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Author Topic:   Scalia is a Scoundrel
JonF
Member (Idle past 256 days)
Posts: 6174
Joined: 06-23-2003


Message 91 of 108 (763087)
07-20-2015 2:51 PM
Reply to: Message 88 by ICANT
07-20-2015 2:06 PM


Re: how can the Supreme Court make an unconstitutional decision?
No part of the Constitution repeals the first part of that section, and no part repeals the rest of it which says:
quote:
but the Senate may propose or concur with Amendments as on other Bills.
You don't get to ignore that part of the constitution just because you don't like it.
The ACA started in the house, passed, was amended by the Senate per that article, passed, and the House (as is common) chose to let it go as it was.
Perfectly constitutional.
{ABE}
You say they can't insist.
Of course they can. They can insist that the amended bill be re-presented for a House vote, or a conference committee resolve the differences.
They chose not to.
{ABE 2}
Now please explain what the word 'ALL BILLS' mean if it does not mean 'ALL BILLS'.
It means "ALL BILLS". What does "the Senate may propose or concur with Amendments as on other Bills.
Edited by JonF, : No reason given.
Edited by JonF, : No reason given.

This message is a reply to:
 Message 88 by ICANT, posted 07-20-2015 2:06 PM ICANT has replied

Replies to this message:
 Message 93 by ICANT, posted 07-20-2015 2:58 PM JonF has replied

  
ICANT
Member (Idle past 116 days)
Posts: 6769
From: SSC
Joined: 03-12-2007


Message 92 of 108 (763088)
07-20-2015 2:51 PM
Reply to: Message 89 by NoNukes
07-20-2015 2:18 PM


Re: how can the Supreme Court make an unconstitutional decision?
Hi NoNukes,
Read my message below the one I am replying too.
God Bless,

"John 5:39 (KJS) Search the scriptures; for in them ye think ye have eternal life: and they are they which testify of me."

This message is a reply to:
 Message 89 by NoNukes, posted 07-20-2015 2:18 PM NoNukes has seen this message but not replied

  
ICANT
Member (Idle past 116 days)
Posts: 6769
From: SSC
Joined: 03-12-2007


Message 93 of 108 (763089)
07-20-2015 2:58 PM
Reply to: Message 91 by JonF
07-20-2015 2:51 PM


Re: how can the Supreme Court make an unconstitutional decision?
Hi JonF,
JonF writes:
The ACA started in the house
As I said in the message you replied too.
HR 3962 was started in the House.
H.R. 3590 was started in the Senate.
Reid could not get enough support to pass the House Bill but Pelosi was able to get enough votes in the House to pass the Senate Bill.
The Senate Bill H.R. 3590 became the law.
End of discussion.
God Bless,

"John 5:39 (KJS) Search the scriptures; for in them ye think ye have eternal life: and they are they which testify of me."

This message is a reply to:
 Message 91 by JonF, posted 07-20-2015 2:51 PM JonF has replied

Replies to this message:
 Message 95 by JonF, posted 07-20-2015 3:05 PM ICANT has not replied
 Message 96 by Dr Adequate, posted 07-20-2015 4:43 PM ICANT has not replied

  
JonF
Member (Idle past 256 days)
Posts: 6174
Joined: 06-23-2003


(4)
Message 94 of 108 (763090)
07-20-2015 3:03 PM
Reply to: Message 90 by ICANT
07-20-2015 2:43 PM


Re: how can the Supreme Court make an unconstitutional decision?
The Affordable Care Act (H.R. 3590) originated in the Senate.
H.R. means House of Representatives. Any bill labeled HR started in the House of Representatives.
The Affordable Health Care for America Act House bill", HR 3962 originated in the House.
Harry Reid could not get enough support in the Senate to pass the House bill HR 3962.
Cool. So what?
Nancy Pelosi having a democratic majority in the House mustered enough votes to pass the Senate Bill H.R. 3590.
So the Senate Bill H.R. 3590 is the one that became law.
Yup. All Constitutional. Except it's the Senate version of HR 3590, which by definition did not originate in the Senate.
So how do you determine the bill H.R. 3590 originated in the House?
Easy-peasy. It was named:
H.R. 3590. A bill that originated in the Senate would be S. 3590.

This message is a reply to:
 Message 90 by ICANT, posted 07-20-2015 2:43 PM ICANT has not replied

Replies to this message:
 Message 98 by herebedragons, posted 07-20-2015 8:57 PM JonF has not replied

  
JonF
Member (Idle past 256 days)
Posts: 6174
Joined: 06-23-2003


(2)
Message 95 of 108 (763091)
07-20-2015 3:05 PM
Reply to: Message 93 by ICANT
07-20-2015 2:58 PM


Re: how can the Supreme Court make an unconstitutional decision?
HR 3962 was started in the House.
Yes.
H.R. 3590 was started in the Senate.
No. H.R. 3590 as passed by the House was amended in the Senate, as explicitly allowed by the Constitution. Details matter, especially in law. Saying that H.R. 3590 started in the Senate is flat-out false: the name itself tells you that.

