Eminent Domain

Ramesh Ponnuru of National Review has an interesting article about the Hamdan decision. He states that Justice Stevens' majority opinion got important facts about the legislative history of the Detainee Treatment Act of 2005 wrong. Stevens used statements from two of Hamdan's briefs about the legislative history to support his view that the DTA did not strip the courts of jurisdiction in this case. Ponnuru looks at the problem...

In deciding how to read the amendment, Justice Stevens, writing for the Court, looked at senators’ statements, among other things. Here he encountered a problem: The senators disagreed. Senators Lindsey Graham and Jon Kyl, the Republican authors of the amendment, thought that it applied to pending cases. Other senators, notably Democrat Carl Levin, did not.

Stevens handles the problem in footnote 10. The statements by Kyl and Graham, he writes, “appear to have been inserted into the Congressional Record after the Senate debate. . . . All statements made during the debate itself support Senator Levin’s understanding” (emphasis in original).

But Stevens has it wrong. None of the statements he cites — on either side of the issue — was made during floor debate in the Senate. All of them were submitted for the record after the debate (but before the vote on the act).

I haven't gone through the effort of watching the entire floor debate on the bill (and I sure as hell won't), but I trust Ponnuru to be reporting this accurately. He makes an important point about the use of legislative history in his closing remarks...

Legislators routinely insert speeches into the Congressional Record, and they routinely do so in order to influence judges. The manipulability of legislative history by legislators and judges is notorious, and it is one of the reasons Justice Antonin Scalia gives for not basing judicial decisions on legislative history. (He argued that the text of the law was on Kyl and Graham’s side.) After Hamdan, Scalia has more evidence to support his skepticism.

Legislative history is used by creative legislators to change the meaning of laws. Judges then use their favorite pieces of debate language to justify rulings that fly in the face of the text. Hopefully, Scalia's view on this will triumph... but it probably won't be soon.