Posted on 02/04/2002 11:41:47 AM PST by kattracks
The issue isn't that clause, it's whether the procedure for replacing the dead guy was implicitly the same as before. From the same clause:
The term of each member of the Commission in the initial membership of the Commission shall expire on the date such term would have expired as of September 30, 1994.
Still more language pointing to the procedures in place under the old act. Still more evidence that unless specified otherwise, the old statute, for this purpose, still controls because it was never specified otherwise. And there was ample opportunity to do so.
Neither side has a perfect case, but I like the government's chances.
Here is the rub. You are passing a law. You have the old law in front of you as well as the new law. The old law that deals with vacancy appointments is completely red lined. If any congress person or staff is even paying paying half attention to the changes they can clearly see they eliminated the vacancy appointment language from the bill.
It is much harder to argue for congressional intent when congress eliminates pre-exising language.
Your proposal is they certain things to be grandfathered. The problem with that as a construction method is what limit to you put to the concept that congress wanted to grandfather past language even though it removed that language ? Using that argument one could argue that no changes should go into affect.
Six years means six years only if you get the job normally. If you are replacing someone who did get the job normally, you are not guaranteed six years on your own.
This is so simple that I must conclude that you are a political bigot who sides with Judge Kessler, who is a card-carrying political bigot, rather than someone who is trying to figure this out logically. Kindly do NOT reply to this post. You are wasting my time and KimRob's bandwidth with your incessant and irrelevant babling.
Billybob
You know, I looked through the statute to find the definitions as they apply to the statute in order to see how the word "member" is defined. But I couldn't find them. Are the definitions to from the old statute to apply? If so, then the bill hasn't been completely red-lined, has it?
And even if it had, we've seen several places in the new statute where it is made clear that the rules and practices in place prior to passage of the new statute are to remain in place. So we know that there is at least some reliance on the tenets of the old statute.
I'm not trying to claim it's a slam-dunk for the government by any means. Obviously you and Kessler see it different than me and Billybob.
One thing is for certain, though--it's kind of interesting.
Six years means six years only if you get the job normally. If you are replacing someone who did get the job normally, you are not guaranteed six years on your own.
As far as concluding that I am a political bigot who is interested in wasting bandwith, I must cry foul and tell you I resent that. I never attacked you and I never attack anyone on here. I am proud to say I stood by FR by attending the DC rally at no small travel cost to myself.
Just because I believe in strict construction of the law makes me a bigot, an enemey ? Did you hold this same belief when strict construction was used in FL ?
Please explain.
Not exactly. I happen to agree that the facts and circumstances strongly indicated the intent was there to limit vacancy appointments, however it requires too much reading into the mind of congress for a conservative judge. Therefore, my original prediction is holding true and is likely to continue to hold true. Namely, the odd's of Berry's posistion prevailing are better than 50%. At the time I made this prediction, everyone on this board (except a few oldtimers) went ballistic (just like Billy is) and I resented it then as I do now. I reasoned this because all of the liberal judges will vote toward the result but the conservative judges will be burdened by having to violate strict construction.
There is a huge difference between being correct and getting judgement.
Some of the more hot headed folks here cannot fathom that someone can separate their personal desire of an outcome from their expectation of the likely desire.
For example, I really wanted the tax cuts in the stimulus bill to be passed but it isn't likely. Because of this some here will call me a bigot because I think they will not pass even though I wish they would.
I suspect he has a larger strategy in this that has nothing to do with whether he wins or not. It may be legal, it may be political, it may be both or he may be looking to trade the issue for something else. Who knows.
In fact the weakest legal link in all this is the appointment process itself may be illegal in that it confers the power of appointment, which is supposed to be solely an executive function to congress.
Actually that is not the issue. The issue is "When does a vacancy appointment end ?". The old language in the statute explicity provided that when a vacancy appointment was made the term of that member ends when the original term ended. The new language of the statute simply says a member's terms shall be 6 years. In light of congress eliminating the language regarding vacancy appointments should we still assume they meant for a vacancy appointment to be limited to the remaining term of the original appointee or do we go with the explicit language which simply says the term shall be 6 years.
