Policy laundering | Hacker News Reader

Policy laundering

en.wikipedia.org

> At that time, Congress attempted to protect migratory birds by statutory law. However, both state and federal courts declared that law unconstitutional. Not to be denied, authorized parties subsequently negotiated and ratified a treaty with Canada to achieve the same purpose. Once the treaty was in place, Congress then passed the Migratory Bird Treaty Act of 1918 to enforce the treaty.[10] In Missouri v. Holland, the United States Supreme Court upheld that the new law was constitutional in order to support the treaty.

That doesn't make sense: how can the federal government (whose power is only that granted by the Constitution) agree to & be bound by a treaty which is unconstitutional?

The important feature here is that it was unconstitutional due to Article 10, which delegates all other powers not laid out to the states. If it were unconstitutional because of some other clause that'd be the end of it at least until a different interpretation of whatever clause came about. With Article 10 however it just means the federal government needed to find some clause that gave them the appropriate constitutional authority. It doesn't work for everything but it does work for a lot of stuff.

What wouldn't it work with? It sounds like any treaty can at all override a claim to states rights. The 10th amendment is thus absolutely meaningless because the set of all rights that are supposedly left to the states can be covered by a treaty.

It won't work with anything that is expressly forbidden in the constitution. Other than that currently it's pretty broad. There's a Harvard Law Review article [0] about the limits such as they are and does a better job than I ever could being professionals and actual lawyers.

[0] https://harvardlawreview.org/2014/01/limits-on-the-treaty-po...

That doesn't make sense: how can the federal government (whose power is only that granted by the Constitution) agree to & be bound by a treaty which is unconstitutional?

The treaty isn't unconstitutional, though.

The existing standard for constitutional review of treaties is that the things called for by a treaty are allowed unless the Constitution specifically forbids them. This is a much lower standard than the "forbidden unless the Constitution specifically authorizes it" applied to other acts of the federal government.

And since the original case revolved around states wanting to regulate in preference to Congress, and Article VI says treaties have supremacy over state law, the treaty-based bird regulations stood up to scrutiny, because the treaty itself was held to be permitted by the Constitution.

Also, in the modern day the original bird law might not have been struck down at all. The theoretical support for the law was in Congress' (specifically-enumerated) power to regulate interstate commerce, and rooted in the inherently state-line-crossing nature of the migrations. Interpretation of the interstate commerce power has swung back and forth like a pendulum several times over the history of the US. At the time of the original bird law it was being interpreted extremely narrowly; today it is typically read more broadly.

> The existing standard for constitutional review of treaties is that the things called for by a treaty are allowed unless the Constitution specifically forbids them.

That's a risible standard, though: it renders the Tenth Amendment a dead letter. It doesn't make any sense for the Constitution to explicitly reserve all powers not granted to the United States to the several states or people, and at the same time grant the United States the ability to collude with foreign powers in taking those powers from the states and/or people.

Yes, treaties are the supreme law of the land, but only if they are constitutional. The President & Senate could not enter a treaty which restores slavery, for example.

From what little I've read on Supreme Court jurisprudence it seems like the Commerce Clause has just gotten more and more broadly read over the years. When has it really swung back to more narrowly read in a significant way?

During John Marshall's tenure on the court, it was read broadly in favor of Congress.

But then we had the era of tortured readings of parts of the Constitution through which the Supreme Court basically tried to enforce a particular economic policy on the entire country. This was a time when progressive reformers were pushing for labor standards, bans on child labor, minimum wages and all the things we mostly take for granted today. And the Court hated that stuff philosophically, so they looked for ways to kill it. Sometimes the commerce clause would be read narrowly (if it could be used to strike down a federal regulation). Sometimes it would be read broadly but against the states (if it could strike down a state regulation). The Fourteenth Amendment was another popular choice of text at the time, with the Court reading it as having meant to establish not the equality before the law of black and white citizens, but rather a sanctity of contract and a condemnation of economic regulation beyond the wildest dreams of modern libertarians. This was the so-called "Lochner era" named after the keystone case of the Court's economic policy.

The swing back to broad Congressional regulatory power began with Franklin Roosevelt threatening to "pack" the Supreme Court with judges who would support him, leading the conservative members of the Court to realize they would lose no matter what and finally starting to allow some economic regulation to occur.

