Scalia is a Scoundrel

No part of the Constitution repeals the first part of that section, and no part repeals the rest of it which says:

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but the Senate may propose or concur with Amendments as on other Bills.

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You don't get to ignore that part of the constitution just because you don't like it.The ACA started in the house, passed, was amended by the Senate per that article, passed, and the House (as is common) chose to let it go as it was.Perfectly constitutional.{ABE} Of course they can. They can insist that the amended bill be re-presented for a House vote, or a conference committee resolve the differences.They chose not to.{ABE 2} It means "ALL BILLS". What does "the Senate may propose or concur with Amendments as on other Bills.Edited by JonF, : No reason given.Edited by JonF, : No reason given.

Hi NoNukes,Read my message below the one I am replying too.God Bless,

Hi JonF, As I said in the message you replied too.HR 3962 was started in the House.
H.R. 3590 was started in the Senate.Reid could not get enough support to pass the House Bill but Pelosi was able to get enough votes in the House to pass the Senate Bill.The Senate Bill H.R. 3590 became the law.End of discussion.God Bless,

H.R. means House of Representatives. Any bill labeled HR started in the House of Representatives. Cool. So what? Yup. All Constitutional. Except it's the Senate version of HR 3590, which by definition did not originate in the Senate. Easy-peasy. It was named: H.R. 3590. A bill that originated in the Senate would be S. 3590.

Yes. No. H.R. 3590 as passed by the House was amended in the Senate, as explicitly allowed by the Constitution. Details matter, especially in law. Saying that H.R. 3590 started in the Senate is flat-out false: the name itself tells you that.

Well, we could still discuss what you think H stands for.

According to the constitution, what the SCOTUS says is constitutional IS constitutional. Doesn't mean that it's right, or moral, but merely constitutional. Some body has to have the final word on what is constitutional and what is not and the constitution makes the SCOTUS the final arbiter. Just the way it is.JB

I found this site which shows the version of HR3590 that was introduced in Sept, 2009. Yes, clearly it originated in the House. But, it's original version was a bill intended

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To amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes.

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with the short title of "Service Members Home Ownership Tax Act of 2009."The Bill was passed by the House and placed on the Senate calendar in Oct. 2009.The Senate then appears to have "amended" the Bill and the amended version is found here (the 7 versions of the bill are available from a drop down menu on the right side of the page). This "amendment" bears no resemblance to the original bill and was intended as a substitution

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Purpose: In the nature of a substitute.

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IN THE SENATE OF THE UNITED STATES--111th Cong., 1st Sess.

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H. R. 3590

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To amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes.

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November 19, 2009

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Ordered to lie on the table and to be printed

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Amendment in the nature of a substitute intended to be proposed by Mr. REID (for himself, Mr. BAUCUS, Mr. DODD, and Mr. HARKIN)

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Viz:

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Strike all after the enacting clause and insert the following:

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SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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(a) Short Title- This Act may be cited as the ‘Patient Protection and Affordable Care Act’.

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(b) Table of Contents- The table of contents of this Act is as follows:

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Sec. 1. Short title; table of contents.

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...

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I had not heard this claim that the ACA had been initiated in the Senate before, and maybe I don't really understand the significance or legality (or constitutionality) of the issue, but it seems a bit shady to "amend" a Bill by deleting it in its entirety and replacing it with something completely different. Also note that the Senate version was dated Nov. 2009 - only a month after it was put on the calendar. The text of the substitution must have been drafted before the bill was even placed on the Senate calendar (the rate government moves it would have taken at least a month just to cut-n-paste the text into the body of the bill). So it does appear that HR3590, as passed DID originate in the Senate, but was hidden or "substituted" for a bill that had originated in the House.I had a similar complaint when the grey wolf was de-listed. The problem was that the rider to remove the wolf from the endangered species list was included (buried) in a budget bill - at a time where passage of the budget was extremely time sensitive, threatening government shut down. Even if there was objections to that rider, it was not going to be addressed because of the urgency of the budget bill. While it may be perfectly legal, it takes advantage of loopholes to push forward an agenda.It seems to me that although it may be "constitutional" it seems rather unethical. Its a shell game.What do you think?HBD

I'm not sure unethical is applicable but it definitely is a shell game and has been going on as long as I have been following Congress so well over a half century. Unfortunately it is not a tactic most folk are aware of; yet another example of the failure of our educational system. It's stuff like this, the boring details of how the US governs itself that we really need to be teaching the kids.

I'm not sure which code of ethics it breaches. In an actual shell game, someone goes home without their pants, and this is a problem. Substitute amendments are just a technical convenience for legislators.

Please describe the ethical question involved. Some thing are wrong because they are inherently bad, while other things are wrong because they are prohibited by law. In this case, the result was an expedited entry of a bill in a situation where the Democrats had control of both chambers but were still subject to procedural tactics by the Republicans to prevent things from getting done quickly. Exactly which tactics were unethical in that situation?Given that the practice has been used before by Republicans and Democrats alike, it seems instead to be a mere procedural maneuver. Exactly what evil was wrought by the tactic? In what sense was the bill 'hidden'?

In defense of Scalia, I will suggest here that he probably had no intention of opining on what Congress intended. I spent some time this afternoon looking at Scalia's writing on the topic, and it is pretty clear that Scalia is completely disdainful of the use of legislative intent. He has been consistently dubious about using it. In fact, he sometimes takes the trouble of castigating his colleagues for referring to the legislative history even when he agrees with the Court's decision. Given Scalia's position on legislative intent, it was inevitable that he reach the conclusion he reached.Given that context, I would interpret Scalia's remarks to be directed to the plain text of the statute, and accordingly I would suggest that his remarks are not scoundrel like.On the other hand, Scalia is far less hesitant about looking at original intent and historical context when it comes to the constitution. One might argue that to be an inconsistency, but of a lesser magnitude.ABE:The link below is to an article that I think does show the scoundrel that Scalia is. The article takes Scalia to task for his shoddy defense of his 'no legislative history' policy. I found the reading quite entertaining.The New Republic

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OMITTING CONTRARY evidence turns out to be Scalia and Garner’s favorite rhetorical device. Repeatedly they cite cases (both state and federal) as exemplars either of textual originalism or of a disreputable rejection of it, while ignoring critical passages that show the judges neither ignoring text nor tethered to textual originalism. Thus they applaud White City Shopping Center, LP v. PR Restaurants, LLC, a decision that held that the word sandwiches in a lease did not include burritos, tacos, or quesadillas, because Merriam-Webster’s dictionary defines sandwich as two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them. Scalia and Garner stop there, as if that dictionary reference were the court’s entire decision, thus confirming the use of the dictionary as a guide to the meaning of legal documents. But the court had not stopped with the dictionary.

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Ignoring contrary evidence and declaring himself correct. Ain't that just like a wingnut? Edited by NoNukes, : No reason given.Edited by NoNukes, : No reason given.

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

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

I think given Scalia's history that parsing the sentence to this extent is not justified. I understand your argument, but I think Scalia is sticking to his policy simply refusing to consider the 'legislative history' by which I mean the writings and speeches given by Congressmen during the process of introducing and enacting the bill. If there is any intent or purpose to be gathered, Scalia insists on gathering it from the text alone.