The Idea of Congressional Intent is Incoherent

by on July 25, 2014 at 7:23 am in Economics, Law, Political Science | Permalink

Now seems like an apposite time to remember, Congress intends no more than Congress smiles. As Ken Shepsle put it in his classic paper Congress is a “They,” not an “It”:

Legislative intent is an internally inconsistent, self-contradictory expression. Therefore, it has no meaning. To claim otherwise is to entertain a myth (the existence of a Rousseauian great law giver) or commit a fallacy (the false personification of a collectivity). In either instance, it provides a very insecure foundation for statutory interpretation.

Shepsle’s point is that Arrow’s impossibility theorem shows that not only do collectives not have preferences they can’t even be understood as if they had preferences. As I wrote earlier:

Suppose that a person is rational and that we observe their choices. After some time we will come to understand their choices in terms of their underlying preferences (assume stability–this is a thought experiment).  We will be able to say, “Ah, I see what this person wants. I understand now why they are choosing in the way that they do.  If I were them, I would choose in the same way.”

Arrow showed that when a group chooses, there are no underlying preferences to uncover–not even in theory. In one sense, the theorem is trivial. We know or should always have known that a group doesn’t have preferences anymore than a group smiles. What Arrow showed, however, is that without invoking special cases we can’t even rationalize group choices as if leviathan had preferences.

Put differently, if we do try to rationalize a leviathan with preferences and intention we will find that such a leviathian has the preferences and intention of a madman. Quoting Shepsle again:

…the Hart and Sacks (1958) notion that legislation should be treated as the result of “reasonable people pursuing reasonable purposes reasonably” is insufficient. Even if we do adopt this posture, even if legislators are the kinds
of reasonable people Hart and Sacks envision, it is still fruitless to attribute intent to
the product of their collective efforts. Individual intents, even if they are unambiguous,
do not add up like vectors. That is the content of Arrow; that is the malady of
majority rule….

…The courts cannot defer to something that is nonsense.

By the way, if legislative intent was nonsense in 1992 when Shepsle wrote, then today, when Congress is more divided than ever, it is nonsense on stilts.

Addendum: Zywicki and Stearn’s excellent book, Public Choice Concepts and Applications in Law has a good discussion of the issue and some of the alternative methods of interpreting a statute. One might begin with Holmes statement, “We do not inquire what the legislature meant; we ask only what the statutes mean.”

FreeDem July 25, 2014 at 7:28 am

And yet a significant share of the Supreme Court believes that it’s possible to decide the intent of the original authors of the Constitution, even though that too was legislating by committee.

How often do people pull out a copy of the Federalist Papers to argue that the “Founding Fathers” meant A or B, when the Federalist Papers are nothing more than the equivalent of today’s 30 second TV ad trying to persuade voters?

rpl July 25, 2014 at 8:04 am

That was my first thought on reading this piece too. Furthermore, to invoke Arrow’s theorem in the case that Alex is alluding to (but for some reason won’t come right out and name—maybe he caught a case of Straussianism from Tyler?) is pure sophistry, since the interpretation proffered by the DC circuit was neither intended, nor even contemplated, by any of the legislators that voted for it.

Basically, the DC circuit is acting like one of the genies in the old fairy tales, who would twist the words of careless people to give them precisely the opposite of what they asked for. If you think that that’s a good way for jurists to operate, then you should consider that they can use that discretion to come up with rulings that you don’t like just as readily as ones that you do. Furthermore, if that’s how we’re going to do things, then let’s hear no more whinging about how lengthy and complex the laws and regulations have become. Most of that verbiage comes about to head off perverse interpretations in courts, and shenanigans like this are only going to increase the tendency.

conor July 27, 2014 at 4:31 am

the interpretation proffered by the DC circuit was neither intended, nor even contemplated, by any of the legislators that voted for it.”

This seems demonstrably untrue. The intent of withholding federal subsidies in order to force states to adopt exchanges was widely discussed at the time, which is what the whole Gruber fracas is all about. So we know at least some legislators intended exactly what the text says. In hindsight it was poor strategy, but should we not have at least some deference to the text of a law when it’s not purely a typo issue? Too much interpretation by courts is surely not a good thing if the rule of law is the objective.

Art Deco July 25, 2014 at 8:23 am

And yet a significant share of the Supreme Court believes that it’s possible to decide the intent of the original authors of the Constitution, even though that too was legislating by committee. -

And in lieu of that, you people substitute the contemporary intent of Anthony Kennedy. Thanks for nothing.

FreeDem July 25, 2014 at 9:13 am

You people?

What the fuck.

Art Deco July 25, 2014 at 8:26 am

And yet a significant share of the Supreme Court believes that it’s possible to decide the intent of the original authors of the Constitution, even though that too was legislating by committee.

While we are at it, no. There are shades of difference in interpretive strategies between Bork, Thomas, Scalia, et al, but their point is that constitutional language is binding and that the original understanding of that language is discoverable. Their opponents fancy that capital punishment is ‘unconstitutional’ even though explicitly regulated in several provisions.

FreeDem July 25, 2014 at 9:13 am

“original understanding of that language is discoverable”

Same problem with legislative intent. Discoverable is in the eye of the beholder.

albatross July 25, 2014 at 10:34 am

Well, if the constitution and a federal death penalty have coexisted for a couple centuries, it’s really hard to work out how the meaning of the words of the constitution could have changed to ban the death penalty now. If everyone up until now has thought the constitution meant X, then that ought to make you at least very skeptical that it really means Y, but we’ve only now discovered this fact.

But that assumes that the SC is engaged primarily in legal reasoning. I imagine they are in most cases, but in the politically loaded cases, they’re just nine permanently appointed politicians deciding on what policies they prefer.

The example that jumps out at you is the constitutionality of anti-sodomy laws. In a 20 year span, the supreme court discovered, first, that the wording of the constitution permitted such laws, and later, that the wording of the constitution forbade them, despite no change at all in the constitution. The policy outcome there was good–jailing people for buggering one another was a really stupid idea–but there’s no way this was anything other than the justices deciding what policy they thought we should follow, and then backfilling the legal reasoning.

wait July 25, 2014 at 11:21 am

“Well, if the constitution and a federal death penalty have coexisted for a couple centuries, it’s really hard to work out how the meaning of the words of the constitution could have changed to ban the death penalty now. If everyone up until now has thought the constitution meant X, then that ought to make you at least very skeptical that it really means Y, but we’ve only now discovered this fact.”

The death penalty for people who committed crimes when under the age of 16 was in place for over a century. Is it that hard to work out how that could be considered cruel and unusual even though it hadn’t been considered that way in the past?

Thomas July 25, 2014 at 5:03 pm

See herein Democrats turn to nihilism as it is decided that ACA isn’t writ maximus for President Obama to direct national healthcare by whim. If we can’t assume A to be B, then we can’t assume A to be A, either.

