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Comment by partiallypro | Hacker News Reader

It's time for legislators to legislate. Many of our current problems can be traced back to our legislature failing to do anything. They always rely on court rulings or executive power. Usually because everyone is scared of losing their next election or their future role at a cable news organization. Even the people that do put forth legislation often poison pill it, so that it will never pass. So they'll never have to be held accountable if it fails or have their name on the vote count.

I know it sounds counter intuitive, but I think getting rid of the line item veto has helped to cripple Congress even more. Because it used to absolved members and let them vote for something they didn't like, knowing it would not make it into law.

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I agree that it's time to legislate, but this is not one of those cases where Congress caused a problem and is trying to use the court to clean it up. In this case, the courts completely invented an immunity precedent out of nothing, and now Congress will have to fix it.

Just want to note that legislators are a little less at fault here than they normally are.

I am aware that this was a legislating from the bench situation, but it is up to Congress to fix it. Waiting on the courts to get around to it will not be fast enough, or may never come.

> legislating from the bench

The most effective deterrent to "legislating from the bench" is to recall those Justices who did the legislating.

Neither party will do this, though—enacting reforms through the courts is far more efficient than passing difficult legislation through the House, Senate, and the Presidency (all of which can anger voters). Much better to let the courts do it, and give brave speeches to the media about "judicial overreach" when required to appease voters.

> Waiting on the courts to get around to it will not be fast enough, or may never come.

The current situation is working well for everyone with the power to change it (see above).

In a common law system the role of the judiciary is to "legislate from the bench". I've never understood this peculiarly American objection.

America's Constitution was designed from inception to have strict separations of responsibilities among the legislative, executive, and judicial branches, such that they must work together to exercise power. This is meant to prevent any one individual or a party from becoming too powerful and thus endangering liberty. When they are not working together, they are meant to be powerless. Legislative power in particular was meant to be wielded by Congresspersons directly accountable to their constituents.

Judges as legislators violate this separation, undermining not only key protections on democratic integrity, but the legitimacy of the whole scheme, through its avoidance of that direct democratic accountability.

Note that excessive delegation from the legislature to the executive branch through agencies with rule-making power is also a separations-of-power concern, and there is special law around the procedures by which executive agency rule-making may take place. Another case is executive power being wielded by Congress: Seila Law LLC v. Consumer Financial Protection Bureau, argued this March and not yet decided, took on the problem that the head of the CFPB was not accountable to the President.

In practice, there is no coherent "separation of power". Power is not some multivalent thing which can be exercised differently by different institutions.

Power here is the ability of one group to direct/constrain the actions of another.. the judiciary, the executive and the legislature all exercise the same power.

The only thing "separation" achieves is a system of mutual antagonism which functions (poorly) as a system of accountability.

Here, congress at any point can redress "legislating from the bench" (ie., establishing legal precedent) by passing new law. If the judiciary ignores this law, then they can be removed from office.

I cannot see any circumstance here where the legislature has issues new law in redress for a judicial ruling and then the judiciary has gone on to ignore it.

What we're talking about here is when judges have simply "made up rules" where the law fails to provide answers. that is the role of the judiciary in a common law system!

It's what provides for reasonable standards of individual freedom which adapt to the age. rather than havign everyone legislataed by an infinite number of rules est. in 1701

You say, "that is the role of the judiciary in a common law system!" but America is primarily a Constitutional-law system, and only secondarily a common-law system. We have laws (the Constitution) describing what the judicial branch is meant to do, and what you describe here as your ideal is at least partially at odds with what they say.

It appears you are also a skeptic of the principle of Separation of Powers to begin with. You are, of course, not asked to accept that this is ideal. I will, however, ask that you accept that this structure was designed and codified into law to uphold that principle, and this is often at the root of (principled) objections when things are done your preferred way. This is a better place to start a conversation, rather than of celebrating your failure to understand (which is meant to imply that something does not make sense, but really says more about your own understanding.)

Imagine an American complaining: "Parliament is so confusing! What is all this drama about 'forming a government' and coalitions? Why can't they just elect a President directly?" The American may or may not have a meaningful point, but if they do have a point, this point is rather ill-served by the venue and the manner in which it is raised. The way in which you raise your objections here is similar.

My claim is that there is nothing in your constitution or legal set up which establishes anything like a "legislating from the bench" objection. I haven't failed to understand your system, I am claiming, there is nothing present in it to understand.

The constitution itself places a court as its interpretive body: the power of the constitution is exercised by judges, explicitly mandated to interpret it.

Judicial power isn't some "secondary" feature over which congress is meant to preside. It is the primary mechanism of the constitutional order itself.