Then later in the 20th century the Court mostly stopped questioning assertions of the commerce power, except for some (in)famous flip-flops led by Scalia as he tried to find Commerce Clause justifications for striking down federal gun control while keeping federal drug prohibition.

since the 90's, starting with US v Lopez

Good question! It's a State's Rights thing: the federal government doesn't have arbitrary control over the states. The federal government can only force the states to adopt regulation if it's for a constitutionally-defined reason. In this case, using the Treaty Clause

There are thus no States's Rights. The states rights are subject to federal government conspiring with foreign powers to remove them.

I mean it's a pretty difficult path to take. You have to find a foreign government willing to make this treaty and take the same steps, you have to have control of the State department to negotiate, have to have the President sign off on the treaty, and get a 2/3rds super majority vote from the Senate. And the treaty has to be self-executing, meaning it doesn't require the nation to create additional legislation. The state's local laws would also have to directly contradict the treaty. Also, the next President could pull us out of the treaty unilaterally at any time.

Sources:

Introduction in https://harvardlawreview.org/2014/01/limits-on-the-treaty-po...

https://en.wikipedia.org/wiki/Supremacy_Clause

https://en.wikipedia.org/wiki/Commonwealth_Edison_Co._v._Mon...

Honestly, if the federal government wanted to usurp state's rights, there are much easier ways than this. The commerce clause gives a lot of power to Congress, and the federal government can often encourage the states to adopt legislation by making some federal funding to the states conditional on the exaction of certain regulations, though there are limits to that.

Short answer:

The federal government has a short list of "enumerated powers", and it can only do those things. (The list is in Article I, Section 8, and it's quite short. It's things like "establish[ing] Post Offices and Post Roads", or "provid[ing] and maintain[ing] a Navy". Regulating migratory birds isn't one of those things.)

It also has a list of things it can't do (take property without compensation, quarter soldiers in private homes, etc.). You can't violate these rules even in service of an enumerated power. However, regulating migratory birds also isn't one of those things.

So Congress can't regulate migratory birds, unless it finds some other clause that can be interpreted it allow it, but if it can, then it's fine. A the treaty power is another clause, so sure, you can do a lot of things that aren't enumerated powers (but that aren't prohibited!) by signings treaties. You could sign an arms control treaty that violates the second amendment, but any law implementing it would be unconstitutional and struck down out of hand. Similarly, any law implementing an "international libel treaty" would be nixed out of hand. But a Migratory Bird Treaty Act? Sure, why not?

The treaty power isn't limitless, and I think think modern courts are a bit more sceptical of it; I'm not sure Missouri v. Holland would be decided the same way today. On the other hand, the commerce clause and the "necessary and proper" clauses have been interpreted very loosely by modern courts, so I don't think anything would really change; Congress would just pass a law claiming to be regulating commerce due to the impact of migratory birds on interstate birdwatching tourism. :) (No sillier than the winning argument in Gonzales v. Raich!)

> A the treaty power is another clause, so sure, you can do a lot of things that aren't enumerated powers (but that aren't prohibited!) by signings treaties.

The Tenth Amendment says that anything not explicitly granted to the United States is reserved to the individual states or people: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. I.e., it prohibits any power it doesn't explicitly grant.

I think it's pretty obvious that the United States can't take power from the states simply by signing treaties with foreign powers, rather than being given those powers by the states and/or people.

> No sillier than the winning argument in Gonzales v. Raich!

Which was terribly bad law.

The Constitution has been null and void at least since the Civil War, so it doesn’t really matter.

Interesting that the "California effect" is mentioned and California is supposedly about to pass a very strict version of Net Neutrality.

This came from a comment in another thread. I wonder if someone has modeled these kinds of intra-HN graphs.

Heh, I was observing this same effect a couple of weeks ago: https://news.ycombinator.com/item?id=16469184

I thought about it (prompted by another comment allng these lines) but abandoned the idea assuming I'd only find a few hits. Maybe I should rethink my assumption and give it a serious shot!

I had a successful front page post last week where I posted a link someone else had posted in a thread the day before. I see it perhaps handful of times per year, but I'm not really looking for them.. so it's worth trying IMHO.

That's why we need direct democracy more than ever.

One that will include unratify voting.

