Let me put the argument in terms of the babysitter analogy the court likes so much.
Yes, generally we would assume that a babysitter who is generally told 'have fun this weekend with the kids' isn't granted authority to take them out of town without parental approval. Fair enough and at that point I agree we are just infering parental intent.
But now imagine that the two parents have a debate **in front of** the babysitter as to whether they should authorize the babysitter to go on a road trip with the kids. The parents can't agree and decide to simply issue no directive either way to the sitter. At that point we've cancelled out the intent issue.
It makes sense as a matter of policy to say that the babysitter still shouldn't go out of town with the kids. However, if they have the same disagreement as to whether they should direct the sitter to always put the kids to bed by 8 it is reasonable to say this is within the discretion of the sitter -- though with the knowledge that some parents have a strong preference. However, you can't explain that difference merely by appealing to intent. It requires a background judgement that going out of town is different than staying up till 8:30
Thank you Prof. McConnell, for the nuanced critique of Justices Barrett and Gorsuch's concurrences. I'm with Gorsuch on this one. Congress needs a "nudge" (or maybe a shove) in the direction of duty and responsibility. If they want the Executive Branch to enact taxes (or remove foreign nationals who have legally applying for residence or asylum) then they should have to explicitly say so by putting it into law. Congress in the lawmaking body. It's their duty.
I don't see how you can both claim it is "a nudge to congress" and that it is doing nothing more than helping to determine congress's intent?
I'm not convinced that much turns on this but we know that as a matter of real politics making congress say things explicitly makes them harder to accomplish. If you say that Congress must make an explicit statement you need a majority who is prepared to stand behind that statement. If you can leave it ambiguous then both sides can stand in front of the cameras and say they believe the legislation will work the way they prefer.
And I think we know in a lot of cases this is exactly what happens. It doesn't require some weird case, just a situation where it was clear that congress explicitly debated giving an agency a certain power and ultimately choose to exclude the language both explicitly denying it or granting it. If it is merely a matter of congressional intent the very fact they explicitly choose not to adopt the rule gives the game away.
Legislation is ultimately about compromise and often the most appealing compromise is simply to leave the question unanswered and kick it down the road to be resolved by later political machinations. Say you can't reach agreement on whether the EPA should have the power to regulate only local pollutants or also be able enact a comprehensive carbon emissions control. One option is to leave the statute vague with both sides thinking: in the future it will be more clear that my view of the better policy will become popular and that will put a thumb on the scale for the legal question to be resolved in my favor (we know that whatever the theoretical commitments judges on the fence will prefer to not do something that seems harmful).
Really interesting, and I can only imagine the long-tail of laws that Gorsuch thinks are not sufficiently clear.
I'm not a fan of how Gorsuch points to Barrett's use 'external norms' as a problem for the MQD, when I'm not sure how you evaluate any part of the other MQD requirements without similar norms.
A restaurant has a bowl of mints by the exit. Barrett says you can take a mint, but it'd be theft if you steal the whole bowl (because of norms). Gorsuch says it'd be theft if take a single mint (unless there's a sign by the bowl explicitly telling you take a mint).
If you assume Congress generally intends to maintain separation of powers don’t those become same thing? Need clear intent to get to result otherwise violating separation.
Let me put the argument in terms of the babysitter analogy the court likes so much.
Yes, generally we would assume that a babysitter who is generally told 'have fun this weekend with the kids' isn't granted authority to take them out of town without parental approval. Fair enough and at that point I agree we are just infering parental intent.
But now imagine that the two parents have a debate **in front of** the babysitter as to whether they should authorize the babysitter to go on a road trip with the kids. The parents can't agree and decide to simply issue no directive either way to the sitter. At that point we've cancelled out the intent issue.
It makes sense as a matter of policy to say that the babysitter still shouldn't go out of town with the kids. However, if they have the same disagreement as to whether they should direct the sitter to always put the kids to bed by 8 it is reasonable to say this is within the discretion of the sitter -- though with the knowledge that some parents have a strong preference. However, you can't explain that difference merely by appealing to intent. It requires a background judgement that going out of town is different than staying up till 8:30
Thank you Prof. McConnell, for the nuanced critique of Justices Barrett and Gorsuch's concurrences. I'm with Gorsuch on this one. Congress needs a "nudge" (or maybe a shove) in the direction of duty and responsibility. If they want the Executive Branch to enact taxes (or remove foreign nationals who have legally applying for residence or asylum) then they should have to explicitly say so by putting it into law. Congress in the lawmaking body. It's their duty.
I don't see how you can both claim it is "a nudge to congress" and that it is doing nothing more than helping to determine congress's intent?
I'm not convinced that much turns on this but we know that as a matter of real politics making congress say things explicitly makes them harder to accomplish. If you say that Congress must make an explicit statement you need a majority who is prepared to stand behind that statement. If you can leave it ambiguous then both sides can stand in front of the cameras and say they believe the legislation will work the way they prefer.
And I think we know in a lot of cases this is exactly what happens. It doesn't require some weird case, just a situation where it was clear that congress explicitly debated giving an agency a certain power and ultimately choose to exclude the language both explicitly denying it or granting it. If it is merely a matter of congressional intent the very fact they explicitly choose not to adopt the rule gives the game away.
Legislation is ultimately about compromise and often the most appealing compromise is simply to leave the question unanswered and kick it down the road to be resolved by later political machinations. Say you can't reach agreement on whether the EPA should have the power to regulate only local pollutants or also be able enact a comprehensive carbon emissions control. One option is to leave the statute vague with both sides thinking: in the future it will be more clear that my view of the better policy will become popular and that will put a thumb on the scale for the legal question to be resolved in my favor (we know that whatever the theoretical commitments judges on the fence will prefer to not do something that seems harmful).
Courts cannot interpret statutes based on guesswork about thectrue legislative intent
Really interesting, and I can only imagine the long-tail of laws that Gorsuch thinks are not sufficiently clear.
I'm not a fan of how Gorsuch points to Barrett's use 'external norms' as a problem for the MQD, when I'm not sure how you evaluate any part of the other MQD requirements without similar norms.
Is this the right analogy?
A restaurant has a bowl of mints by the exit. Barrett says you can take a mint, but it'd be theft if you steal the whole bowl (because of norms). Gorsuch says it'd be theft if take a single mint (unless there's a sign by the bowl explicitly telling you take a mint).
If you assume Congress generally intends to maintain separation of powers don’t those become same thing? Need clear intent to get to result otherwise violating separation.