The american legal order is established, maintained and exercised by the judiciary. There is a mistaken view that Congress as a democratic body has more "legitimacy" and therefore that others exercising power are overstepping their mark. But the american constitution is not democratic, and has no high regard for democracy as the principle authorising source of power.

The founders were far more concerned to rest power in as narrow hands as possible, hence the supreme court and hence the electoral college. There is no such thing as "legislating from the bench" -- this is just judges exercising their constitutional role.

Judges should adjudicate from the bench -- decide matters in dispute. To "legislate from the bench" would be judges creating laws -- the province of the legislative branch, not the judiciary. It's certainly true there's a blurry space there, and when courts make decisions that may be interpreted as the equivalent of manifesting new law, you'll hear complaints about "legislating from the bench".

> It's certainly true there's a blurry space there

It's trivial to determine if the court has "legislated from the bench" though: do parties unrelated to the lawsuit in question immediately, after the decision, have to behave substantially differently? Do extremely large numbers of people have to behave substantially differently after the decision?

If they do, that's "legislating from the bench." That's literally the test.

When they don't, a decision only affects the people in the suit and similar situations going forward (precedent). That's just the normal, everyday action of the judiciary branch. It's still "policy" (broadly speaking), but it's not legislating.

In the most recent case, changing literally every Title IX program, overnight—as well as all employment scenarios nationwide—is clearly "legislating from the bench", since it a) applies with immediate effect to large numbers of people not party to the suit, and b) requires them to behave substantially differently than they had before the decision.

(I'm fine with "legislating from the bench", BTW, that's literally how Civil Rights legislation is intended to work. Congress passed responsibility to the courts, just like in other areas they've passed responsibility to the executive branch.)

If a law is passed and people wait 40 years to enforce it(but then it's hot-topic and so will be enforced widely), is it "legislating from the bench" for the court to enforce a law that already exists?

It's literally the first criteria that to count as new legislation, the effect must be immediate:

> do parties unrelated to the lawsuit in question immediately, after the decision, have to behave substantially differently?

The court has not argued in their decision that Congress meant to provide these protections—they explicitly only argued that the law can be (re-)interpreted today as allowing it (using a broad interpretation). They fully admit that Congress at the time did not expect it to be interpreted this way.

That's the "legislating" part of "legislating from the bench": the actual legislators who voted on the original legislation did not intend to cause this behavioral change on ~200M Americans (at the time it was passed). 40 years later, the courts made the decision to legislate that behavior, from the bench.

Personally, I have to admire that kind of Chutzpah—no one will accuse today's court of lacking the will to power. That one of Trump's "conservative" justices wrote the decision is the icing on the cake. :)

You don't have to do such hypothetical backflips when you can see that the entire response of a huge group of people to Roe v. Wade has been to force the judiciary to legislate from the bench (with varying success).

Yes and no. Congress has had something like 40 years to write legislation contradicting the judicial construction and has failed to do so.

Again I agree, but the original formulation of qualified immunity seemed a little more reasonable, although it was still wrong in my opinion. The original decision:

> A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.

- https://www.leagle.com/decision/1967933386us5471842

I don't agree with this because ignorance of the law is not usually an excuse, but I imagine a majority of Congress might. However, the courts have gradually expanded "reasonably believed to be valid" to mean there must be "precisely factually on-point caselaw" determining the actions are unconstitutional. Sort of a frog in boiling water situation where a well-meaning member of Congress might not realize there was a problem until decades after the initial decision.

> I don't agree with this because ignorance of the law is not usually an excuse

I think that mens rea[1] should be more broadly required. Our current system is such that virtually everyone is breaking the law and only enforcement and prosecutorial discretion protects us.

[1]https://en.wikipedia.org/wiki/Mens_rea

This is a different issue, I think. Mens rea is about intent or "malice aforethought", but that doesn't mean you know what you're doing is illegal, it just means you are acting intentionally and not by mistake. See the different levels of mens rea in the US: https://en.wikipedia.org/wiki/Mens_rea#Model_Penal_Code

It's about understanding the consequences of your actions, nothing to do with knowledge of the law.

Currently, if an officer violates your rights on purpose, but there's no "precisely factually on-point caselaw" deciding what they did is unconstitutional, then they're immune from prosecution. They had mens rea, but it doesn't matter.

The parent was correct, and you are changing to a definition used in a statute that was never enacted.

The top description on the Wikipedia article says Mens Rea is "the mental element of a person's intention to commit a crime; or knowledge that one's action or lack of action would cause a crime to be committed."

Clearly I'm not a lawyer so I'm not confident in this, you might be right. Is mens rea ever used that way in practice? I don't understand how you could prove that in court.