Even easier to policy launder with direct democracy, since most people voting will vote for the headline purpose of the law or treaty without reading the text. Or worse still, you get Brexit-style direct democracy where the referendum settles only a broad objective and yet all criticisms of details of policy implementation are dismissed as defying the "will of the people".

> all criticisms of details of policy implementation are dismissed as defying the "will of the people"

To be fair, quite a lot of them are.

Policy detail was not put to the vote, and not agreed in advance of the vote, and to pretend otherwise for the sake of advocating a particular approach to withdrawal and post-EU settlement is simply dishonest.

Agreed, but things like that attempted Lords amendment to legally require the govt to guarantee the rights of UK expats living in Europe - something not within the govt's power, and therefore sending them to a gunfight with a wooden spoon at the negotiating table - was equally dishonest. I hope you won't dispute that some attempts genuinely are trying to overturn the vote, and often say so quite openly.

Oh sure, there are plenty of people that are openly genuinely trying to overturn the vote.

But arguments that the referendum vote for the five words "Leave the European Union" obliges the Lords to reject a policy of prioritising British citizens' rights in the EU post-withdrawal as a negotiation objective could be used as a defining example of laundering policies omitted from the actually voted upon text. Parliamentary bodies imposing conditions on the negotiation process is entirely compatible with the referendum vote and the standard democratic decision making process in the UK, and representatives' votes on them should be determined by whether they think the conditions are reasonable, not by any attempt to infer additional meaning from the five words of the prevailing referendum option.

That's fair. I suspect we're both nutpicking at this point, facilitated by the abundance of nuts on both sides.

I do think it's a little disingenuous to try to limit the mandate to just those four words. If both sides of the referendum campaign made it clear that a Leave win would entail X (e.g. leaving the Customs Union) then it's tough to deny that the result constituted a mandate for X. In the same way, a government that breaks its manifesto promises can't just turn around and say, "Well, we didn't write that promise on the ballot paper itself, so what are you complaining about?"

An abundance of nuttiness around symbolic issues is certainly another argument for why referenda in general make policy laundering easy!

There's a big difference between a manifesto mandate for a government to try to do X, which the Opposition are expected and encouraged to try to revise and thwart, and an assumption that something as little-discussed and likely irrelevant to most people's voting intent as whether to retain a Customs Union is a non-severable, non-contestable facet of public assent to leave the EU. That would have been the case even if a simple, practical customs border solution had been proposed at any time. As it is, we get "look, we can square this circle with the unilateral free trade we've been advocating for years, and to hell with the people who actually voted Leave because they wanted more protectionism not less..."

>>'Or worse still, you get Brexit-style direct democracy where the referendum settles only a broad objective and yet all criticisms of details of policy implementation are dismissed as defying the "will of the people".'

Is it not always the case? We vote for a goal a leave the experts to implement it.

The point of democracy is that we accept the decision of our con-citizens even if we deeply disagree.

Maybe Brexit was the wrong decision, but the idea of not asking because we could get a result that we don't like is totally antidemocratic and hypocritical. Why to bother with the democratic 'appearance' then? Just go with an oligarchy.

Anyway, I have the feeling that part of the Brexit result is because, people, already have the feeling of being in an oligarchy and wanted to use the opportunity to express their discomfort.

> Is it not always the case? We vote for a goal a leave the experts to implement it.

No, lawmaking in a representative democracy consists of the wording of a bill being amended as many times as necessary to secure agreement from a majority of representatives - all able to propose amendments themselves - and then being put to the vote before becoming law. This is also the case for some policies put to referenda: the AV referendum was one where the referendum was on a previously agreed text to become law, with no further legislative change implied.

And what is being objected to here is not the government attempting to implement the result, it is the government proposing a raft of policy objectives loosely related to some interpretations of the result and trying to curtail further debate and votes over them.

If, as you say, part of the result is because people wished to express their discomfort with the feeling of being in an oligarchy, it is even less attractive a method of decision making to assume that the executive's interpretation of the vote must prevail and that criticisms of it from those who voted the other way lack any legitimacy.

> Anyway, I have the feeling that part of the Brexit result is because, people, already have the feeling of being in an oligarchy and wanted to use the opportunity to express their discomfort.

I think that's the problem people see on it, not that "people were asked, oh no!". That, and populists.