Arguments for limiting a vacancy appointment to the original term include, tradition of this committee, tradition of other committees, apparently Pres Clinton's (who signed the new law) interpretation was for it to be limited, and the fact unusual results occur allowing persons to resign and have their terms extended an additonal 6 years while the controlling party is in office.
Arguments for not limiting to the original term is based on the clear meaning of the statute as written and the indication that there was congressional intent in that the original language was eliminated from a previous bill.
The descions will be made by both liberal and conservative minded judges. We know the liberal judge will look for a way to rule according to the desired outcome. However, the conservative judge will be loath to accept that he has to fix what congress needs to fix and will rule according to strict construction. This happens frequently when tax laws are apealed.
So, if my prediction is wrong I give 50 to JR , if I am right you give JR 50 and either way I must wear the badge as a political bigot ?
No matter how may times you repeat your argument it still lacks a factual and legal basis. Judge Kessler was politically biased in her decision. (I ammuse you've read her background and can understand that.)
If one assumes that you are not politically biased, then you are simply wrong, wrong, wrong, for your failure to do your homework. Have you bothered to read my national article on this subject that went up on the UPI wire last night, and was posted on FreeRepublic two hours later?
If you haven't, do so. You'll learn something. If you have read it and don't understand it, read it again. It's written in plain English, rather than lawyerese.
You're like a dog with a non-existent bone. Quit it. It's "silly" as Monty Python says.
Billybob
Ambiguity in the Law
The ambiguity results from:
Sloppy draftsmanship.
i.e. Lawmakers sometimes create contradictions within the law without realizing they are doing so.
Difficulty anticipating future developments
i.e. new inventions like computers & cell phones
Some laws are purposely kept vague in order to be able to attract enough votes to get a bill passed.
Example of Ambiguity in Federal Sentencing Enhancement Law
Federal statute provides for longer jail terms in situations in which "during and in relation to ..[a] drug trafficking crime," the defendant "uses... a firearm."
Three possible applications:
Defendant shoots somebody in process of taking drugs from them.
Defendant waives gun and threatens to shoot it if drug seller doesn’t exchange agreed upon drug for pre-established price.
Defendant, who didn’t have enough cash, offered to trade an unloaded firearm for cocaine.
Which of the above would be covered?
Using a literal interpretation of the statute a gun was "used" in all three situations.
On the other hand, "using a firearm" is commonly understood to mean use as a weapon rather than use as an item of barter.
Resolving Ambiguity in Enacted Law
Ambiguity in enacted law must ultimately be resolved by the Courts at the point in time where the constitution, statute, or regulation is applied in a specific case.
When courts apply statutory materials in specific cases, they may be called upon to:
Interpret the meaning of the statute/reg.
Determine if an administrative regulation is consistent with the agency’s statutory authority.
Determine if a statute or regulation is consistent with the constitution.
Alternative Approaches to Interpreting Statutes & Regulations
There are two major approaches:
Textual Analysis
Literalism
a.k.a. Plain meaning or Strict ConstructionContextual analysis
Legislative Intent
Literalism Plain meaning/Strict Construction
Interpret the statute to mean what it says.
Give words their literal dictionary meaning.
PROBLEMS with this approach:
Dictionary may provide more than one meaning for a word.
Meaning of word may have changed from what it was at time statute was written.
Document may be internally contradictory.
Literal interpretation may lead to result that appears to be clearly at odds with "framer’s intent."
Canons of Construction
Canons of construction are general principles that guide the courts in their interpretation of statutes.
ejusdem generis
express mention/implied exclusion
last antecedent doctrine
strictly construe criminal statutes and statutes in derogation of the common law
Ejusdem Generis
Latin for "of the same class"
Applied when a series of specific items is followed by a catchall phrase, such as "and others."
Courts should interpret the "and others" narrowly and apply it only to other items in the same class.
EXAMPLES:
Prohibition on outdoor sale of "perishables, such as food, drink, beverage and the like."
Mann Act prohibition against interstate transportation of "any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose"
Express Mention/Implied Exception
States that if some idea is not expressly state, it should be assumed that the legislature intended to exclude it.
EXAMPLE:
In 1800s Congress passed a law which prohibited the importation or migration of any alien...into the United States...under contract or agreement...to perform labor or service of any kind in the United States. Specific exceptions were made for professional actors, artists, lectures, and singers.