HoratiusZappa July 27, 2014 at 10:17 am

“original understanding of that language is discoverable”

It is not subject to observer bias. The point is that we can determine, for example, what “well-regulated” or “gay” meant in 17xx as opposed to what it means in 2014 when someone utters or writes it. Words and expressions have contemporary meanings for any point in time, but they can shift over time. For that reason (evolution of language), it is incorrect (pointless, really) to interpret laws without interpreting the language in which they were written. Otherwise a law may become, through no fault of its own, absurd.

mulp July 25, 2014 at 4:11 pm

“…the original understanding of that language is discoverable.”

Whose understanding, precisely?

Were all the State legislators who ratified the Constitution and amendments in common agreement in all points of understanding???

How about the claim that it was not the intent of those writing the 14th to give citizenship to the children of illegals when none had every contemplated any restriction at all on immigration making the concept of “illegals” incomprehensible?

Given the words in the Constitution, the promotion of immigration to the USA that was well known for decades, the lack of any laws “securing the borders”, how can any restrictions on crossing the boarders be something consistent with the understanding of the Constitution by those drafting and ratifying it?

It is absolutely clear that citizenship was totally separate from a right to be in the USA or having rights “from god” prior to the 14th.

ladderff July 25, 2014 at 8:28 am

Tu quoque, and an embarrassing one at that.

FreeDem July 25, 2014 at 9:13 am

It’s not an attempt to invalidate his argument by claiming there’s hypocrisy. It’s demonstrating the almost impossible task of determining intent on all sides.

ladderff July 25, 2014 at 9:32 am

But that is wrong too, there being a difference between “intent” and “meaning.”

(Not That) Bill O'Reilly July 25, 2014 at 9:13 am

Hardly–“original intent” hasn’t been in vogue since the early 1980’s.

The strain of originalism practiced by Justices Scalia and Thomas (whom I presume to be the object of your ire) is sometimes distinguished as “original understanding” or “original public meaning”; the central interpretive question is “What would an average reader familiar with the language have thought these words meant at the time they were written?” For example, even if there were incontrovertible evidence that drafters A, B, and C intended the Necessary and Proper clause to give Congress plenary powers (an argument recently made by Georgetown Professor John Mikhail), neither Scalia nor Thomas would accede to such an interpretation of the clause in the absence of evidence that an average individual would have understood the actual language to carry such a meaning.

FreeDem July 25, 2014 at 9:15 am

But based on what? The interpretive question of understanding of public meaning too often depends on what today would be understood to be First Amendment claims within political ads.

Depending on the Federalist Papers is like depending on Obama’s claim that if you like your insurance you can keep it in order to determine legislative intent.

(Not That) Bill O'Reilly July 25, 2014 at 9:26 am

Let’s flip the question–what do you base your interpretation of legislative intent on? What a random representative said in front of an empty chamber? The language that a crafty staffer entered into the congressional record a few days later? Because that kind of cherry-picking is what usually ends up serving as proof of intent. See, e.g., Victoria Nourse, “A Decision Theory of Statutory Interpretation:
Legislative History by the Rules,” 122 Yale L.J. 70(2012).

FreeDem July 25, 2014 at 11:40 am

You’re exactly right. That’s how it’s done. But that’s being descriptive, not prescriptive, on what a system ought to be.

dearieme July 25, 2014 at 11:18 am

“an average individual”: but excluding women, blacks and Injuns, I trust?

Douglas July 26, 2014 at 11:44 am

This isn’t my field, and I’m not going to study it in much depth. But what you’ve written is helpful provided I understand you correctly. My assumption is that you approve of Scalia and Thomas as judges (despite their disagreements at times). Correct?

(Not That) Bill O'Reilly July 26, 2014 at 12:27 pm

Scalia moreso than Thomas, but yes; I am an originalist in terms of constitutional interpretation.

(Not That) Bill O'Reilly July 26, 2014 at 12:39 pm

If it’s something you have any curiosity to learn more about, Justice Scalia published a book in 1997 called “A Matter of Interpretation” that briefly spells out and argues for his vision of originalism/textualism. It’s very short (~150 pages excluding notes and acknowledgements, the last ~50 of which are a back-and-forth on the main text between Scalia and Robert Dworkin).

Andrew' July 25, 2014 at 9:14 am

This is not quite accurate.

They are trying to figure out what the law means. To do that they use a lot of resources.

It is more that what we know the law doesn’t mean is what the people who made the law thought it didn’t mean.

Andrew' July 25, 2014 at 9:15 am

This is why it is useful, if not definitive, to have Jonathan Gruber on video telling us what he thought the law meant.

FreeDem July 25, 2014 at 9:17 am

What’s fascinating is that the video has only come out now. And it’s hard to jump from the video to legislative intent, given that he’s not a member of Congress.

A problem is that there are hundreds of years of judicial deference to legislative intent based on floor debate and report language in bills. To have a tongue in cheek claim that legislative intent is impossible upends the entire system. Our system is built around legislative intent. Doing away with that is a significant change.

Andrew' July 25, 2014 at 9:32 am

I don’t think anyone is saying that we aren’t still stuck with trying to make crappy laws workable by some means.

But if I agree to something I’m being held hostage over that also doesn’t mean it was my intention to get it.

Andrew' July 25, 2014 at 9:39 am

I’m not making a comment on the video, I was using it as an analogy.

If I were to comment on the video, I think the issue is the opposite. I think people are claiming that the law (clearly) intended one thing when the text says something else.

The point of the video is to show that it’s not so clear.

(Not That) Bill O'Reilly July 25, 2014 at 9:43 am

“A problem is that there are hundreds of years of judicial deference to legislative intent based on floor debate and report language in bills.”

Not quite; although I will readily concede that courts have almost always looked to purpose and intent, the use of floor statements and committee reports is a comparatively recent phenomenon (I actually spent last summer coding founding-era opinions for interpretive methods, and purpose and intent were generally drawn from the statute itself or the extrinsic conditions that led to its passage, not the isolated statement of a single legislator).

Cowboydroid July 25, 2014 at 10:24 am

That it’s a significant change doesn’t mean it shouldn’t happen. What would be more absurd, as Alex pointed out, is keeping the system in its current function.

mulp July 25, 2014 at 6:22 pm

An interpretative statement made in 2012 defines the intention of the authors of the wording that was crafted in 2009 to confuse the members of Congress who voted on the law in 2009??

Was this interpretation kept secret until 2012 to ensure that the States and HHS did not write contracts that explicitly stated the State exchange implementation was contracted to CMS. Then the number of States without State exchanges would be much smaller and the subsidy could have been terminated in the 20 States refusing to implement it with the rich in those States paying taxes to help pay for it in the other 30 States based on their wealth flowing in part from the higher corporate profits in the 30 States with more money flowing through the health care industry coffers.