>Even easier to policy launder with direct democracy, since most people voting will vote for the headline purpose of the law

Only if the direct democracy is set up to behave that way.

Any directly democratic system could in principle let people raise objections (e.g. "this law is susceptible to the cobra effect") and have those objections viewed by the people voting on the law.

Sure, anybody can publicise any objection to any law in any system. Ensuring such an argument is actually paid attention to and that revisions are actually made is a different matter entirely.

Relatively easy for a representative to make a case for a particular amendment to a particular piece of proposed legislation by addressing the need to rewrite Clause 17b to a group of elected legislators whose full time job is scrutinising that legislation, and then proposing the amendment is voted on there and then, with the proponents of the legislation having a pretty good idea of whether making the change will be necessary to carry the vote. Much more difficult to convince a significant percentage of the public who enthusiastically support the intent of a bill that they should take the time to read objections to Clause 17b and then vote against the whole thing because of Clause 17b. Not least because even members of the public informed and concerned about 17b are aware that the reason for their vote isn't tallied, and voting against a law they want because of unhappiness with one specific provision will torpedo the whole thing.

>Sure, anybody can publicise any objection to any law in any system. Ensuring such an argument is actually paid attention to and that revisions are actually made is a different matter entirely.

It's not a "different" matter. It's just a matter of how a directly democratic system is designed. If I were designing such a system, a "reddit style" forum attached to the vote that lets objections or arguments in favor float to the top would be a given - at the bare minimum.

>Relatively easy for a representative to make a case for a particular amendment to a particular piece of proposed legislation by addressing the need to rewrite Clause 17b to a group of elected legislators whose full time job is scrutinising that legislation, and then proposing the amendment is voted on there and then, with the proponents of the legislation having a pretty good idea of whether making the change will be necessary to carry the vote.

And it's relatively easy for a rich lobby group with a think tank attached to jam their views in to this relatively "unscrutinized" clause by making donations to the politician's campaign. This is the danger inherent with "professional" politicians and "policy experts" of any kind (economists are particularly susceptible to this phenomenon too).

And, it usually requires a grass roots movement to bring attention to "17b" issues before the corporation stops getting its way. Instead of marching in front of Congress with placards wouldn't it be easier if we could just click a button to register our displeasure?

>Much more difficult to convince a significant percentage of the public who enthusiastically support the intent of a bill that they should take the time to read objections to Clause 17b

You could make a directly democratic system that didn't attach a forum to facilitate deliberation, but in my opinion, that would be a massive oversight.

Equally I think it would be an oversight to not implement voluntary vote delegation. I don't see why just because I don't want to delegate my vote to a sleazy professional "full time" politician I shouldn't delegate some of my votes to my retired mother or some other person I personally trust with time on their hands.

The average voter isn't going to read the bill text for most legislation, never mind thousands of pages of internet arguments with those best at brigading or astroturfing (often well-funded lobbyist concerns) at the top.

The draft text is going to be written by the same politician speaking to the same lobbyists adopting the same strategy of tying it to something really desirable like preventing crime or promoting financial freedom, it's just that members of the public supporting crime prevention or financial freedom don't have the opportunity to broker an alternative wording, and once they've voted for it any objections to its provisions is going to be met with the full rhetorical force of accusations of defying "the will of the people". And people not in the pocket of the lobbyists who support parts of the policy for other reasons aren't going to muddy the waters and risk a public defeat for their ideals by arguing to fix the dodgy earmark if it's a big public vote rather than a series of rapid votes on amendments. It might work for vetoing stuff the public really didn't expect and really do care a lot about like tax rises, but in practice, referenda significantly lower the tone of debate, increase partisanship and decrease the effect policy detail has on the outcome of the decision.

>The average voter isn't going to read the bill text for most legislation, never mind thousands of pages of internet arguments

That's exactly why I described how you could build a system that accounts for that.

>thousands of pages of internet arguments with those best at brigading or astroturfing

Brigading on a platform for direct democracy is a feature, not a bug. Astroturfing and most other forms of uncivil discourse can be pretty much eliminated by tying your account to your identity and with a few fairly basic moderation rules.

I don't trust your group of legislators!

You can raise awareness to clause 17b, even in the form of pull requests. Moreover if it turns to be toxic we can immediately revert it with a new law.

