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Comment by thomascgalvin | Hacker News Reader

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.

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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.

> 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".

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.

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