That would be a great experiment in seeing of the smaller government in the 20 States results in lower income inequality from higher growth and higher wages that follow from very low unemployment. Of course, given a number of States have long met that condition, the States of Alabama and Texas and Mississippi should be high real wage States with high mobility and booming economies.

Douglas July 26, 2014 at 11:55 am

Let’s step back a minute. To even pass this was it was necessary to use parliamentary maneuvers that prevented its contents from becoming known. Hence, “let’s pass this law so we can see what’s in it.” I don’t see how anyone can even talk about intent in this context.

Even this article ignores that.

Benny Lava July 25, 2014 at 9:44 am

Not to mention that a significant portion of the Constituiton, though amendments, was written by Congress.

derek July 25, 2014 at 10:29 am

Slightly different circumstances. The Congress is across the street. If they write something poorly, they can fix it.

Take the 2nd amendment. The meanings of the words have historical context. The weaponry, the living circumstances, the defense arrangements for security etc. all had meaning and contexts that would have been clearer at the time. To try to figure that out is not to get into the minds of the framers, it is simply to understand what they meant.

wait July 25, 2014 at 12:07 pm

“The meanings of the words have historical context. The weaponry, the living circumstances, the defense arrangements for security etc. all had meaning and contexts that would have been clearer at the time. To try to figure that out is not to get into the minds of the framers, it is simply to understand what they meant.”

All of this can be applied to Congress. Who cares if they can fix it or not? The question is can we know their intent. Whether they can fix things post hoc has no bearing whatsoever on that question.

Adrian Ratnapala July 25, 2014 at 2:43 pm

It bears tremendously. Congress writes a law, and then it is supposed to become law, subject to the constitution. Now the executive branch comes along and says “you didn’t intend that”, never mind what you wrote. This takes power away from congress, and hands it to whoever is making claims about intentions. On the other hand, if congress accidentally writes a law it didn’t intend, it can write an amendment itself.

wait July 25, 2014 at 3:08 pm

You misunderstand me. I’m not arguing that point. All I’m arguing is that it’s also impossible to know the intent of the framers of the Constitution. My main gripe with your argument was that it suggested it’s okay for us to figure out the intent of the framers because they’re not here to correct themselves.

But to play devil’s advocate on your Congress/amendment point:

Your argument, correct me if I’m wrong, seems to be that because Congress can correct itself we shouldn’t have other people determining what it did or did not intend. This is not a good argument. For one thing, the composition of Congress changes every two years. For another thing, one could easily imagine a scenario where Congressman X intends one thing when he votes for the bill, the ambiguity then arises a few months later in the language in a way that going against his original intent is beneficial to him electorally, he then switches and argues his original intent was actually the opposite of what it actually was. The only way to prevent this kind of pandering is if we had statements on the record at the time of the vote from every single Congressman about what every single phrase was meant to intend.

If you ask Congress now what it meant four years ago, it is taking away power from the Congress four years ago. Either way you are taking away power. So why don’t we have an unbiased third party arbiter gather all the documents and evidence of statements and things on the record from the time the vote was taken and try to figure out the intention? Judges have to do this all the time because of the number of ambiguities present in laws Congress writes. It’s just what happens when there are thousands of pages of text. It is much quicker for a judge to evaluate the ambiguity then to have all of Congress vote again on a clean bill explaining its original intent (the bill would never be clean because we know how Congress works). If the judge is wrong, then Congress can correct him.

All that said, I don’t necessarily agree with this approach, nor am I confident a third party would be better equipped (or at least more efficient) in handling these ambiguities.

derek July 25, 2014 at 9:25 pm

Congress is elected every two years to legislate. If it isn’t clear, the other branch should throw it back to them for clarification or rewriting. It isn’t the place for the courts to legislate, with the added benefit that it imposes a certain standard on the legislative branch.

That can’t be done with the constitution.

JKB July 25, 2014 at 1:03 pm

Well, the Federalist Papers, just as the Congressional Record records, are the arguments by those that wrote the document explaining and seeking to convince those who will vote on the meaning of various passages. Therefore, you can determine the public intent of the authors and the understanding of that intent at enactment. Statements outside the record and statements made after passage have no bearing as they are not presented for the meeting of the minds that caused passage. Even then, the debate cannot substantially alter the plan language. It can only help inform judicial interpretation of ambiguous passages.

Unfortunately, the ACA was enacted in such a manner as to not create a substantial Congressional Record for use in interpretation. After the fact, statements on the record or not are not valid for interpretation. Just as they would not be valid in interpreting the language of a contract.

Alex July 25, 2014 at 7:30 am

If the Supreme Court has asserted anything in tees past few years, it’s that collectives apparently do have preferences, biases, and even beliefs that will be protected separate from the individuals that run the org.

Wonks Anonymous July 25, 2014 at 9:55 am

One of Arrow’s conditions is that there is no “dictator” who can make decisions unilaterally, which would result in collective decision-making reduce to that of the individual dictator. Most of the organizations you are thinking of violate that condition, they do have executives who can make such decisions (even if they might also have boards which could remove the executive).

Cowboydroid July 25, 2014 at 10:26 am

And the Supreme Court is committing an exercise in absurdity, falling for the same fallacy to which every economic illiterate succumbs.

RZ0 July 25, 2014 at 7:40 am

And yet my local craft shop can have a religion.

prior_approval July 25, 2014 at 8:16 am

That is a small corporate group – they can have intent, and legal representation too.

And of course, a corporation is not a group of people, it is a person in its own right.

wait July 25, 2014 at 12:17 pm

“That is a small corporate group.” What does that even mean? It’s still made up of individuals.

“They can have intent, and legal representation too.” Well whether they can have intent is the question. A corporation can have legal representation. So can the federal government. Being able to have legal representation does not mean an entity can have intent. An entire state, hell even an entire country, can have legal representation.

“And of course, a corporation is not a group of people, it is a person in its own right.” Under certain legal circumstances a corporation is a person (and in certain others it is not; see, e.g. the protection against self incrimination). This has nothing to do with how Arrow’s theorem applies to corporations.

prior_approval July 25, 2014 at 3:17 pm

‘It’s still made up of individuals.’

As is any group.

‘Well whether they can have intent is the question’

To quote Justice Alito – ‘…the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.’ http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf

‘Being able to have legal representation does not mean an entity can have intent.’

But as noted immediately above, a group of owners provides a corporation free exercise rights in order to protect religious liberty – and one would assume that religion is bound with intent (such as keeping employees or owners from sinning).

‘Under certain legal circumstances a corporation is a person’

Which, according to a recent opinion of the U.S. Supreme Court, also has the right of free exercise.

Adrian Ratnapala July 25, 2014 at 9:00 am

This is very insightful. It brings up the important point that the argument which exempted a craft shop from a particular executive regulation was based on the claim that laws regulating companies bind the individuals who own those companies.

Now who owns the Legislature? Is it the President? Is it the IRS? Is it the Democratic caucus? Or is it the legislature itself?