With indirect democracy, none of our objections are binding. They'll just spit on them like they do every time.

> Moreover if it turns to be toxic we can immediately revert it with a new law.

I take it you don't have referenda on major issues in your country?

Much easier to campaign against a dubious clause of marginal relevance - before and especially after - when political figures have to justify a series of specific votes on specific amendments, and not just pick sides in extended public campaigns based on the headline intent of bills. Especially because of the absolute outrage that follows when anyone suggests any revisions after "the people have spoken."

>Especially because of the absolute outrage that follows when anyone suggests any revisions after "the people have spoken."

If you're referring to Brexit, this "absolute outrage" is mostly generated from the not-very-democratic billionaire owned media that probably would be reined in by a more directly democratic system.

I don't see any lack of outrage in grassroots blogs either. What it reveals is that (i) the public is very willing to believe in politicians' mendacity, and thus [depending on electoral system] the threat to politicians for repeatedly refusing to ratify amendments in the public interest is not nonexistent and (ii) turning a process of legislative change into a stage of a campaign for public assent makes politicians supporting it less accountable for its dubious implications and less willing to compromise on the detail.

I don't understand why the people should only speak once, as opposed to as often as they wish! Until no clause left unturned.

Referendums are suboptimal. They're not the kind of direct democracy for the century XXI. They're more like XIX.

Nancy Pelosi on ACA: “We have to pass the bill to find out what’s in it”.

https://m.youtube.com/watch?v=hV-05TLiiLU

And they did pass it, largely without reading or understanding, because of how voluminous it was. IMO bills over 20 pages long should be broken up and passed piecemeal.

You linked a nine-second video and didn't even quote the entire thing. "But we have to pass the bill to find out what is in it, away from the fog of the controversy"

What she was saying, which becomes more clear in the context of the full quote that you declined to provide, was that there was a lot of controversy and misinformation regarding the contents of the ACA; you may recall the term "Death Panels" being thrown around, for example. Trying to discuss the actual contents of the ACA had become impossible as a result of the density of misinformation and controversy, and Pelosi's point was that the only way to really find out what was in the bill, what effects the bill would have, was to pass it and then look at the actual effects on people.

If you want to talk about bills which were passed largely without reading or understanding, there are better options in more recent history that don't involve misleading paraphrases.

The main complaint of GP was that people would vote by headlines. Which is exactly what our congresspeople do. WaPo estimates ACA to be 10k pages in total: https://www.washingtonpost.com/blogs/fact-checker/post/how-m.... If you want to tell me that even the majority of the people who voted for it gave it anything more than a cursory, headline level look, I have some fine Florida swampland I’d like to sell.

Then you should find a quote which supports that statement, instead of mischaracterizing one which doesn't.

I think it does support it though. It’s a rare moment of lucidity and honesty from a congressperson. That’s how things really work when there’s a lot of effort required: just skip the effort and “may god bless the US” after it passes. Otherwise how do you explain that _affordable_ care act has nearly nothing in it about affordability? I have what looks to me like a plausible explanation: the only people who have actually read the whole thing are the lobbyists who wrote it.

Except Pelosi wasn't saying that she personally hadn't read the bill; she was saying that discussion of the bill had become impossible because discourse had degraded so badly, and as a result the only way to get meaningful information about what it contained, to be sure that you weren't getting fed lies by one party or the other, was to wait for it to pass and see what effects it had.

If you want to talk about bills which were voted on without being read, I recall a number of articles about the tax reform bill pushed by the Republicans; it was getting dropped on people's desks mere hours before the vote, with whole sections crossed out and notes written in margins. If you search, I'm sure you can find quotes from that time period about how it was impossible for people to read the complete bill and form an opinion on it before they were required to vote. You can also find quotes on the negative effects the rushed passage had, with loopholes and mistakes and unintended side effects that need to be addressed.

I’m not singling out Democrats here. Both sides do it pretty much all the time.

> I'm not singling out Democrats here.

Considering that you've tried to misrepresent Pelosi's quote multiple times in this conversation instead of bringing up an easy example where the thing you're allegedly mad about actually happened, I'm not sure I believe you.

Direct democracy is no picnic either: https://en.wikipedia.org/wiki/Tyranny_of_the_majority

Nothing is perfect but I rather like the tempering effect of an electoral based system. I think we'd have better outcomes if the elections of the electorals themselves (with a given State) were improved.