This message is a reply to:
 Message 93 by ICANT, posted 07-20-2015 2:58 PM ICANT has not replied

  
Dr Adequate
Member (Idle past 373 days)
Posts: 16113
Joined: 07-20-2006


(1)
Message 96 of 108 (763094)
07-20-2015 4:43 PM
Reply to: Message 93 by ICANT
07-20-2015 2:58 PM


Re: how can the Supreme Court make an unconstitutional decision?
As I said in the message you replied too.
HR 3962 was started in the House.
H.R. 3590 was started in the Senate.
Reid could not get enough support to pass the House Bill but Pelosi was able to get enough votes in the House to pass the Senate Bill.
The Senate Bill H.R. 3590 became the law.
End of discussion.
Well, we could still discuss what you think H stands for.

This message is a reply to:
 Message 93 by ICANT, posted 07-20-2015 2:58 PM ICANT has not replied

  
ThinAirDesigns
Member (Idle past 2462 days)
Posts: 564
Joined: 02-12-2015


(1)
Message 97 of 108 (763098)
07-20-2015 8:32 PM
Reply to: Message 47 by foreveryoung
07-19-2015 12:46 PM


Re: how can the Supreme Court make an unconstitutional decision?
foreveryoung writes:
So the senate or the president or the boy scouts can write revenue raising bills if SCOTUS says its constitutional?
According to the constitution, what the SCOTUS says is constitutional IS constitutional. Doesn't mean that it's right, or moral, but merely constitutional. Some body has to have the final word on what is constitutional and what is not and the constitution makes the SCOTUS the final arbiter. Just the way it is.
JB

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herebedragons
Member (Idle past 946 days)
Posts: 1517
From: Michigan
Joined: 11-22-2009


Message 98 of 108 (763099)
07-20-2015 8:57 PM
Reply to: Message 94 by JonF
07-20-2015 3:03 PM


Re: how can the Supreme Court make an unconstitutional decision?
H.R. means House of Representatives. Any bill labeled HR started in the House of Representatives.
I found this site which shows the version of HR3590 that was introduced in Sept, 2009. Yes, clearly it originated in the House. But, it's original version was a bill intended
quote:
To amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes.
with the short title of "Service Members Home Ownership Tax Act of 2009."
The Bill was passed by the House and placed on the Senate calendar in Oct. 2009.
The Senate then appears to have "amended" the Bill and the amended version is found here (the 7 versions of the bill are available from a drop down menu on the right side of the page). This "amendment" bears no resemblance to the original bill and was intended as a substitution
quote:
Purpose: In the nature of a substitute.
IN THE SENATE OF THE UNITED STATES--111th Cong., 1st Sess.
H. R. 3590
To amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes.
November 19, 2009
Ordered to lie on the table and to be printed
Amendment in the nature of a substitute intended to be proposed by Mr. REID (for himself, Mr. BAUCUS, Mr. DODD, and Mr. HARKIN)
Viz:
Strike all after the enacting clause and insert the following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the ‘Patient Protection and Affordable Care Act’.
(b) Table of Contents- The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
...
I had not heard this claim that the ACA had been initiated in the Senate before, and maybe I don't really understand the significance or legality (or constitutionality) of the issue, but it seems a bit shady to "amend" a Bill by deleting it in its entirety and replacing it with something completely different. Also note that the Senate version was dated Nov. 2009 - only a month after it was put on the calendar. The text of the substitution must have been drafted before the bill was even placed on the Senate calendar (the rate government moves it would have taken at least a month just to cut-n-paste the text into the body of the bill). So it does appear that HR3590, as passed DID originate in the Senate, but was hidden or "substituted" for a bill that had originated in the House.
I had a similar complaint when the grey wolf was de-listed. The problem was that the rider to remove the wolf from the endangered species list was included (buried) in a budget bill - at a time where passage of the budget was extremely time sensitive, threatening government shut down. Even if there was objections to that rider, it was not going to be addressed because of the urgency of the budget bill. While it may be perfectly legal, it takes advantage of loopholes to push forward an agenda.
It seems to me that although it may be "constitutional" it seems rather unethical. Its a shell game.
What do you think?
HBD

Whoever calls me ignorant shares my own opinion. Sorrowfully and tacitly I recognize my ignorance, when I consider how much I lack of what my mind in its craving for knowledge is sighing for... I console myself with the consideration that this belongs to our common nature. - Francesco Petrarca
"Nothing is easier than to persuade people who want to be persuaded and already believe." - another Petrarca gem.
Ignorance is a most formidable opponent rivaled only by arrogance; but when the two join forces, one is all but invincible.