In the case of Halbig, the legislature can always pass a law to amend the text which it finds faulty. Do you believe that the congress is unlikely to pass any such amendment? Is it your claim that the intent of the legislature is to do the very same thing that you believe the legislature would refuse to do?

Plaza July 25, 2014 at 9:36 am

This is what I’m wondering!

Is it silly to suggest that the people own the legislature?

Cowboydroid July 25, 2014 at 10:27 am

There is no property right in a legislature, unless you think legislators – human beings – are property.

Adrian Ratnapala July 25, 2014 at 12:14 pm

I agree with Cowboydroid, perhaps in Switzerland, the people “own” the legislature. But I don’t think that is really a helpful way of seeing things.

If a rough consensus of Congressmen all agreed the ACA meant one thing, then we could say that they collectively “intend” something. And they could signal this by passing an amendment. Just as the owners of Hobby Lobby could change their mind about contraception and signal it by signing a different insurance contract.

Andrew' July 25, 2014 at 9:46 am

It’s more like they don’t not have a religion.

derek July 25, 2014 at 9:27 pm

Congress could fix that in a moment, except that they couldn’t pass it, and ACA probably wouldn’t have passed if they had included it.

Sam July 25, 2014 at 7:40 am

Then with what do we pave the road to hell?

Adam J Calhoun July 25, 2014 at 7:57 am

I make decisions based on a large group of neurons. Does that mean I have no coherent intent (probably true, if you’ve met me)?

K.R. McKenzie July 25, 2014 at 9:14 am

That is exactly correct. Neuroscience has pretty much destroyed the idea of a “self” even though that’s the narrative we still use. There was a bunch of writing about the implications this would have for the law about 5 years ago, but nothing has really come of it.

K.R. McKenzie July 25, 2014 at 9:16 am

And now looking at your link, you would know much more about this than I would…

Pensans July 25, 2014 at 8:02 am

Yeah, Germany didnt intend to invade Poland becayse Arrow theorem. What crap.

Andrew' July 25, 2014 at 9:25 am

There were also many false flags in the course of Nazi development. The Holocaust itself could be viewed as part of a false flag operation.

This isn’t quite a false flag, but does it sound spookily familar to you?
http://en.wikipedia.org/wiki/Tarn%C3%B3w_rail_station_bomb_attack
“It was probably through this agency that he was persuaded to carry out the attack. He left two suitcases packed with explosives in the luggage hall and went to a platform to wait for a night Luxtorpeda train from Krynica, via Tarnów, to Kraków, which, according to the schedule, would leave at 23:02. It is probable that Guzy had no idea when the bomb would explode. He had a beer in the station restaurant, before taking a slow walk around the station. When the explosion happened, the saboteur, together with other people, ran away in panic. Reportedly, his German principals wanted him to die in the attack.”

Leif July 25, 2014 at 11:15 am

Yes, this is exactly right. It’s always useful to remember that when we say Germany invaded Poland what we mean is that some individuals made decisions and gave orders to other individuals, often on pain, of death, to take actions. Most individuals had no role in the decision at all.

Brian July 25, 2014 at 8:05 am

While Arrow demonstrates that a body of individuals cannot have positive intent, it seems entirely sane to say that NO ONE in that body had that intent. This seems to be the argument that is being put forward, and seems coherent.

Z July 25, 2014 at 8:23 am

If I could go back in time, I’d strangle Jacques Derrida before he could unleash this nonsense on the world.

Jan July 25, 2014 at 8:28 am

This whole thing is ridiculous in the context of regulations, which must be written to implement most laws. An understanding of congressional intent is necessary for pretty much any policy. If not, agencies would be calling all the shots. It’s unreasonable for Congress to articulate every nuance in statute.

If ya can’t legislate, litigate!

Lonely Libertarian July 25, 2014 at 9:06 am

Problem is that is exactly what we are reduced to. Congress is Constitutionally required to LEGISLATE. Instead it writes bills were they EXPLICITLY defer to the Executive agency. I have been writing to my reps for more than ten years about this. Obamacare has, I believe several HUNDRED – “as determined by the Secretary” instances.

Defaulting on their responsibility is not just wrong – it is unconstitutional IMHO.

Jan July 25, 2014 at 9:23 am

In some cases, I agree. However, Congress rarely has the expertise and resources to know enough to put every important detail into the law. For example, most members have maybe a couple staff who work on heath care issues, but there are often federal agencies with hundreds of staff who have deep expertise and experience on the relevant topics. Also, the rule making process allows a drawn out period of public input in a transparent way so that the agencies can make absolutely sure they understand stakeholder opinion and the impact of the regulations before the implement them. A second reason Congress defers to agencies is because the world evolves and it often makes more sense to accommodate that through updated regulations (which are still quite a process) than through serial changes to the law.

Lonely Libertarian July 25, 2014 at 10:13 am

We agree in theory – but my point was/is that the deferral to agencies is unconstitutional – address and fix that first.

We used to do things like the ACA differently – hearings would be held on important topics – both in DC and around the country…

Had we had hearings, at least the following would have had some discussion before being crammed down our throats…

1. Do we REALLY want to hurt part time workers – would 32, 35, 38 or even 40 hours a week be a better threshold.

2. How do we apply this law to seasonal/migrant workers – many of whom live on cash – or do we explicitly exempt them…

3. Do we want all plans to be so robust and why – could we accommodate plans of limited scope for the low income 40+ group.

4. Do we find better ways to reduce ER as primary option – more use of walk in clinics.

5. Do we really understand why so many eligible for Medicaid have not signed up.

6. And this is a biggy – how many uninsured are really just between jobs with insurance – do we need “gap” policies that get them from job to job

And a lot more.

But political necessity meant we had to pass the bill so we could find out what was in it…

Shame on all of us for tolerating this crap

John Smith July 25, 2014 at 3:42 pm

Very well said.

Cowboydroid July 25, 2014 at 10:31 am

If Congress doesn’t have the expertise and resources to legislate explicitly, then why the hell are they legislating on these subjects? And where do they get the idea that they can even capably defer judgement to an unelected bureaucrat?

Is Congress abdicating rule to a group of unelected technocrats who shall plan our lives for us as they see most fit?

Jan July 25, 2014 at 10:58 am

The world is complex and the amount of information and data available to inform decisions has grown exponentially. It comes down to allowing people with the expertise to work out the tiny details sometimes–because it is that or have a Congress that is totally incapable of addressing all the needs of the country because they are in the weeds. Congressional oversight authority allows them to rein in these agencies if they step out of line, which they do all the time.

John Smith July 25, 2014 at 3:45 pm

The IRS recently lost some emails, maybe you could help them look when you’re not doing your standup.

Jan July 25, 2014 at 4:05 pm

JS. You have no substantive response.

Thomas July 25, 2014 at 5:13 pm

‘tiny details’. Jan, you have nothing worth responding substantively to.