It seems to me that the dangers of direct democracy have been exaggerated (and maybe the dangers of the representative democracy downplayed).

I don't see how, at the end of the day, representative democracy save us of the dangers of direct democracy.

The people in power always will be worried about what the dirty masses would do.

This is not a binary choice: representation or untempered direct voting by the masses.

One variant is deliberative democracy. For an explanation see Fishkin, James (2011). When the People Speak. Oxford University Press. ISBN 978-0-19-960443-2.

This seems like an entirely hypothetical flaw in direct democracy whereas you only have to glance at the news to see that it's very non-hypothetical for our current system of representative democracy.

I suspect the magnitude of the "tyranny of the majority effect" in a directly democratic system would be determined by the structure of the system and any checks and balances that were put in place. You could configure it correctly or you could configure it badly.

It's not exactly like representative democracy came about because reasonable people got together and agreed collectively that it was the best system for all.

It evolved as a result of elites who used to rule non-democratically giving a series of small concessions over a period of centuries, often after a lot of blood has been spilled or a mass protest movement starts to grow to revolution-y size ("ok, some of you can kick us out of office but this time it's only the ones with penises who own land").

> This seems like an entirely hypothetical flaw in direct democracy whereas you only have to glance at the news to see that it's very non-hypothetical for our current system of representative democracy.

Not a very “hypothetical” flaw. If it was up to the majority to decide, interracial marriage likely would’ve been illegal into the 1990s: http://content.gallup.com/origin/gallupinc/GallupSpaces/Prod...

If it were up to elected representatives, it probably would have been illegal into the 1990s as well. Interracial marriage was legalized by the court system applying constitutional protections of individual rights to override laws created by elected representatives.

Asking "do you disapprove or approve?" skews the numbers higher than asking "should it be illegal or legal?"

Absolutely.

There are tons of things that I don't "approve of", but I would never be in favor of using the force of government to force those views on others.

Sure, but where interracial marriage is already illegal (as it was in the 1950s due to overwhelming popular disapproval) it’s unlikely to be made legal during a period when the majority of voters still disapprove of it.

You’re seeing this with marijuana now.

Okay, and how does that compare to the countless equally bad or worse laws passed in representative democracy?

With a representative democracy, we have

    vote -> candidate who supports general policies -> specific policies

which gives the "tempering effect" that I think you are talking about. However, the step from general to specific is implemented by legislators and therefore, subject to human factors and outside influence.

I'm trying to envision a system where something like [1] is used as the actual voting mechanism, but where you'd remove the actual candidates from the picture, and only vote on your general policy preferences. I haven't thought this out completely. I'm not sure how specific policy legislation would result, and I'm not sure if this still be subject to the tyranny of the majority since we could still have the Abandonment of rationality, for example.

[1]: https://www.isidewith.com/

edit: I've no idea if such a system has a name, or if the pros and cons of such a system have already been spelled out in literature somewhere.

Bot sure if direct democracy is ideal. Might result in zero trade agreements (some trade agreements are good).

But more/full transparency around trade agreements would be nice. And mechanisms to keep lobbying out of them.

I'd go further along than thriftwy and say that I can't imagine a direct democracy keeping high international commerce tariffs.

There's mostly nothing on them for the people, and the only case politicians know how to make trades some certain short term loses for some dubious long term gains that go primary to rich people.

If there's clear benefit in trade agreements, they will be reformulated and stripped of earmarks until they are ready to pass.

Note that excessive tariffs are just as easy to unvote directly. "You would want me to over-pay $200 for my iPhone and $2000 for my car, but as of tomorrow you no longer can. Do not ask again."

Like the CA ballot initiative process? No, thanks.

I lived through a couple of election cycles in CA, and realized the whole thing was a farce. At the time, you could pay signature gatherers $1 or so per signature, so anyone with about $1 million to throw around could get their pet initiative on the ballot. Ordinary people don't have the time or expertise to tease out the implications of legislation, because they have other things to do with their lives.

Direct democracy is fine for school boards and homeowners' associations, but societies of millions of people are complicated.

what is the status of the idea of Direct democracy, after the promising pirate party got sabotaged (by itself)?

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