Comments on: Analysis: Hamdan and a few minutes in the Senate http://www.scotusblog.com/2006/03/analysis-hamdan-and-a-few-minutes-in-the-senate/ The Supreme Court of the United States blog Tue, 14 Feb 2012 20:42:12 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Steve M http://www.scotusblog.com/2006/03/analysis-hamdan-and-a-few-minutes-in-the-senate/#comment-9146 Steve M Tue, 28 Mar 2006 14:37:07 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-hamdan-and-a-few-minutes-in-the-senate/#comment-9146 This is a very serious matter. If materials other than live debate are always followed by a bullet in the Congressional Record, and no bullet appears after this non-live debate, that does not change the fact that Sens. Kyl and Graham would know the colloquy was not live. To argue to the court that "debate is presumed to be live if there is no bullet," while knowing that the bullet was improperly omitted (whether inadvertently or otherwise), walks the line of an attempted fraud on the court, in my estimation. This is a very serious matter.

If materials other than live debate are always followed by a bullet in the Congressional Record, and no bullet appears after this non-live debate, that does not change the fact that Sens. Kyl and Graham would know the colloquy was not live.

To argue to the court that “debate is presumed to be live if there is no bullet,” while knowing that the bullet was improperly omitted (whether inadvertently or otherwise), walks the line of an attempted fraud on the court, in my estimation.

]]> By: D.E. http://www.scotusblog.com/2006/03/analysis-hamdan-and-a-few-minutes-in-the-senate/#comment-9145 D.E. Fri, 24 Mar 2006 21:06:39 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-hamdan-and-a-few-minutes-in-the-senate/#comment-9145 I rarely agree with Kent Scheidegger about anything, but it seems to me that this is the sort of legislative history that gives a lot of force to his and Justice Scalia's critiques. It's one thing when you have a committee report accompanying a bill, and Senators and Representatives have a chance to disagree with it and even to hold the bill up if there's some statement in there that is at odds with the actual legislative intent. But statements inserted after the fact? Come on! Even indulging the normal fictions about legislative bodies having some sort of collective intention, how could they possibly intend by their vote to adopt the views of Senators whose statements aren't even inserted into the record until after the vote? And the truth is, even if considered, this legislative history tells us nothing we don't already know. What I mean is, any fool can see that they didn't have the votes to put in an explicit provision on retroactivity going in EITHER direction; conservatives would have preferred a provision that the bill applied to all pending cases; liberals would have preferred a provision that the bill applied only to cases yet to be filed. Neither side could get the language it wanted; the bill is silent. And what does the legislative "history" tell us? That each side wants the bill to be interpreted in accordance with the language that that side wanted but couldn't get put into the bill! Really informative! I rarely agree with Kent Scheidegger about anything, but it seems to me that this is the sort of legislative history that gives a lot of force to his and Justice Scalia’s critiques. It’s one thing when you have a committee report accompanying a bill, and Senators and Representatives have a chance to disagree with it and even to hold the bill up if there’s some statement in there that is at odds with the actual legislative intent.

But statements inserted after the fact? Come on! Even indulging the normal fictions about legislative bodies having some sort of collective intention, how could they possibly intend by their vote to adopt the views of Senators whose statements aren’t even inserted into the record until after the vote?

And the truth is, even if considered, this legislative history tells us nothing we don’t already know. What I mean is, any fool can see that they didn’t have the votes to put in an explicit provision on retroactivity going in EITHER direction; conservatives would have preferred a provision that the bill applied to all pending cases; liberals would have preferred a provision that the bill applied only to cases yet to be filed. Neither side could get the language it wanted; the bill is silent.

And what does the legislative “history” tell us? That each side wants the bill to be interpreted in accordance with the language that that side wanted but couldn’t get put into the bill! Really informative!

]]> By: Spencer Ervin http://www.scotusblog.com/2006/03/analysis-hamdan-and-a-few-minutes-in-the-senate/#comment-9144 Spencer Ervin Fri, 24 Mar 2006 20:03:38 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-hamdan-and-a-few-minutes-in-the-senate/#comment-9144 Two comments on Lyle Denniston's usual thorough report: 1. If the government prevails, should Senator Levin be impeached for incompetence? 2. A bit of Supreme Court history on the pertinence of Congressional intent: in the Railroad Reorganization Cases, 419 US 102 (1974) Congressman Brockman Adams (later Secretary of Transportation) filed an amicus brief and argued orally. Adams "informed" the Court that the Railroad Reorganization Act did not affect the availability of a remedy under the Tucker Act. In the Court's opinion Justice Brennan, having previously stated that statements by Congressmen after passage of an act were irrelevant, cited Adams's opinion to bolster the Court's decision (see footnote 19 and accompanying text). Two comments on Lyle Denniston’s usual thorough report:
1. If the government prevails, should Senator Levin be impeached for incompetence?
2. A bit of Supreme Court history on the pertinence of Congressional intent: in the Railroad Reorganization Cases, 419 US 102 (1974) Congressman Brockman Adams (later Secretary of Transportation) filed an amicus brief and argued orally. Adams “informed” the Court that the Railroad Reorganization Act did not affect the availability of a remedy under the Tucker Act. In the Court’s opinion Justice Brennan, having previously stated that statements by Congressmen after passage of an act were irrelevant, cited Adams’s opinion to bolster the Court’s decision (see footnote 19 and accompanying text).

]]> By: Kent Scheidegger http://www.scotusblog.com/2006/03/analysis-hamdan-and-a-few-minutes-in-the-senate/#comment-9143 Kent Scheidegger Fri, 24 Mar 2006 18:43:23 +0000 http://www.scotusblog.com/wp/uncategorized/analysis-hamdan-and-a-few-minutes-in-the-senate/#comment-9143 For more on this, see pages 12-16 of the <a href="http://www.cjlf.org/briefs/Hamdan.pdf" rel="nofollow">CJLF Brief</a> The fact that members of Congress routinely pack the record with statements intended to influence courts rather than their colleagues warrants a skeptical view of legislative history. Even when words are actually spoken on the floor, they are often spoken to an empty chamber. That is not to say that legislative history is worthless, but it should not be treated as the equivalent of the statutory language. For more on this, see pages 12-16 of the CJLF Brief

The fact that members of Congress routinely pack the record with statements intended to influence courts rather than their colleagues warrants a skeptical view of legislative history. Even when words are actually spoken on the floor, they are often spoken to an empty chamber. That is not to say that legislative history is worthless, but it should not be treated as the equivalent of the statutory language.

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