A text message saying "I'm gonna kill that guy" might be evidence of intent, but nobody ever says "I'm gonna kill that guy, thereby committing a felony under US law". How could you possibly prove that somebody knew an action would be illegal?

Would you allow the possibility that Wikipedia is wrong? I can't find any other reference that talks about knowledge of the law itself, and it logically doesn't make any sense. Also, "mens rea" itself is just a vague Latin phrase, so the only meaningful "definition" is how it's actually applied in the world.

> How could you possibly prove that somebody knew an action would be illegal?

I'm far from an expert but I think usually the "reasonable" keyword applies to such things in law. A "reasonable" person would know killing is wrong - and they'll say you mightn't, too bad, pay attention to society.

A "reasonable" person might not know some obscure tax law they broke by mistake so they have to make it right and pay it back, but not be punished too harshly otherwise. OTOH you'd expect an accountant to know so you could infer intent and they could be handled more sternly.

Where are you getting your information? Compare the mens rea requirements set forth in the New York State Penal Code (§15.05): (quoted in full)

> Culpability; definitions of culpable mental states.

> The following definitions are applicable to this chapter:

> 1. "Intentionally." A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

> 2. "Knowingly." A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.

> 3. "Recklessly." A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.

> 4. "Criminal negligence." A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

As you can see, none of these care whether the person knows that producing the result in question will break the law. This is far and away the norm for mens rea; requirements of knowledge of the law are vanishingly rare.

Note also that these are exactly the same categories as defined by the Model Penal Code. (Strict liability excluded.) The only change is that the word "purposefully" in the MPC was changed to "intentionally". So you're not even right that this is "a definition used in a statute that was never enacted".

My understanding is that New York did adopt a variant of the Model Penal Code, though the United States did not, and neither has any other common-law country. The meaning of Mens Rea is not dictated by the state of New York.

> The meaning of Mens Rea is not dictated by the state of New York.

The New York Penal Code doesn't attempt to define, or use, the term mens rea. Rather, it defines levels of "mental culpability" which are themselves referenced in the definitions of crimes. That is what mens rea means. It seems increasingly clear that you don't yourself know the meaning of the term, and you're certainly not more able to dictate a meaning than the state of New York is.

But feel free to compare this Australian legal advice:

> Mens rea offences are offences which, to be proven, must demonstrate an accused both committed the physical act (actus reus) as well as had a guilty mind – that is, the intention to commit the offence (mens rea).

（ https://www.gotocourt.com.au/criminal-law/vic/honest-and-rea... )

Australia treats the term mens rea in exactly the same way the state of New York does, by defining different levels of it and using those levels to define crimes. Compare these two crimes defined by the Crimes Act 1958 of Victoria:

> A person who, without lawful excuse, intentionally causes serious injury to another person is guilty of an indictable offence. Penalty: Level 3 imprisonment (20 years maximum). [I.4.16]

> A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence. Penalty: Level 4 imprisonment (15 years maximum). [I.4.17]

To clarify - Mens Rea is not the intent to go against criminal code, it is the intent to commit an action which would result in an outcome the criminal code penalizes. You can be entirely ignorant of legal standards and still act with intent.

This is to separate the following two scenarios since I think it'll be pretty clear to folks that the justification of punishment is different in the following:

1. A person pushes a button on a blank wall and someone is shot as a result.

2. A person squeezes the trigger of a firearm while that firearm is pointed at someone.

Other than the classic "Don't go around pushing big red buttons" the person in the first scenario is not morally culpable for their actions due to a lack of knowledge of what might follow from their button pushing. This is also the reason why actions like trying to shoot someone and having the gun jam tend not to be distinguished under the law from actually shooting someone (when such a situation can be identified). Your intent in squeezing the trigger was to shoot someone - the fact that the universe happened to intercede and prevent your action was something you could not foresee.

That original formulation no longer exists, or maybe more accurate to say that it has been broadened into meaninglessness: officers no longer have to believe a law is valid in order to "reasonably" enforce it. That's right: they can stop you for violating made-up laws. Constitutionality doesn't even enter into it:

"On Monday, the Supreme Court ruled that police stops are legal when the officer has a "reasonable suspicion" that a law is being broken—even if that law doesn't exist."

https://www.theatlantic.com/national/archive/2014/12/when-co...

https://www.themarshallproject.org/2015/08/03/how-the-suprem...

https://en.wikipedia.org/wiki/Heien_v._North_Carolina

Congress has no problem doing this kind of "fixing" of the Court's decisions when it so suits them: see the passage of RFRA in the wake of Employment Division v. Smith.