Jan July 25, 2014 at 6:10 pm

He has no argument. It might as be “IRS! Computers! Fraud! I win! Issa, out!” Have Congress legislate every detail of every thing government has been charged with doing. It is idiotic.

Thomas July 25, 2014 at 9:20 pm

‘Tiny details’ simply informs us of your opinion of the value of your political detractors. Having Congress legislate everything may be idiotic (and I happen to agree), but having Congress create blank checks for the executive branch is reprehensible. I suspect you’ll agree with me in 2013.

chuck martel July 25, 2014 at 9:54 pm

“The world is complex and the amount of information and data available to inform decisions has grown exponentially.”

The congress and government agencies are what has made the world, for Americans, complex. Their byzantine tax codes, securities rules, agricultural policies, employment regulations and on and on are efforts to solve perceived problems with increased layers of complexity that they must then address with further layers of complexity.

Brett Dunbar July 25, 2014 at 5:57 pm

They are legislating. The primary legislation sets out the basic framework and secondary legislation sets out the detailed regulation. The secondary legislation has to be within the scope of the primary legislation. It is also easier to amend and so is an appropriate place for the detailed regulation. The US legislative system is based on that of the UK, the UK made and makes extensive use of secondary legislation and that was clearly intended when the US system was created.

Cowboydroid July 25, 2014 at 10:33 am

You’ve just attempted to argue against the entire notion of the rule of law, and in favor of the type of arbitrary rule-making by autocrats that reigned for millennia prior to the Enlightenment.

Are we really living in “progressive” times?

Jimmy July 25, 2014 at 11:44 am

Well, to be fair, I take Jan to be claiming the rule-making is not “arbitrary” anymore. Progress? But ‘benevolent’ tyranny is still tyranny.

There are some things in Fed 10 I’m inclined to quote about the causes and cures of faction, but apparently no intent can be discerned from those writings.

What I’m not following in this debate is this: If we think that the collective Congress has no intelligible intent when they write laws, why should we think that the Administrative bodies do have intelligible intent when they write regulations?

ladderff July 25, 2014 at 8:29 am

Awful point-missing comments today!

Ricardo July 25, 2014 at 9:09 am

And I was just about to say the opposite!

T. Shaw July 25, 2014 at 8:47 am

Then, thank God America has geniuses like Janet Yellen, Ben Bernanke, and Albert Greenspan running the economy! Their “track records” are so much better than Congress’.

Wonks Anonymous July 25, 2014 at 9:59 am

As crazy as Greenspan appears to be, he really does have a great track record as Fed chairman. 1987 was perhaps the biggest one-day stock decline in history, yet appeared to have no effects on the “real economy”. There’s nothing comparable. That example of Greenspan’s response nullifying a financial nosedive is rather central in Scott Sumner’s argument about the power of the central bank.

Cowboydroid July 25, 2014 at 10:36 am

Greenspan has a terrible track record as Monopolist Money Price Fixer. Sure, monetary inflation produces results in the very short term…but those results are what economists call a Bubble. And what follows a Bubble? Most often a Bust. Greenspan’s monetary policy – The Greenspan Put – lead to moral hazard and massive asset price inflation. We’re still feeling the effects today, and Bernanke and Yellen are only exacerbating it.

T. Shaw July 25, 2014 at 12:19 pm

Alan Einstein started being wrong before you guys were born.

He was a chief cheerleader for the S&L’s as they built up $481 billion in taxpayer losses in the mid 1980’s to 1989.

It’s not his fault that they forget. He won’t remind anybody.

I have long ears and a long memory.

Lonely Libertarian July 25, 2014 at 9:00 am

great post Alex and overall pretty bad comments…

Two thoughts…

1. I have no doubt that one or more of those voting for the bill DID intend for subsidies to go to everyone enrolling in ANY exchange – state or federal.

2. But I also have no doubt that way more than one of those voting for Obamacare intended exactly what Goodman talked about a couple of years ago in the YouTube video recently resurfaced. The THREAT of losing subsidies would coerce ALL STATES into setting up their own exchanges and save the Feds from having to do so. How dare those states – WE the progressive elites know what is best for everyone – and WE will make them do what WE know is best!

Problem is, SCOTUS didn’t like that idea on Medicaid expansion – and my guess is they won’t like it on exchanges either.

BUT – this is not that hard to fix – introduce a bill specifying precisely what you want – subsidies for all and since that was the intent it will fly through Congress and problem solved ;-)

Cowboydroid July 25, 2014 at 10:38 am

I have to agree about the comments. After following the site for over a year now, as well as the comments, I think most readers suffer from a pretense of knowledge, and do not actually subscribe to the same economics as Tyler and Alex.

prior_approval July 25, 2014 at 11:23 am

‘and do not actually subscribe to the same economics as Tyler and Alex.’

Well, I for one most certainly do not subscribe to Prtof. Cowen’s idea ‘My view has long been that most people, if they have the chance, are willing to embrace and also use eugenics, albeit with some reframing and rebranding. Eugenics was a very popular idea with Progressives earlier in the twentieth century, and also with economists (in particular, pdf), and ultimately the Nazi connection will be seen as a bump in the road.’ http://marginalrevolution.com/marginalrevolution/2013/10/further-small-steps-toward-designer-babies.html

I could also note the economics behind the Bartley J. Madden Chair in Economics at the Mercatus Center, but the eugenics quote is from less than a year ago.

Lonely Libertarian July 25, 2014 at 12:45 pm

So why do you keep coming back PA – do you hope to somehow change the minds of either Alex or Tyler – or to provide a reasoned alternative voice..

If it is the later, let me assure you it is not working – and you waste not only your time – but the time of many others.

I personally find nothing wrong or offensive in Tyler’s statement – I do not agree with it and am not a proponent of eugenics. But he is correct – the roots of Planned Parenthood run deep in the eugenics movement of Margret Sanger and other Progressives.

prior_approval July 25, 2014 at 3:25 pm

‘do you hope to somehow change the minds of either Alex or Tyler’

Heaven forfend.

‘or to provide a reasoned alternative voice’

I live in a country which is a reasoned alternative – I’m one of those dedicated believers of ‘America – love it or leave it.’

‘If it is the later, let me assure you it is not working – and you waste not only your time – but the time of many others.’

I enjoy writing the sort of things that any employee even tangentially connected to PR work at GMU knows would lead to problems. But my time is free – unlike when I was paid to write things for GMU.

Ntrust July 25, 2014 at 8:44 pm

Your quote clearly appears to be a prediction about trends in what people will find acceptable, not an endorsement of eugenics.

albatross July 25, 2014 at 10:46 am

The broader problem here is that we really want to fit the world into stories where entities like congress or the Republican party or Starbucks are more-or-less like individuals in their decision-making. But they are a fundamentally different kind of thing. Collectives of various kinds do irrational things (from the perspective of an imagined all-knowing, all-powerful dictator with the interests of the collectgive at heart) *all the time*. Bureaucracies, committees, churches, electorates, markets–all of them make decisions, but none of them think or decide or act like a human, any more than an anthill or the process of evolution among fruitflies think or decide or act like a human. (All give you purposeful-seeming, orderly behavior, and each is much smarter than a human within its domain.)

