Comments on: First court action on new detainee dispute

By: Kent Scheidegger

Kent Scheidegger — Fri, 06 Jan 2006 18:14:51 +0000

The premise of Joe’s argument is that a member of Congress who agrees to delete language stating X thereby expresses an intent that the law should be the converse of X. Nope. The member only agrees that the statute will not say X, and the law will be what it would have been if that language had never been there in the first place. When we speak of legislative intent, it is important to remember that Congress has 535 intents, and that coming to agreement sometimes means agreeing not to specify a particular point either way. If Senator Levin really had the agreement of his colleagues that the statute would not apply to pending cases, he would have inserted language to that effect. The fact that he didn’t indicates that he couldn’t, and that is just as strong an indication as the fact that the earlier language was deleted. The only collective intent that can be discerned from this history is an intent to leave it to the default rule and then argue in court about what that is.

By: Joe

Joe — Thu, 05 Jan 2006 20:20:33 +0000

A key phrase in the cited case seems to me to be: “Here, Congress has amended the distribution of appellate jurisdiction in the Territory of Guam without expressing an intent as to the effective date of its new statute.”

The “intent” argument is major here. If your statutory interpretation rule is so clear, it is unclear why the administration repeatedly tried to redundantly get it in, and failed each time. As noted, a pure textualist reading might lead to different results.

But, a page of recent history is worth something here. The matter was actually dealt with repeatedly in the drafting and the President’s interpretation rejected. The default rule per that case was in place because no intent suggested it should not be followed. Things are different here.

Senators have some reason to expect that phrasings they reject should not be after the fact said to be implied anyway. And, the “take effect” language should be read accordingly. Clearly, the President didn’t think the default rule was so clear.

He wants two bites of the apple. Bad pool. I’d add as an aside that constitutional doubt as to habeas stripping helps Levin’s case. Anyway, his case might not be strong enough, but I reaffirm my belief that it is not really “weak” at all.

By: Kent Scheidegger

Kent Scheidegger — Thu, 05 Jan 2006 17:10:18 +0000

The final outcome of the negotiation was that Congress made no statement either way on application to pending cases. While Senator Levin succeeded in getting express application language removed, he did not get express nonapplication language inserted. His position that the “take effect” language resolves that issue is not correct. Hence, the default rule applies under Landgraf. For jurisdictional changes, the default rule is that a new statute does apply to pending cases. This is settled law. See the Ninth Circuit’s recent decision in Santos v. Guam, linked in my second comment in this thread.

In negotiating statutory language, members of Congress should be able to depend on the courts following the rules of construction they have stated in past cases. There is nothing “Alice in Wonderland” about that. Quite the contrary.

By: Joe

Joe — Thu, 05 Jan 2006 01:17:30 +0000

Justice Scalia might not care, but other justices do seem to take into account some of the legislative process and intent Sen. Levin addresses here.

Given the facts Sen. Levin suggests, and the serious amount of debate and effort gone into the final version of the amendment, I’m unsure how “weak” his claim is. Levin might exaggerate Bush’s weakness here, but the comment seems to go to the other extreme.

Levin seems to be right on intent here. If we can just ignore this, the final result has an “Alice in Wonderland” feel to it that seems troubling to me.

By: Kent Scheidegger

Kent Scheidegger — Wed, 04 Jan 2006 23:44:55 +0000

I appear to have messed up the link. Trying again.

By: Kent Scheidegger

Kent Scheidegger — Wed, 04 Jan 2006 23:37:58 +0000

Senator Levin is just plain wrong when he says "The Administration is just plain wrong...." The general rule is that statutes ousting jurisdiction apply to pending cases in the absence of express direction from Congress to the contrary. This rule has been applied in a host of cases from Reconstruction to last Tuesday. See Santos v. Guam (CA 9, Jan. 3, 2006). An argument can be (and no doubt will be) made that this statute does not apply to pending cases because of legislative history, the doctrine of constitutional doubt, or other factors. I expect the argument will be weak, from what I have seen so far, but some court might accept it. For Senator Levin to suggest that the government is out of line for arguing that the usual rule applies, however, is over the top.