There's probably no better time than right now to get the support needed to pass a law eliminating QI. While we're at it, we can pass a law to replace Bivens rather than have analogous civil rights cases involving federal agents subject to the courts' whims.

Except that the Senate leader has declared any such effort "dead on arrival".

There's no chance to fix systemic issues of any sort unless the Dems take the Senate. It wouldn't hurt to persuade Biden to make it part of his first-100-days package.

You know, congress has immunity too. I think the thinking is to allow them to pass laws that must be passed, but there would be no personal conflict of interest.

The need to shift responsibility for legislating back to the legislature is one of the conservative ideals that I strongly agree with, even though I sit on the left hand side of the spectrum.

Currently our system depends on legislating in the executive (EOs & regulatory bodies like the FDA given the power of law) and in the legislature. To my eye this has been an utter disaster; as it has both decoupled the legislating process from voting, and crippled the one deliberative body that citizens have some control over.

Just because someone from a political ideology says something you agree with doesn't mean for an instant you agree with their ideology! Wanting effective representative legislators and legislation should be a quality of all citizens.

I think having non-effective legislators and having a powerful executive and judicial branch is an effective method to remove citizen control of government. It is on purpose.

> Just because someone from a political ideology says something you agree with doesn't mean for an instant you agree with their ideology!

I’m aware of this, I’m just disclosing my own general stance for rhetorical effect.

> It is on purpose

I don’t think we got here on purpose; I think we got here on accident. History is just too full of random turns and twists caused by external events and opposing parties for there to often be a grand plan to anything; dumb luck explains a lot of things.

Now that we’re here, I do believe that the lack of any effective solutions is probably deliberate. The current people in power gain far too much from the status quo to actually offer up meaningful reforms.

I am aware, but we need to be able to say the truth without caveats and without saying everything that those we disagree with is incorrect.

Well the leg is supposed to be the check on the executive. Esp because the president names the judges the checks can be removed through that sequence.

Wait, that's a conservative ideal?

As far as I can see from their behavior, the conservatives are just as happy not having the responsibility as anyone else; most of their talk about "legislation from the bench" and "overreaching regulations" has been little more than attacks on abortion rights, same-sex marriage, and so on. Further, when they have had the opportunity, they have been completely unable to legislate, even so far as to reverse previous legislation that they hate.

So if the FDA wants to make a change to, say, the requirements for nutritional labels on food, it would require the House and Senate to pass a bill and the President to sign it?

If the FCC wants to, say, lower the minimum required channel separation in a particular band, that too would need a passed bill and a Presidential signature?

I doubt that that is practical.

The scope of that power has to be dialed back significantly.

Currently the FDA has the unchecked power to create federal felonies, because failure to comply with FDA regulations is a felony.

I’m sure most people agree that having a FDA is good, as is having an enforcement mechanism. But giving an unelected member of the executive branch the ability to effectively legislate alone is kind of a crazy power to leave totally unchecked.

This power is exactly what creates the CrimeADay twitter feed, since these federal regulations are both insanely minute and often not very well thought out. My favorite example is that it’s a felony to sell shredded cream cheese.

Cream cheese source please?

Apparently it’s actually “grated cream cheese”. Slight hiccup on my memory’s part.

https://twitter.com/CrimeADay/status/812119132326006785?s=20

I'd examine Chesterton's Fence before using that example.

The powers of the FDA aren't totally unchecked. There's an old law called the Administrative Procedures Act. If I understand it right, it basically says (among other things) that government agencies that make rules have to have good reasons for those rules, and that they should be consistent with the purpose of the agency as described in the laws Congress passes delegating authority to that agency. So, if the FDA creates a rule that whistling the national anthem while riding a unicycle on the deck of an aircraft carrier in active service is against the law, citizens adversely affected by that rule can sue the agency and (if successful) have the rule overturned by the courts because the FDA was not granted authority over those things.

I expect it might be possible to challenge the rule against grated cream cheese even if it's within the scope of the FDAs authority if the rule doesn't serve any legitimate purpose.

https://en.wikipedia.org/wiki/Administrative_Procedure_Act_(...

It’s unchecked by any elected body, more precisely.

You can use the courts as a redress against bad regulations, but you have significantly less input into what generates those regulations, especially since the FDA is not a deliberative body.

Currently the FDA has the unchecked power to create federal felonies, because failure to comply with FDA regulations is a felony.

This is false.

The FDA can only issue regulations within the specific statutory authority given to it by Congress.

Moreover, a violation of an FDA regulation is not a felony. At best, the FDA can refer a case to the Justice Department for an investigation of whether federal laws were violated when violating the regulation. In many cases, it is possible to violate a regulation without violating the law authorizing that regulation. In others, violating the regulation is synonymous with violating the statute because the regulation just restates the statute.