Our brains are wired (or perhaps taught by bad example) to expect to be able to make up stories where those large organizations act like giant, powerful, long-lived individuals. Where Starbucks is a good corporate citizen and Wal-Mart is a bad one, or where Congress is like an ineffectual, in-over-his-head guy fiddling while Rome burns. And those stories generally lead us astray, because our model of the organizations’ decisionmaking process is all wrong.

libert July 25, 2014 at 9:02 am

A wonderful destruction of originalism!

Justin July 25, 2014 at 9:11 am

In Scalia’s book (A Matter of Interpretation) he goes to great lengths to point out that what is called originalism really should be textualism – basing laws on what the words mean. He is outright contempuous of finding original intent.

Andrew' July 25, 2014 at 9:17 am

It is also missing the point.

The point is that we shouldn’t change what words mean today in order to bend laws into the current desires.

Just change the laws.

Cowboydroid July 25, 2014 at 10:39 am

But it’s hard to get voluntary cooperation to change laws. Much easier to simply involuntarily coerce a different meaning on people.

Lonely Libertarian July 25, 2014 at 12:49 pm

Kinda the same argument the Romans would use to allow a Dictator to make the tough choices during times of war or potential war…

Problem with the “Benevolent” Despot/Monarch/Dictator approach is one man’s “Benevolence” is anthers loss of freedom.

And the BD cannot be voted out of office – they can be stabbed or shot – but that is sooooo not cool.

Damien July 25, 2014 at 12:31 pm

But the same principle applies. If there’s really no such thing as congressional intent because Congress is a bunch of individuals, then why assume that there is a unique meaning that “a reasonable person” would have understood? This person doesn’t exist either, and you have even less information about how the average person would have understood a particular sentence. At least legislative intent is based on actual extent documents.

Imagine we went back to 1789, found a random sample of semi-literate people, and asked them what they believed “Congress shall make no law abridging the freedom of speech” meant. Would they all have agreed about its meaning? I doubt it since there have been controversies regarding how absolute freedom of speech is ever since.

prognostication July 25, 2014 at 1:31 pm

This is probably the best comment on this subject so far.

chuck martel July 25, 2014 at 10:03 pm

What’s “semi-literate” got to do with it if they can speak English? But, in fact, there was great controversy over the Constitution and its meaning from the very beginning. A number of representatives to the convention refused to sign it and several states were reluctant to endorse it as well. It actually took some coercion on the part of the pro-Constitution faction to get it passed.

chuck martel July 26, 2014 at 9:00 am

People don’t seem to understand that the written word is a transcription of the verbal, not the other way around. An illiterate can have just as profound an understanding of an abstract concept as his literate opposite, since ideas originate in the mind, not on paper,

Bill July 25, 2014 at 9:14 am

This is an easily solvable problem.

At the end of every Committee Report accompanying a bill that passes out of Committee, and the final Conference Report, there should be a 1-800 number which the executive branch could call to discern true legislative intent for the question at hand.

I wish the Founders had left their 1-800 number

Who Ya Goona Call.

Remember this phrase and think about it:

“I won’t put that in the legislative language, but would you be satisfied if I put it in the Committee Report for the Courts to work out later.”

A game played on both sides.

B.B. July 25, 2014 at 9:17 am

What if a Congressional law started with a prologue, which explicitly stated the general intent of the legislation? Even though the Arrow theorem would still apply, could we make a statement about the intent of the legislation?

Don’t confuse personal intent with the legislative intent. For example, a Congressman might vote for a bill because he got bribed, or blackmailed. The intent of the Congressmen is to stay in power and make money, not to advance a particular piece of legislation. Even so, he could understand that the legislation he voted for has very clear intent. I don’t think we can say that Congress had intent, but it is coherent to say that legislation has intent. Don’t confuse private motive with legislative intent. The Arrow theorem has nothing to do with the issue of legislative intent, as opposed to Congressional intent.

In any event, I agree with the appeals court. Congress has the obligation to translate the intent into specific legislation, and if Congress is sloppy and incompetent, then that is they type of policy we get. If the citzenry doesn’t like it, they can vote for a new Congress.

FreeDem July 25, 2014 at 9:29 am

This is an excellent comment and seems to be something missed by a lot of others. Congress routinely DOES express its general intent. There are Resolutions “Expressing the sense of Congress” or “Expressing the sense of the House of Representatives” all the time. Sure, most of the time they are about meaningless recognition of a made up holiday like National Ice Cream Day. But if Congress has something expressing its intent or making a conclusion, how can it be ignored? Even if you can question individual motives and intent, the body has reached a conclusion.

(Not That) Bill O'Reilly July 25, 2014 at 9:30 am

It might be cleaner to distinguish between “intent” and “purpose,” i.e., “what did Congress think they were doing?” vs. “What problem was Congress trying to solve?”

Even Justice Scalia concedes that purpose informs meaning; he just argues that purpose must be ascertained from the statute, rather than extrinsic evidence like floor statements. If Congress included a preamble saying “the purpose of this law is to save puppies,” that would inform the analysis. But it would *not* allow a word or phrase to be given a meaning it cannot bear, such as turning a “state-run animal shelter” into an “animal shelter.”

andrew' July 25, 2014 at 10:06 am

Vote on aesthetics, bet on outcomes.

That may be what Hanson intended to mean.

Bill July 25, 2014 at 3:56 pm

They do already, and call it a Committee Report. It is the Congressional intent of the committee which passed the bill. Amendments after that get their own statement of legislative intent with the floor comments of the person making the amendment.

Its not the case, though, that Congress WANTS to be clear, however. Clarity might expose you to an election challenge.

All you want is to be clear enough for a court, which you hope has your political instincts, will be willing to “find” your well hidden legislative intent.

Thomas July 25, 2014 at 5:50 pm

I think Bill hits the nail on the head here, although perhaps unintentionally. If there had been a strong and clear intent for the law it would have been spelled out clearly.

John Schilling July 25, 2014 at 9:17 am

“Arrow showed that when a group chooses, there are no underlying preferences to uncover”

Arrow showed that when a group choses, the preferences of the group may not be the same as the preferences of a majority of the individuals of the group. This is not the same as saying the group has no preferences. If you imagine you can predict the behavior of a group by understanding the preferences of the individual members, you’ll probably get it wrong. But to get it right, you really do want to understand the (possibly very different) preferences of the group, and the manner by which those preferences are determined and expressed.

Cowboydroid July 25, 2014 at 10:42 am

It IS the same as saying that the preferences of a group cannot be rationally determined, even by majority vote. The preferences of a group are thus irrelevant. It is the preferences of the individual that are important to determine. Group preferences will develop through social interaction. They cannot be enforced through fiat.

