Comment by kelnos | Hacker News Reader

Comment by kelnos | Hacker News Reader

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> 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.

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.

I think there's a difference, though. I'm fine with (and agree with) the idea of your example of looking back at the city council transcripts and finding that the intent was obvious, and going with that. But I think at least some of this thread is about the idea that the legislature could have some sort of effective litigation or consultation power at the time a law is disputed.

At that point, it might be many years since the law was passed; its original authors could be retired or even dead. In that case, I don't think it's fair to allow the (current) legislative body a seat at the table, because they don't have the context to provide input on the original meaning, and would likely ignore that anyway and try to push their personal agenda.

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