You’re confusing the ability to create a felony vs. the ability to prosecute one. The fact that they still have to refer to the justice department to prosecute is a different thing.

I’m not saying that the FDA has unlimited regulatory authority, they could not for example regulate financial securities, but they have an unchecked authority. This is subtly different.

Here's the legislation that needs to pass: https://amash.house.gov/media/press-releases/amash-pressley-...

Currently in a House committee: https://www.congress.gov/bill/116th-congress/house-bill/7085

And it will be interesting to see if it will be put on the agenda by Chairman Nadler. But Pelosi's omnibus bill has a far weaker proposal in that it only eliminates QI for police officers.

Even that weaker proposal can't pass until after the election: https://www.cbsnews.com/news/tim-scott-police-reform-bill-qu...

What's unfortunate is that a lot of bills are not even brought up in the Senate or the House for a vote after the other house passes them, often with overwhelming bipartisan support.

This effectively grants the Senate majority leader and House speaker veto power over any legislation. Even if the rest of the body supports the bill, the leader of the house can just kill it by refusing to bring it up for a vote.

I'm not sure whether this practice happens because the leader of the bodies don't want it to pass, or there's not enough floor time to bring it up, or if these bills are ultimately tucked into an omnibus package and passed into law that way.

The good news is that if people and their legislators truly care about this issue, they can demand that leaders allow votes as a condition for their support. The system is bad right now, but it can be changed.

Why would they? If your state senator is a high ranking representative like the Senate Majority Leader, you like that your state has more power.

Because of the way the Senate is structured with two representatives per state regardless of the population, that gives the less populous flyover states and the “Bible Belt” way more power than their population would entitle they to.

... the Line Item Veto was immediately challenged in court and ruled unconstitutional 2 years after it was enacted. And it should have been. Removing parts of a bill changes the bill, and executives already have too much power, much less giving them the power to legislate.

The line item veto at the federal level only existed from 1996 to 1998 and was limited to certain budgetary items.

Before 1996 the last democratic president to be reelected was Teddy Roosevelt. Things have changed a lot since then, and congress is demonstrably far more polarized and unproductive.

First, I think you mean FDR, not Teddy. Second, you have to be very specific in your definition of "reelected" to not include Truman ('48) or Johnson ('64).

I'm failing grasp what your point is suppose to be. The original poster lamented that the ending of the line item veto has had a significant impact on Congress's behavior during and after the line item veto. I pointed out that the line item veto only existed for 2 years and only applied to very specific budgetary matters. I maybe mistakenly thought my point would be self-evident, so let me clarify. I believe the OP's idea that the elimination of the line item veto has had a significant impact on the current state of congressional politics is incorrect because the line item veto was not in place or applied generally enough to have ever had much of any impact on congressional politics.

Based upon that clarification is your point still relevant and if so can you explain it?

> "I know it sounds counter intuitive, but I think getting rid of the line item veto has helped to cripple Congress even more."

that's an issue, but the linchpin is the influence of money in politics along with a voting system that tends toward 2 parties. legislators spend much more time chasing dollars than considering legislation, and hewing to party lines than independent thought. 'politician' is too much of a career rather than a duty.

The Senate GOP has explicitly said that it treats qualified immunity as a poison pill. The only way legislators will legislate is if the GOP loses its Senate majority in November.

https://www.axios.com/tim-scott-police-reform-bill-qualified...

So vote Democrat.

One party has been trying to legislate—whether you happen to agree with their legislative priorities or not—and the other party has been absolutely wrecking the established rules and customs of the Senate to avoid legislating. We all know which is which.

So if you genuinely want legislators to do their damn jobs, spread the word to everyone you know to vote out the Republican do-nothings this fall.

I don't know this is wholely true. Democrats and Republicans have been breaking rules of order for the last 20 or so years it seems, alternating based on who's in control.

You can throw that "both-sides-ism" right out the window, just like the Republicans threw all rules of procedure and decency. It's nothing but false balance at this point.

Yes, Democrats might have occasionally pushed things a bit in previous Congresses, but I know for a fact that you cannot point to anything Democrats have ever done that's as egregious as Republicans actively colluding to a) prevent a sitting President from being allowed to appoint a new Supreme Court Justice to the bench, or b) prevent any legislation the opposing party proposes from being brought to the floor in any way, shape, or form for years, purely for political gain.

https://en.wikipedia.org/wiki/George_W._Bush_judicial_appoin...

A philibuster is nowhere near the same level of obstruction as refusing to call a vote at all.

It also hasn't been used to anywhere near the same frequency.

You can throw your biased partisanship right out the window.

