An Update on the Kyl/Graham Legislative History Scandal
Having written about this subject previously, I was planning on writing a post rebutting Ramesh Ponnuru's recent article which claimed that Justice Stevens had been duped in his Hamdan opinion and that Senators Kyl and Graham had done nothing that their Democratic colleagues were not also guilty of.
Fortunately, Emily Bazelon of Slate has done the job for me (and done a much more thorough and well-researched job than I could have done). She notes that "It would be very nice for Graham and Kyl—especially Kyl, whose participation in the case has become an issue in his re-election campaign—if Ponnuru was right. But he's not." Read the whole thing.
Fortunately, Emily Bazelon of Slate has done the job for me (and done a much more thorough and well-researched job than I could have done). She notes that "It would be very nice for Graham and Kyl—especially Kyl, whose participation in the case has become an issue in his re-election campaign—if Ponnuru was right. But he's not." Read the whole thing.
posted by A.L. at 4:02 PM
11 Comments:
Ramesh is supposedly a smart guy. Did he choose not to read Hamdan's lawyers' arguments (pdf)? The legislative history is indisputable. What a tool.
National Review is such a toolshed.
To my knowledge, nobody else inserts fake "colloquies" into the Record. Members enter "extensions of remarks" all the time, yes. But nobody fakes conversations, complete with fake interruptions.
Kyl and Graham's cheap stunt is of a different class, entirely.
Jove, what a scandal! An entire nation is outraged! Oh, the humanity...
You're probably already aware but Ponnuru has responded to the Slate article. In a nutshell, he maintains that while Levin and others may have made remarks prior to the last day of the term, the remarks Stevens cites to were all from that last day and therefore the Democrats he cites did nothing different than Kyl and Graham. I'm not necessarily agreeing with that assessment but thought it worthy of pointing out.
Just one more example of the utter unreliability of legislative history, and vindication of the Scalia-championed position that judges (and justices) should rely solely on the plain text of statutes.
Don't you agree AL?
Just one more example of the utter unreliability of legislative history, and vindication of the Scalia-championed position that judges (and justices) should rely solely on the plain text of statutes.
Actually, not really. I'm somewhat more sympathetic to Scalia's view when you're dealing with ancient legislative history where no one can even remember the context.
But, believe it or not, I think this case is actually the perfect example of why looking at legislative is helpful sometimes.
The provision of the DTA in question was incredibly ambiguous. Its structure suggested it was not intended to apply to cases like Hamdan, but its text could be read the other way.
But if you look back at the legislative history, it's pretty clear what was intended. There was a previous version of the bill that would have unambiguously stripped jurisdiction from the Court. But, in order to secure the support of democrats, the bill was changed in a way that all the democrats clearly thought preserved jurisdiction over Hamdan. That's the only reason they agreed to vote for it. Kyl and Graham just slipped their fake colloquy to contrary in at the last second to try and muddy the waters.
Had the court not looked at legislative history, they might well have got this case very wrong.
Your response is built on all of the types of assumptions that plague reliance on legislative history. "In order to secure the support of democrats, the bill was changed . . ." Says who? That's just based on one's reading of media reports, etc. That type of reliance is surely a pretty shaky thing to base interpretation of a stuatute on. Or how about "that's the only reason they agreed to vote for it." Come on. Leglisators vote for all sorts of reasons. Could have been trading their votes for votes on other bills, or trying to provide themselves with political cover, or any number of other reasons. Who knows for sure? Your preference for how the bill should be interpreted, dictates your view of ther reasons why the legislators voted for the bill. Totally unrealiable, and based on reader bias. I will stick with the text.
You have to base your assumptions about why legislators cast their votes the way they did on media reports only when the legislative history doesn't contain point blank declarations from those legislators.
Which is exactly what the Democrats whose comments were cited were trying to do. And exactly what Kyl and Graham were trying to undo with their fake colloquy.
Who knows for sure? Your preference for how the bill should be interpreted, dictates your view of ther reasons why the legislators voted for the bill. Totally unrealiable, and based on reader bias. I will stick with the text.
At some point this kind of debate degenerates into epistemological nonsense. In this case, the text and structure of the bill were ambiguous and the legislative history, which was only a few months old, was not. That's exactly the sort of case where it makes sense to look to legislative history.
Refusing to do so would have been the equivalent of covering your ears and flipping a coin to decide the issue.
But we all know that legislative history is manufactured and designed. THat's what congressional staffers and committee staffers are for. Legislative history can never be unambiguous. A text may have ambiguity, but turning to legislative history is not the way to resolve that ambiguity. You must conclude that the ambiguity is intentional or relfective of Congressional indecision on that issue. Congress knows how to draft clear bills, sometimes it chooses not to.
How would you know whether it chose not to?
What distinguishes a conscious choice to be ambiguous from a plain, old mistake -- not counting, let's say, legislative history?
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