This message is a reply to:
 Message 94 by JonF, posted 07-20-2015 3:03 PM JonF has not replied

Replies to this message:
 Message 99 by jar, posted 07-20-2015 9:10 PM herebedragons has not replied
 Message 100 by Dr Adequate, posted 07-20-2015 9:17 PM herebedragons has not replied
 Message 101 by NoNukes, posted 07-20-2015 9:25 PM herebedragons has not replied

  
jar
Member
Posts: 34065
From: Texas!!
Joined: 04-20-2004
Member Rating: 4.0


(1)
Message 99 of 108 (763100)
07-20-2015 9:10 PM
Reply to: Message 98 by herebedragons
07-20-2015 8:57 PM


Re: how can the Supreme Court make an unconstitutional decision?
It seems to me that although it may be "constitutional" it seems rather unethical. Its a shell game.
I'm not sure unethical is applicable but it definitely is a shell game and has been going on as long as I have been following Congress so well over a half century. Unfortunately it is not a tactic most folk are aware of; yet another example of the failure of our educational system. It's stuff like this, the boring details of how the US governs itself that we really need to be teaching the kids.

Anyone so limited that they can only spell a word one way is severely handicapped!

This message is a reply to:
 Message 98 by herebedragons, posted 07-20-2015 8:57 PM herebedragons has not replied

  
Dr Adequate
Member (Idle past 373 days)
Posts: 16113
Joined: 07-20-2006


Message 100 of 108 (763101)
07-20-2015 9:17 PM
Reply to: Message 98 by herebedragons
07-20-2015 8:57 PM


Re: how can the Supreme Court make an unconstitutional decision?
It seems to me that although it may be "constitutional" it seems rather unethical. Its a shell game.
I'm not sure which code of ethics it breaches. In an actual shell game, someone goes home without their pants, and this is a problem. Substitute amendments are just a technical convenience for legislators.

This message is a reply to:
 Message 98 by herebedragons, posted 07-20-2015 8:57 PM herebedragons has not replied

  
NoNukes
Inactive Member


Message 101 of 108 (763102)
07-20-2015 9:25 PM
Reply to: Message 98 by herebedragons
07-20-2015 8:57 PM


Re: how can the Supreme Court make an unconstitutional decision?
It seems to me that although it may be "constitutional" it seems rather unethical. Its a shell game.
What do you think?
Please describe the ethical question involved. Some thing are wrong because they are inherently bad, while other things are wrong because they are prohibited by law. In this case, the result was an expedited entry of a bill in a situation where the Democrats had control of both chambers but were still subject to procedural tactics by the Republicans to prevent things from getting done quickly. Exactly which tactics were unethical in that situation?
Given that the practice has been used before by Republicans and Democrats alike, it seems instead to be a mere procedural maneuver. Exactly what evil was wrought by the tactic?
So it does appear that HR3590, as passed DID originate in the Senate, but was hidden or "substituted" for a bill that had originated in the House.
In what sense was the bill 'hidden'?

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

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NoNukes
Inactive Member


Message 102 of 108 (763103)
07-21-2015 12:04 AM
Reply to: Message 25 by Dr Adequate
07-18-2015 1:39 AM


Well, this is disingenuous. It would be one thing to insist that these four words must take precedence over the legislative intent, but it is quite another thing to insist that they must express the legislative intent.
In defense of Scalia, I will suggest here that he probably had no intention of opining on what Congress intended. I spent some time this afternoon looking at Scalia's writing on the topic, and it is pretty clear that Scalia is completely disdainful of the use of legislative intent. He has been consistently dubious about using it. In fact, he sometimes takes the trouble of castigating his colleagues for referring to the legislative history even when he agrees with the Court's decision. Given Scalia's position on legislative intent, it was inevitable that he reach the conclusion he reached.
Given that context, I would interpret Scalia's remarks to be directed to the plain text of the statute, and accordingly I would suggest that his remarks are not scoundrel like.
On the other hand, Scalia is far less hesitant about looking at original intent and historical context when it comes to the constitution. One might argue that to be an inconsistency, but of a lesser magnitude.
ABE:
The link below is to an article that I think does show the scoundrel that Scalia is. The article takes Scalia to task for his shoddy defense of his 'no legislative history' policy. I found the reading quite entertaining.
The New Republic
quote:
OMITTING CONTRARY evidence turns out to be Scalia and Garner’s favorite rhetorical device. Repeatedly they cite cases (both state and federal) as exemplars either of textual originalism or of a disreputable rejection of it, while ignoring critical passages that show the judges neither ignoring text nor tethered to textual originalism. Thus they applaud White City Shopping Center, LP v. PR Restaurants, LLC, a decision that held that the word sandwiches in a lease did not include burritos, tacos, or quesadillas, because Merriam-Webster’s dictionary defines sandwich as two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them. Scalia and Garner stop there, as if that dictionary reference were the court’s entire decision, thus confirming the use of the dictionary as a guide to the meaning of legal documents. But the court had not stopped with the dictionary.
Ignoring contrary evidence and declaring himself correct. Ain't that just like a wingnut?
Edited by NoNukes, : No reason given.
Edited by NoNukes, : No reason given.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 25 by Dr Adequate, posted 07-18-2015 1:39 AM Dr Adequate has replied