The data demonstrates pretty clearly that whomever holds control of both houses of congress, gets bills passed, regardless of which party, and even usually regardless of which party holds the presidency.

[source](https://www.govtrack.us/congress/bills/statistics)

The data demonstrates pretty clearly that whichever party control of both houses of congress, gets more bills passed, regardless of which party, and even regardless of which party holds the presidency.

source: https://www.govtrack.us/congress/bills/statistics

Many of our problems can also be traced back directly to this guy: https://www.youtube.com/watch?v=Wsq30E6OSVU. Who just clinched the democratic nomination for president of the United States.

Unfortunately, the modern GOP's primary goal is to prevent legislation from passing. There are hundreds of bills sitting in the Senate that will never receive a hearing, much less a vote.

The Courts invented qualified immunity, and the Courts should have done away with it, as well. Now, unfortunately, we will have to wait until we have the House, Senate, and Presidency controlled by the same party to fix what the Courts fucked up.

> The Courts invented qualified immunity, and the Courts should have done away with it, as well.

Herein lies the problem. The Courts aren't constitutionally permitted to invent much of anything.

Citation needed. Case law has existed since the invention of America.

It’s a major part of common law which was inherited from England. Pre-Revolution, even English court cases, can be persuasive in modern US courts because of this history.

I take their meaning as; The court’s role is to interpret the law in letter and spirit at the time at which it was enacted. It is not to invent legality or update definitions with modern social norms.

The argument in dissent is that none of the members of either house or senate intended “sex” to include orientation or identity in 1964. Despite society having a different opinion on that today, redefining “sex” is not the courts prerogative.

>The argument in dissent is that none of the members of either house or senate intended “sex” to include orientation or identity in 1964. Despite society having a different opinion on that today, redefining “sex” is not the courts prerogative.

I read the court's decision and the test they applied was "if this person's sex was the opposite would they not have been fired ? ". In both the cases of orientation and identity, the answer is a resounding yes. If someone that was gay was female, they wouldn't have been fired, same for a lesbian if she were a man. Also same for transgenders, if their sex was reversed, they would keep the job. I don't see how this is redefining "sex". The decision does not say that sex includes orientation or identity like you claim.

That’s exactly what the dissenting opinion says. You should read it fully so that you don’t confuse their argument with “my claim”.

Does case law invent law or does it narrow or broaden the scope of how law already created can be applied and interpreted? Surely it’s the latter? Or are you suggesting the difference is immaterial?

I don’t quite understand your response.

I can't speak for the US but in the United Kingdom, case law can almost certainly invent law. Historically, that was how the law formed. Most law now derives from statute (in which circumstances, case law merely adjusts the scope of application and interpretation of existing law) but there are still areas where case law can still _invent_ law.

Maybe the same applies in the US too.

Unavoidably in the service of justice (which is their purpose) the courts will in practice make law.

The legislature deals in broad hypothetical scenarios, for example perhaps "Putting anchovies on pizza shall be a crime punishable by death".

Courts must deal with an actuality with lots of specific facts that could not possibly have been anticipated by the legislature. For example are these particular fish anchovies? Was this item a pizza in the sense the legislature meant? Who exactly "put" the anchovies on the pizza if it happened automatically by action of a machine? The person who installed the machine? The person who loaded these specific anchovies into a hopper? Does it matter if that person knew the machine makes pizza?

It may also run into larger questions. Is the legislature really allowed to kill people for putting anchovies on their own pizza? If not, why not? Would it be allowed to fine them? All of this has the effect of "creating law" in order to dispense Justice, which is the whole reason we created courts.

Okay, I get what you’re saying here, framing it the way you have this makes sense. Thanks for that.

Citation: US Constitution.

Courts adjudicate the law, including common law. They cannot create new law.

If there was no law or common law establishing "qualified immunity" then the court cannot invent qualified immunity.

In fact, in this very article, one of the Justices agrees with me here:

> Thomas has argued that qualified immunity is essentially a creation of the justices — substituting “our own policy preferences” for that of Congress.

All in all, it's a failed system that requires someone to even have to utilize the supreme court to settle these types of matters. I don't believe the government can legitimately absolve itself from any liability, regardless of circumstance, that a private person is not absolved of. This would require actual change on a state and local level, but that's not a change that most people desire. They believe the state is benevolent, there's only a problem when it's a problem they (the public) face themselves.

By that logic, judicial review would also have to be struck down, as the Constitution did not make any provisions for it, would it not? After all, to strike a law passed by the legislature and approved by the Executive is to essentially at a minimum have the power to mint a new law of the form "X law is unconstitutional and cannot have force of law."