In 1892 U.S. S.Ct. had to decide if the law prohibited a local church from bringing in a resident alien pastor from England.
Last Antecedent Doctrine
Declares that modifying and qualifying words and phrases apply to the words and phrases immediately preceding them and not to those that are more remote.
Strict Construction of Criminal Statutes and Statutes in Derogation of the Common Law
In criminal law context "strict construction" means that any ambiguity should be resolved in favor of the defendant.
Statutes in derogation of the common law refers to those that conflict with or seek to change the common law. In this context strict construction means they should be interpreted is a way that minimizes the conflict and retains as much as possible of the common law.
Strict construction is applied in criminal law to protect defendants against punishment under a vague law.
Strict construction is applied in cases involving statutes in derogation of the common law in order to preserve as much of the common law as possible.
Smith v. United States, (U.S. S. Ct. 1993)
The case in which the US Supreme Court had to decide if "uses .. a fire arm" as it appears in the Federal Sentencing Enhancement Law applies to a defendant who used the gun in trade for cocaine.
It interpreted the statute in question literally and therefore
Upheld lower court decision giving Smith a longer sentence.
Contextual analysis
Usually used as "fall-back" when literalism approach does not resolve ambiguity.
With contextual analysis the judge looks to other parts of the same document for clues as to how to interpret ambiguous words.
Judge selects the interpretation that is most consistent with other parts of the document or with other similar laws.
Legislative Intent
When textual analysis fails to provide a clear answer, judges often shift their focus to trying to identify the "legislative intent."
In some cases judges will reject a textual interpretation in favor of one that they believe to be more consistent with the legislative intent. In other words they seek to interpret the law as it was meant to be written rather than as it was actually written.
An example of choosing legislative intent over textualism is found in The Church of the Holy Trinity v. United States (1892).
A majority of the justices found that the legislative history and the exceptions for artists and speakers showed that Congress only intended to prohibit the importation of cheap, unskilled labor--not clergy. It therefore allowed the importation of the pastor even though clergy were not excluded in the language of the statute.
Legislative History
Legislative history refers to background documents created during the process by which a bill becomes a law. These documents include:
Committee reports
Amendments accepted and rejected
Transcripts of floor debates
The two major problems with the legislative intent approach are:
How do you determine what someone’s true intent was, and
What do you do when you find that multiple participants had different intentions.
Who’s Intent?
With provision of the original constitution you have to consider not only the representatives to the constitutional convention, but also the members of the state legislatures who had to ratified it.
With constitutional amendments you have to consider the Congressmen who proposed it and the state state legislatures who ratified it.
With Acts of Congress you had to have at least 268 different people vote get it to passed.
Administrative regulations are often promulgated by multi-member commissions.
Determining Their Real Intent
Members of Congress often don't read and don't specifically vote on the language used in committee reports, etc.
Public statements may not always reflect true intent--they may just be "political cover."
In situations which the drafter’s couldn’t have foreseen, they couldn’t have formed an intent.
Weighting Conflicting Intents
Even if you could identify everyone’s intent, how do you reconcile the fact that different legislators may have intended different outcomes?
Literalism Plain meaning/Strict Construction
Interpret the statute to mean what it says.
Give words their literal dictionary meaning.
PROBLEMS with this approach:
Dictionary may provide more than one meaning for a word.
Meaning of word may have changed from what it was at time statute was written.
Document may be internally contradictory.
Literal interpretation may lead to result that appears to be clearly at odds with "framer’s intent."
Express Mention/Implied Exception
States that if some idea is not expressly state, it should be assumed that the legislature intended to exclude it.
Your first argument is based on agent/principal law. Is there a precedent where this has been used before to determine legislative intent ? If Congress only gives the president one option (a 6 year term) how does the president create another option when the law doesn't give him that power ?
Your second argument is one I accept. The idea the application of the rule results in absurdity. The problem I have with that is there is a built in balance against doing a mass resignation because it can be reciprocal in that any branch can do the same thig.
The third one just seems way off topic but it sounds nice.
What I find amazing is you didn;t adress the courts dislike in "fixing" poorly written statutes.
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