“If you imagine you can predict the behavior of a group by understanding the preferences of the individual members, you’ll probably get it wrong.”

And this is precisely the opposite conclusion reached by most actual economists. You MUST understand what drives the preferences of individual members if you can even hope to understand the preferences of the group.

John Schilling July 25, 2014 at 10:51 am

“It is the same as saying that the preferences of a group cannot be rationally determined, even by majority vote”.

s/even/only. I do not believe that Arrow’s theorem has anything to say about group preferences determined by means other than majority voting.

Also, it is unclear why “rationally determined” preferences are required. Individuals clearly have preferences, yet these preferences are often determined by means that can be described as “rational” only by the most contorted, er, rationalizations.

Uninformed Observer July 25, 2014 at 9:31 am

The comparison to constitutional originalism is inappropriate.

Originalism refutes those who wish to re-interpret the plain language of the Constitution. It seeks to cast aside the intervening years of judicial interpretation and get back to what the original authors actually wrote, when they actually wrote it. Originalism is the belief that words mean something.

The Court in Halbig is taking a very originalist position in that sense. It’s saying that Congress’ (legislative) words have meaning, and that those words cannot be tossed aside because of a post facto reinterpretation.

Andrew' July 25, 2014 at 9:52 am

People should really realize their strawmen are strawmen.

“You want to go back to slavery!”

Uh, no. The new thinking that blacks are actually also humans is fine by me.

It is really more about canceling the left’s free option to use idiosyncratic legal interpretation to ratchet effect. The right simply tends not to do it, probably because laws are always written in the past.

KevinH July 25, 2014 at 9:48 am

This is all nice and good in theory, but then you must treat people as if they don’t have preferences or intent either. Our decisions arise from a collective of networks. And in no way is that trying to argue against Arrow. The proof is rock solid, but it has just as deep implications about the mind as it does about politics.

The real interesting, and hard problem, is to talk about what TYPE of collective is formed by congress what that means for the process of distributed law making and application of laws to novel circumstances. Arrow doesn’t prove that all groups can’t be thought of as having coherent preferences (eg trivial groups that all have the same preferences, groups where preferences have clear Condorcet winners), instead the proof shows that there are no rule of aggregation that can make coherent preferences out of all possible groups.

Anyone ever been torn about what decision to make? Next time, think of Kenneth and realize that it might be mathematically impossible for you to make that decision without novel information that tweaks your internal preferences.

Boonton July 25, 2014 at 9:54 am

Here’s a problem, if there’s no legislative intent then there’s no judicial intent either. The entire idea of the SC is that decisions are made by a majority of Justices and all the lower courts are suppose to use those decisions to understand how the law is supposed to work. But the same problem erupts with court decisions. All you have is a document approved by a majority. What does it mean given that it’s a collective work?

(Not That) Bill O'Reilly July 25, 2014 at 10:43 am

And in the judicial context, courts don’t seem to have any problem with interpreting prior precedents strictly by their own words, rather than delving into the meeting notes and letters between Justices to figure out what the “intent” was.

KevinH July 25, 2014 at 1:26 pm

Don’t worry, it’s turtles all the way down.

Thomas July 25, 2014 at 5:53 pm

The day Boonton turned to nihilism as the only way to continue supporting ACA.

Brian Donohue July 25, 2014 at 9:57 am

Sentences to ponder:

“Put differently, if we do try to rationalize a leviathan with preferences and intention we will find that such a leviathian has the preferences and intention of a madman.”

Das July 25, 2014 at 10:06 am

Philosophy and logic don’t mix well with politics, because opinion too stronk.

But thank you for trying Alex.

Benny Lava July 25, 2014 at 10:12 am

I like the argument put forth that the intent of Congress cannot be known because it is a collection of varying points of view but the intent of legislatures or the public at large 100+ years ago can be known because…? It is ironic that the phrase “plain language” would be bandied about considering that the authors of the Constitution often “intended” ambiguous language to be flexible to reinterpretation.

chuck martel July 25, 2014 at 10:08 pm

How do you know that?

Benny Lava July 26, 2014 at 11:40 am

They said as much:

…if the letter of the Constitution is strictly adhered to, and if no flexibility is allowed, no power could be exercised by Congress, and all the good that might be reasonably expected from an efficient government would be entirely frustrated.

If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject.

Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect; the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too not only to the existing state of things, but to all the possible changes which futurity may produce.

Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities.

Cowboydroid July 25, 2014 at 10:19 am

An exceedingly excellent post, Alex. This is the kind of truth that escapes many purportedly educated people who still find themselves defending the absurdity of collectivization. Even so-called economists fall into this trap. It’s nice to know not -everyone- has been duped.

Dan Weber July 25, 2014 at 10:28 am

I ain’t got a problem with determining intent. Laws are written in human language by humans, and so they are full of errors and ambiguities. Even RFCs can have internal consistencies.

That said, when you want to argue that the intent is the opposite of the stated word, you have need to build a substantial case. In this specific example there seems to be no case and no contemporaneous records from the time showing that the intent was the opposite of the stated word.

The Other Jim July 25, 2014 at 10:34 am

If you do nothing else today, please watch the video of Obamacare architect Jonathan Gruber explaining that it was explicitly intentional to exclude federal subsidies from the ACA. This was done to bribe the states into compliance.

http://reason.com/blog/2014/07/24/watch-obamacare-architect-jonathan-grube

Now that 36 states have given Obamacare the finger, the story has suddenly changed to “oops it was a typo.”

Shameless lying partisan hacks.

Dan Weber July 25, 2014 at 10:48 am

You overstate your case. In the highlighted portion, he only said what the ramifications of the law as passed were, which ought to take the wind out of the sails of anyone who says “only a moron would think the law says that.”

(If there is a quote besides the one Reason highlighted where he talks about intent instead of effect, please give me the time stamp.)

Maybe you think I’m picking nits. I tend to do that when told what someone else “explicitly” said.

Rich Berger July 25, 2014 at 3:10 pm

“..he only said what the ramifications of the law as passed were,”

Is there some sort of secret text that we don’t know about?

Slappy McFee July 25, 2014 at 2:18 pm

We have to pass it to see what’s in it.

And people are still arguing about legislative intent….. It seems many people here have no idea that legislators don’t actually write the bills they vote on. Outside groups and staffers do. Elected officials are too busy raising money to worry about the wording or intent of laws they are voting on.

Am I the only one that remembers the outcry regarding the simple request that Congress should actually READ the bills prior to voting on them?

ANON July 25, 2014 at 3:32 pm

I don’t think that Arrow’s Impossibility Theorem really applies; A series of preference-revealing votes, each internally inconsistent, may lead to something that is incoherent. But ACA was one bill. I don’t think the theorem suggests that all legislation is internally incoherent?