That's the troublesome crux that bugged even Jefferson if I recall, that essentially those appointed for life judges through judicial review could single handedly shift the direction of policy in the nation.

For as much effort as was put in to constrain the Executive, the judiciary was a rather pronounced backdoor that I'm unsure that any amount of wrangling or re-architecture could resolve.

Though, I'd love to see an experiment where affordances were made for a "Supreme Jury" of the people to balance out the political strategic value of Supreme Court justice appointments to counter the long term provisioning of power, but I'm still unsure whether that would be stable in terms of maintaining any semblance of checks and balances.

Perhaps that Jury is vested with final discretion over acceptance of writs of certiorari, allowing the populace to direct the attention of the court, but still leaving the review to the appointees. I'm still not sure there's not an exploit there somewhere, but it would be an interesting way to essentially create an "anti-legislature", primarily tasked (given the general tone of Supreme Court appeals) of knocking law off the books. Then again, given I'm just spitballing, I'd want to sit down and give it a real hard think as to whether that would really do anything other than add in more complexity.

> By that logic, judicial review would also have to be struck down, as the Constitution did not make any provisions for it, would it not?

Indeed, you are correct. Judicial review is also unconstitutional.

This does indeed beg the question of resolving disputes of constitutionality. I don't believe the congress has the authority to compel the executive to do anything, other than their existing abilities to pass laws. The executive is free to enforce, or not enforce, whatever laws as they see fit, however they see fit. The court's role is to decide if the executive is appropriately applying the law in a particular case, as written by the congress.

There is no explicit or implicit need for judicial review. Why?

What is the purpose of the Constitution? To give limited, specific powers to the federal government. Who's giving these powers? The states.

It's the states' job to limit unconsitutional power grabs by the federal government. How do they do that? Well, both houses of congress are elected by people of each state, not nationally. We can also dive down the rabbit hole of the 17th amendment.

Crucially, the executive is elected by a body appointed by each state. In it's current form, the states have adopted a system where the electors are appointed based on a state's popular vote. This needn't be the case.

Finally, there's the question of enforcement. For much of the early history of the US, states were tasked with enforcing federal laws. A very prominent example of this: https://en.wikipedia.org/wiki/Fugitive_Slave_Act_of_1850#Nul...

This brings us to the final line of defense against unconstitutional acts: nullification. The entire reason the US has a trial by jury system is to judge the law, not the facts. There's no room for a judge to interpret whether a law is fair, or constitutional. Only for them to preside over the trial and adjudicate whether or not the state is applying law, not adjudicating the law themselves.

Is this a perfect system? No, but it's the one we used to have, and unsurprisingly, it's better than the one we have now.

Judges tell one thing to the public and do other thing. To the public: they say they don't invent law. But they do invent, modify law. That's why there is so much literature on "judge-made law".

Considering this has been around since 1982 I would say both parties have enough blame to go around.

Congress has to do this so that Courts can rely on law to determine if an offense occurred. The problem we face is that many in Congress will want to lump into a much larger bill with some very untenable items knowing that as such it cannot pass. This is called virtue signaling which has been practiced far too often by Congress.

One simple bill, up and down. https://amash.house.gov/media/press-releases/amash-pressley-...

> I would say both parties have enough blame to go around.

There's only one party preventing discussion or a vote. This both-sides-are-the-same rhetoric is both patently false and a disservice to the American public.

Both parties have failed to act, but now that one party has finally caught up to reality in this one area, only one party is actively obstructing something that is an obvious necessity.

It is a common tactic to claim support for something popular when you know it can't pass.

Last I checked, the Democrats are in charge of virtually all of the cities where this is happening, as well as most of the states. No reason this can't get done at the state and local levels.

Well, the supremacy clause, for one.

I thought the supremacy clause applies only when federal and state law are in conflict?

And isn't that a reason States could not contradict a federal law of exactly this sort?

Unclear to me.

If QI was a law, the supremacy clause would certainly apply.

But QI is not a law, however it is a policy created by the courts based on federal law. It’s not clear to me whether the supremacy clause applies here, but I suspect it does.

That keeps them from altering the contours of 42 USC 1943 to eliminate QI, but it doesn't prevent them from adding a parallel redress under state law.

Mmmm, if we polled the leadership of the Democratic Party or Democratic elected officials, I think you'd find that nearly 100% of them support qualified immunity or, if they express lack of support, are nevertheless unwilling to act against it.

Same with the Republican Party. So I have no idea which party you are referring to that has "caught up with reality". Certainly there's a segment of mostly-Democratic voters who oppose QI, but... they aren't represented among leadership at all.

There’s a bill in Congress now to end QI, it has support among democratic Congress people and Justin Amash.

I would personally count that as leadership not supporting QI.

