense if people are executing the laws. The moment you stop executing the laws, suddenly you don't have laws. Prosecutorial discretion is another beast entirely. Considering circumstances on a case by case basis is necessary for functional justice, as lawmakers can not possibly foresee all circumstances and even if they could the enforcers of laws have practical limits. A cop letting you off with a warning for speeding is discretion. It is not permission for you or anyone else to ignore the speed limit in the future. The law is still there, and you should expect to suffer the consequences if you break it. We don't need laws when they ask us to do something we'd want to do anyways. Laws exist for the sole purpose of getting people to do the things they would rather not do, or to prevent them from doing things they would prefer to do. If the law can be violated when it is convenient for the lawmaker, you do not live in a nation of laws.