Dan July 25, 2014 at 6:31 pm

According to this logic, parties to a contract also can’t have any intent about what they meant — which basically flies in the face of contract law. What about ambiguities? What about scrivners’ errors? Do businesses have to re-write all their contracts now because there’s no such thing as a shared intent (supposedly)?

Thomas July 25, 2014 at 9:24 pm

It’s a bit more like: the contracting parties do not have a single unified consent. The contract shouldn’t therefore be enforced by divining what the partnership “really means” but by the words on the contract which the parties agreed to. Just as ACA shouldn’t be enforced the way it’s supporters want it to be, “because that’s what Congress really wanted”, but as it was agreed upon.

Thomas July 25, 2014 at 9:24 pm

I meant to write: “single, unified intent”

Dan July 26, 2014 at 10:58 pm

Thomas, you really know nothing about contract law, do you? When there’s an ambiguity in a contract, the court looks at extrinsic evidence to determine the parties intent: “[T]he parties’ intentions” are “gleaned from the agreement itself if the agreement is unambiguous and, **if it is ambiguous,** from all pertinent evidence.” Federal Deposit Ins. Corp. v. WR Grace & Co., 877 F. 2d 614, 620 (7th Cir. 1989) (Posner, J.). This is a fundamental rule of contract law; you’re essentially saying that the legal architecture of capitalism is based on a falsehood. That’s an extraordinary claim that requires extraordinary evidence, but instead all we get is Alex vaguely gesturing towards to the impossibility theorem, throwing out a few links, and saying “go figure it out!” What a crappy argument.

Bill N July 25, 2014 at 8:22 pm

I believe that is a misrepresentation of Arrow’s theorem. Arrow proved that for any voting system, there exist cases in which the the votes (supposed group preferences) would be incoherent with individual preferences. That incoherence is not required.

Bill N July 25, 2014 at 8:26 pm

I believe that is a misrepresentation of Arrow’s theorem. Arrow proved that for any voting system, there exist cases in which the the votes (supposed group preferences) would be incoherent with individual preferences. That incoherence is not required.

Moreover, Arrow’s theorem dealt with selection a among discrete choices not an up and down vote.

buddyglass July 26, 2014 at 12:01 am

It may not make sense to speak of the intent of the entire Congress, but it might make sense to speak about the intent of a particular piece of legislation’s authors. A piece of legislation that, presumably understanding its authors’ intent, the entire Congress voted upon and passed. (With the understanding that individual members may have opposed the legislation, or supported it for reasons other than the stated intent.)

Shane M July 26, 2014 at 1:15 am

From what I understand the legislators generally don’t write the language of the bills to begin with, regardless of their speeches and public statements.

ohwilleke July 27, 2014 at 2:01 am

But, all bills were written originally by someone who intended it to mean something, and all people who subsequently propose modifications to that language in the legislative process, likewise intend their amendments to have a particular meaning.

ThomasH July 26, 2014 at 8:27 am

If Congressional intent is incoherent, does this mean that anything IRS interprets is OK,then?

Jeff July 26, 2014 at 11:22 am

One implication of this topic is that what we think of as “moral behavior” may lead to unpredictable or even bad consequences. Most cultures’ moral codes are built around behaviors that tend to reward individuals by creating goodwill in another individual. But when dealing with collectives this entire rationale breaks down. Organizations, companies, nations, etc. do not have feelings and may not respond in the same way that the individuals composing them might respond.

ohwilleke July 27, 2014 at 1:56 am

I’m sorry, but the original post is utter poppycock.

Arrow’s impossibility theorem shows that it is possible to have a situation in which a group asked to vote yes or no on a series of questions can produce answers that are fundamentally inconsistent, cannot be reconciled with any preference, and hence produces results that are path dependent in those circumstances. In the same vein, it is possible to construction a paradoxical sentence from words such as “this sentence isn’t true.”

But, while such an outcome is possible, it isn’t common. It is perfectly possible, and indeed, common, for those who vote in favor of legislation to have a common understanding regarding what the language of that legislation is means, and for those voting in favor of the legislation to share a purpose to bring about a particular result by passing legislation that has that meaning.

For example, when legislators pass legislation that strikes out the word “or death” from the phrase “life in prison or death” that set out the penalty for first degree murder, they mean to abolish the death penalty.

Suppose that a legislative body passes legislation that says the budget for the department of defense is “$300 billion dollars” without accompanying numerals and a court is asked, did they mean $300,000,000,000 (as in common American English usage) or did they mean $300,000,000,000,000 (as in common British English usage)? This is a question of legislative intent that can’t simply be resolved from the language of the statute alone.

But, the people who voted on that bill are very likely to have had a shared intent regarding which number they understood that they were voting for at the time. In the United States, they surely meant the smaller number; in England, they may very well have meant the larger number. One can confirm that this is the shared understanding by reviewing the legislative debate. For example, perhaps Democrats had been pushing for $280 billion, and Republicans had been pushing for $310 billion, because the Republicans said they wanted money for two more aircraft carriers, and the Democrats said that those two more aircraft carriers were unnecessary. If you know that an aircraft carrier costs $15,000,000,000, then you can use that discussion to determine what numeral was intended this potentially ambiguous legislative language.

Certainly, it is possible for there to be situations in which the supporters of legislation did not share an understanding of what it meant.

Even more frequently, there are situations in which a case that no one considered at the time that the legislation was enacted comes up and there was no opinion, in a narrow sense about that particular possibility. For example, maybe a new law creates a new private cause of action that is sort of like an existing legal theory that has a two year statute of limitations, and sort of like an existing legal theory that has a three year statute of limitations and no one every discussed or considered what the statute of limitations should be when the law was passed. In that case, there may be no legislative intent regarding that question, even though there might have been perfect legislative consensus regarding what the measure of damages for the new private cause of action would be.

Legislative intent won’t always resolve ambiguity in the language of a statute, even though it is often helpful. When it is unavailing, for whatever reason, courts can turn to other tools.

But, when economists make absurd statements like “there is no such thing as legislative intent”, they are simply being obtuse and demonstrating their ignorance of the social and communication dynamics of people involved in the legislative process which is not something within their sphere of expertise anyway. They are also generally putting forward a straw man definition of legislative intent that is contrary to the ordinary meaning of the term while pretending that their definition is the only one possible.

This isn’t surprising. Economists aren’t known for their excellent grasp of human nature or for being clear communicators or good listeners. Frequently, they don’t even understand how real world actors in their field of study actually behave at an up close and personal level. For example, there are plenty of real estate economists who have never read a purchase and sale contract, or a listing agreement. Often economists reach profoundly inaccurate results because they don’t understand the transactions they are observing accurately, and then proceed to theorize based upon their inaccurate information, because they are better at theorizing with equations than they are at making assumptions that resemble reality. This doesn’t mean that would should take them seriously when they engage in flights of fancy that are divorced from reality.

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