It's perfectly safe to support something like this in the moment, as it can't pass the Senate or avoid being vetoed.

Then what, pray tell, are you suggesting?

> Both parties have failed to act, but now that one party has finally caught up to reality in this one area

Just like card check. You'll get tax rebates on medical procedures following officer involved incidents if your lucky.

This is a bizarre take. The GOP controls the Executive branch and half of the Legislative--2/3 of the lawmaking machinery of the federal government. Dems control 1/3.

The GOP isn't obstructing the Democrat agenda--the American people are.

The "American people" are not equally represented, and GOP voters are overrepresented by design in the parts of the federal government that the GOP controls.

This was a somewhat-naive experiment in vote distribution that has been hopelessly gamed by the GOP and needs to be put to rest.

> The "American people" are not equally represented, and GOP voters are overrepresented by design in the parts of the federal government that the GOP controls.

Your point seems to be that some hypothetical alternative government would give Democrats more power, so the GOP, which controls the real government, is obstructing the will of the people... as it would be represented in that hypothetical system? This is an equally bizarre point. If Dems want to pass their agenda, the should concentrate on running candidates that can win according to the rules that they're stuck with. Or even changing the rules via Constitutional Amendment. Bellyaching about the rules is just sour grapes.

>This was a somewhat-naive experiment in vote distribution that has been hopelessly gamed by the GOP and needs to be put to rest.

I'm not sure that you understand the narrow margin by which the United States came into existence. Without these 'somewhat naive' mechanisms, small states would not have joined the Union and there would be no United States.

> equally bizarre point. If Dems want to pass their agenda, the should concentrate on running candidates that can win according to the rules that they're stuck with.

https://i.redd.it/qo1c2vtmu8s21.jpg

What a joke of a democracy we collectively pretend to have.

> Bellyaching about the rules is just sour grapes.

Bellyaching about the rules is necessary to get people onboard with the idea that maybe the Constitution should be changed. That it's not a perfect religious artifact.

> I'm not sure that you understand the narrow margin by which the United States came into existence. Without these 'somewhat naive' mechanisms, small states would not have joined the Union and there would be no United States.

I'm not sure why I'm supposed to be convinced that this would've been such a worse outcome.

Replace "the American people are" with "the Electoral College is" and you might have a stronger case there.

Not even close. What's necessary to create legislation is the Congress, and the Electoral College has nothing at all to do with election of Congress.

I was responding to a comment which said:

> The GOP controls the Executive branch and half of the Legislative--2/3 of the lawmaking machinery of the federal government.

You're right that it is misleading (and potentially dangerous) to think of the Executive branch as part of the "lawmaking machinery of the federal government", but there is such a thing as a presidential veto, so it's not like the Electoral College is completely irrelevant in terms of Congress's power to create legislation.

They are doing more than just blocking the Democrat agenda. The Senate leadership is blocking bills that would pass even in the Republican majority Senate if they were allowed to come up for vote.

Could you provide an example?

H.R. 116: Investing in Main Street Act of 2019, passed House 403-2.

H.R. 1759: BRIDGE for Workers Act, passed House 393-23.

H.R. 2590: DHS Overseas Personnel Enhancement Act of 2019, passed House 394-2.

H.R. 2609: DHS Acquisition Review Board Act of 2019, passed House 419-0.

H.R. 769: Counterterrorism Advisory Board Act of 2019, passed House 414-12.

H.R. 3050: Expanding Investment in Small Businesses Act of 2019, passed House 417-2.

H.R. 4407: SCORE for Small Business Act of 2019, passed House 389-8.

H.R. 499: Service-Disabled Veterans Small Business Continuation Act, passed House 423-0.

H.R. 596: Crimea Annexation Non-recognition Act, passed House 427-1.

H.R. 1593: CLASS Act of 2019, passed House 384-18.

Of course I can't say for sure that any of those would pass if allowed to come up for a vote in the Senate. Those all could be issues where GOP Representatives and GOP Senators are so far out of alignment that they pass with overwhelming GOP support in the House but would get at most a couple GOP Senators behind them.

"Here here: police!"

"Don't look here: political dynasties and corrupt politicians"

>It's time for legislators to legislate. Many of our current problems can be traced back to our legislature failing to do anything.

Congress has sent 300+ bills to the Senate and McConnell wont even debate them.

Half the Legislature is doing something. The other half is stalling.

I don't know. The original law is pretty clear. The only reason this is an issue is due to the Supreme Court itself. What is Congress supposed to do? Pass another law that the Supreme Court will then willfully interpret ad its opposite? The fault is completely with the court on this one. They created the problem. They refuse to fix it. Fucking assholes.

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