Swan Tower - A question for the legal eagles

Jan. 20th, 2014

11:24 pm - A question for the legal eagles

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More a question for the legislative eagles, I suppose. This has nothing to do with the Memoirs of Lady Trent; it’s a question for the modern-day U.S. (Because when I’m on the home stretch of a book is a great time for totally unrelated stories to mug me!)

Suppose there is a federal law to deal with Topic X. Ambiguous Situation B arises, sparking disagreement over whether the law applies in this instance or not. This is the first time Ambiguous Situation B has occurred, but it likely won’t be the last, and Topic X is a pretty serious issue, so people are very invested in getting the matter settled beyond question.

Quite apart from the fact that there would be presumably be a legal brangle over the applicability or irrelevance of Law for Topic X, I imagine that there would also be a rush to amend the law and render that question permanently moot.

My question for you all: how would this proceed?

Assume that Congress is very interested in getting the law amended ASAP, but that it is divided as to whether it should be amended to say “nope, definitely doesn’t apply here” or “hell yes it applies.” Would there be competing bills, one for each side? (I imagine there would.) Different bills in the House and the Senate? How do those get started? What process do they go through before they come to a vote? How rapidly could all of this unfold, presuming there is a compelling reason for trying to make it happen quickly? How would Congress deal with there being two bills in direct opposition to one another, if that’s actually what would be going on? What effect would the ongoing legal brangle have on the legislative process? (The lawsuit being settled in favor of “yes, it applies” could theoretically render unnecessary any change to say that yes, it applies, but Congress is now worried about the possibility of Ambiguous Situations C, D, E, and everything else they can think up. And if the lawsuit gets settled the other way, the side that wants Ambiguous Situation B covered could say “well, we just changed the law, and this version definitely applies.”)

I know only slightly more than zilch about the legislative process in this country, so this is one of those “talk to me like I’m five” questions. I need to know the procedure here before I can judge what it would do to the rest of the story.

Originally published at Swan Tower. You can comment here or there.

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From:sandmantv
Date:January 21st, 2014 08:18 am (UTC)
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This is a fairly interesting question, and common, for negotiating theory. I’m assuming for the sake of this conceit that the ruling is legitimately ambiguous.

One frequent outcome is that the two partisan sides would work NOT to pass any law or even show interest in it. Why? Because to want to pass such a law would indicate that you believed the current statute did not support you. Whereas by confidently not changing the law, you buttress your argument to the judiciary “the law already means what we want”. And there could be reasons (scope, timing, precedent for similar cases) that a positive judicial ruling is better than a new law.

Another factor would be which political faction controls the relevant judgeship, how biased they tend to act, and how close they are with the legislative leaders. If either party had the chance to stop a law, the party who feels confident in the judiciary allying with them, probably would. How they stopped it would be dependent on the various vetos inherent in that particular legislature (filibuster, committees, the Speaker not bringing the bill to the floor, divided Houses, etc.)

Basically, in an actual partisan environment (ie, modern America, or any European parliament, but NOT pre-1970's America), I'd be very doubtful of such a law getting passed.

It's also worth noting that you only get strong judiciaries in diffuse governments. If this legislature was a one chamber Parliament, with very few veto points for the minority, it's unlikely there is a supreme court that can actually have significant impact on major bills.

What would the legislative maneuvers be? Well one side would propose a pro-bill, possibly allowed in by both leaderships, and then the anti-side would propose an amendment to that bill, that says basically “now this bill does the opposite”. And the real vote would be on that amendment (or whether the leadership allows that amendment to come to a vote.)

Any major court ruling in this country would almost certainly have other impacts and precedents (and be faster than the legislative process), so there would continue to be a lot of effort spent on the case, no matter how the legislature looked likely to act.
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From:swan_tower
Date:January 21st, 2014 08:36 am (UTC)
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One frequent outcome is that the two partisan sides would work NOT to pass any law or even show interest in it. Why? Because to want to pass such a law would indicate that you believed the current statute did not support you. Whereas by confidently not changing the law, you buttress your argument to the judiciary “the law already means what we want”. And there could be reasons (scope, timing, precedent for similar cases) that a positive judicial ruling is better than a new law.

That makes sense, but I don't think they would go that route in this instance. Camp "Yes, It Applies" wouldn't want to sit around waiting for the legal case to be settled, because they believe there's a potential for Bad Things Happening every minute the law goes unapplied. Camp "No, It Doesn't Apply" knows that carrying out the law on Ambiguous Situation B is not a reversible process, so passing an amendment after the decision comes down would potentially be too late. (It would help any future instances, of course, but not the one that started this whole mess.)

I also need to look into how the legal side would play out, but I'm trying to tackle one thing at a time, here.
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From:bryant
Date:January 21st, 2014 01:16 pm (UTC)
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The legal brangle is the quickest way to get it settled. Case law/precedent has legal force, and the principle of stare decisis means that judges are required to respect prior decisions. Consider the number of states which have same-sex marriage due to lawsuits -- same thing. In those cases it's a combination of two laws causing ambiguity (law one says same-sex marriage is illegal, but the constitution says you can't discriminate), but the principle is the same.

I agree that the parties might want to get laws rammed through but it's still not necessarily faster, I think you could take, say, the saga of same-sex marriage in California might be a good model for how laws and lawsuits would interact.
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From:(Anonymous)
Date:January 21st, 2014 01:20 pm (UTC)
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This shows how much one learns when one takes Government by correspondence :-)
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From:jeditrilobite
Date:January 21st, 2014 03:54 pm (UTC)
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It's a little easier to break this into a tangible example. Topix X = Class of Drugs. The law states that these substances are forbidden. Your situation B arises when there's a potential health benefit for these drugs, and there's people who want to use them for this purpose.

This will be a very granular sort of thing: there's lots of people who rightly think that these substances should be banned: there's plenty of examples that have led to the law in the first place. You'll likely have two things happen:

1) You'll have a push on the legislative side for the law to be amended and updated to take into account these instances (let's ignore the devoted folks who say that there should be no law altogether.) This will come up against resistances from the folks who firmly believe in the law, and there'll be some sort of debate.

2) You have some of your folks who would benefit from the substance take their issue through the court system, which will interpret the guiding principles which support the laws and see if the law should in fact be upheld, amended, or struck down altogether.

You'd also see all manner of people petitioning the Executive Branch to do *something*. They can certainly work within their limits, but they're also the ones responsible for enforcing the law. In our real world example, we've seen the feds actually stop prosecuting folks in some instances, but this isn't really a lasting strategy - it only lasts until another administration comes and changes it.

The most effective instance is to demonstrate that the law is unconstitutional in some manner, which will then help change the law.
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