Replies to this message:
 Message 103 by Dr Adequate, posted 07-21-2015 12:29 AM NoNukes has replied
 Message 104 by Percy, posted 07-21-2015 6:52 AM NoNukes has replied

  
Dr Adequate
Member (Idle past 373 days)
Posts: 16113
Joined: 07-20-2006


Message 103 of 108 (763104)
07-21-2015 12:29 AM
Reply to: Message 102 by NoNukes
07-21-2015 12:04 AM


I think not. He says "And it is hard to come up with a reason to include the words "by the State" other than the purpose of limiting credits to state Exchanges." This is an argument about the legislative intent: not the bare meaning of the clause, but the reason and the purpose behind it. Now, we know that the bill had no such purpose as he pretends and that the reason was that someone was careless in drafting it --- and Scalia knows this too.

This message is a reply to:
 Message 102 by NoNukes, posted 07-21-2015 12:04 AM NoNukes has replied

Replies to this message:
 Message 105 by NoNukes, posted 07-21-2015 3:56 PM Dr Adequate has replied

  
Percy
Member
Posts: 22623
From: New Hampshire
Joined: 12-23-2000
Member Rating: 3.6


Message 104 of 108 (763107)
07-21-2015 6:52 AM
Reply to: Message 102 by NoNukes
07-21-2015 12:04 AM


AbE: It occurs to me later that I missed that there's probably a clear distinction between "overall statutory scheme" and "legislative intent". The former only deals with what a bill says, while the latter includes not just the bill but also the prior legislative process and debate. I leave what follows unchanged, but what it should have said is that I think ignoring legislative intent is highly questionable, but it doesn't make Scalia an idiot. But taking the "overall statutory
scheme" into account for bills he likes and not for other bills he doesn't like does make him a scoundrel.
NoNukes writes:
In defense of Scalia, I will suggest here that he probably had no intention of opining on what Congress intended. I spent some time this afternoon looking at Scalia's writing on the topic, and it is pretty clear that Scalia is completely disdainful of the use of legislative intent. He has been consistently dubious about using it. In fact, he sometimes takes the trouble of castigating his colleagues for referring to the legislative history even when he agrees with the Court's decision. Given Scalia's position on legislative intent, it was inevitable that he reach the conclusion he reached.
When I introduced this thread in Message 1 I quoted Scalia quoting another case that said it must be kept in mind the "fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."
I interpreted "overall statutory scheme" as the overall legislative intent of a bill, and I figured it referred to how to address a very common situation arising when a bill is redrafted, that not every passage that needs to be changed (say, after debate strikes a compromise) is changed or changed properly, which made it seem that Scalia had argued that legislative intent was important, especially given how often the wording of bills must be ambiguous, contradictory or in some way flawed. What's more, that seems the only reasonable position, because people aren't perfect and never will be perfect, and these bills can be massive. HR 3590 is 974 pages (see this PDF of the Affordable Care Act - the portion recently before the Supreme Court is on page 110).
What's more, since there were no federal exchanges in the original version of the bill, only state exchanges, having places in the bill that were missed or improperly updated when later revisions were made is precisely the kind of error one would expect.
If Scalia's legal philosophy ignores legislative intent then he's less a scoundrel and more an idiot.
--Percy
Edited by Percy, : AbE.

This message is a reply to:
 Message 102 by NoNukes, posted 07-21-2015 12:04 AM NoNukes has replied

Replies to this message:
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NoNukes
Inactive Member


Message 105 of 108 (763156)
07-21-2015 3:56 PM
Reply to: Message 103 by Dr Adequate
07-21-2015 12:29 AM


I think not. He says "And it is hard to come up with a reason to include the words "by the State" other than the purpose of limiting credits to state Exchanges."
I think given Scalia's history that parsing the sentence to this extent is not justified. I understand your argument, but I think Scalia is sticking to his policy simply refusing to consider the 'legislative history' by which I mean the writings and speeches given by Congressmen during the process of introducing and enacting the bill. If there is any intent or purpose to be gathered, Scalia insists on gathering it from the text alone.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 103 by Dr Adequate, posted 07-21-2015 12:29 AM Dr Adequate has replied

Replies to this message:
 Message 107 by Dr Adequate, posted 07-21-2015 4:34 PM NoNukes has replied

  
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