Tuesday, June 25, 2013

The bill is too damn long!

In recent years, conservatives have frequently complained about the length of controversial legislation, whether the federal budget, the Affordable Care Act, or the proposed immigration reform bill.   Kevin Drum asks why size suddenly matters for conservatives: “But the real question is why this has become such a favorite gripe from the tea party set. I mean, who cares how long a bill is? If you don’t like immigration reform, you don’t like immigration reform. You still wouldn’t like it if the bill were 20 pages long instead of 1,200.”

Without commenting on the propriety of any particular bill, I think there may be a relevant constitutional prohibition. Article I, section 7 provides that before a bill becomes a law, it must first be presented to the President.  The President then has two, and only two,  options: “If he shall approve it he shall sign it, but if not he shall return it, with his Objections….”  (The section does prescribe the result where the President fails timely to pursue one of those two options.  But such presidential inaction is not expressly permitted.)

The only lawful options for the President, then, are approval and signature, or non-approval (as distinct from disapproval) and return.   He must sign if he approves, but he must return the bill if he does not approve.  Presidential approbation, then, is both a sufficient and necessary condition for presidential signature of a presented bill.

What is this required approval?  Approval would seem to require knowledge.  After all, the verb approve comes from the Latin ad+probare, meaning to test or try out.  If approbation requires knowledge, then the President cannot lawfully sign any bill he cannot understand.  And at some point, a proposed law can be so large that no President, regardless of intelligence, can honestly say that he approves it
Where the President cannot understand, and thus cannot approve, a proposed bill, the Constitution directs him to send it back to Congress with at least one “objection”: This bill is too long.

Snarky pedantic comment below the post  in its entirety:

“After all, the verb approve comes from the Latin ad+probare, meaning to test or try out.”
This is a textbook example of the etymological fallacy.

“Approval would seem to require knowledge.”
In modern usage, the word approve has no such necessary connotation. If late 18th century usage was significantly different, that would certainly be important for an originalist reading. But this analysis of Latin roots is completely irrelevant to the meaning of the constitutional text.

My reaction in its entirety:

If word meanings figure into concepts and concepts are involved in argumentation, and the constitution is in part a sort of moral argument for a particular system of government, then the etymology is not “completely irrelevant” but relevant to some degree or other. I won’t try to determine the exact degree. 

What is more, the moral core of the argument in this post is unassailable in any case. If it is morally wrong to create bills that are so long that no one can reasonably be expected to understand them, and there is no good reason for doing so, then the drafters of such bills are doing wrong.  If there are good reasons for doing so, then rushing the bill through while refusing to present those reasons is less than morally optimal. Rushing them through, not allowing people to collectively get a handle on the complexities is also morally suspect.

Writers in general are expected to consider their audiences when writing, and typically are held to account for not meeting their obligations to readers if they are obscurantist or verbose.  This is a standard upheld in colleges, (save perhaps for English departments enamored of postmodernist claptrap, or philosophy departments enamored with Hegel, or postmodernist claptrap…sorry, couldn’t resist). It is de rigueur in business. Journalists are generally held to this standard, etc. This standard is dropped to some extent when experts are writing for experts (medical journals for instance).  The legal profession often will claim exemption for this reason. Still, at least when it comes to legislation, at least the subset of lawyers that constitute legislative assemblies sometimes engage in verbosity for other reasons. 

All too often verbosity in bills is used to conceal things that drafters would rather not have seen the light of day before vote sets the act in concrete.   

An instance is noted HERE. The 2290+ page immigration reform bill now being given the once-over gives the Secretary of Homeland Security wide latitude to make exceptions to the deportation regulations in the bill with regard to some aliens that have broken criminal law, thus allowing them to stay in the country. This provision is located in section Three-thousand, Two-hundred and Fourteen and section Three-thousand, Two-hundred and Fifteen. (Yep I spelled them out to give you an idea of the sheer bulk.)  Here’s one of those sections (note the page number):

So, what does it say?  Note the text carefully. The “against the public interest” provision is one of two disjuncts, the other being “would result in hardship to the United States citizen or permanent resident parent, spouse or child” 

Here’s the gist: If the SHS deems it is against the “public interest” or if it would constitute a family hardship, and the person has not committed one of a few crimes referenced, but has committed some other crime or crimes, the Secretary can make an exception to the provisions dealing with deportation and admission.

That’s TWO…count ‘em…TWO disjuncts. Satisfaction of either would be sufficient to trigger the discretionary power. 

That means it is possible, according to this text, that there could be an illegal..er..undocumented person who has committed some crime, and has no family connections that would constitute hardships, and he or she would be allowed in, or allowed to stay, whatever the case may be. This would be OK according to the statute just so long as the SHS found the deportation or admission to be “against the public interest” whatever the hell that is supposed to mean.

So, getting back to the point: this sort of legerdemain allows legislators to say that are not doing X while actually doing something very much like X. In this instance, legislators can say that they are not granting legal status to criminals when in fact, they are.  Without the crowd-sourcing of the blogosphere, twittersphere, & etc.. this provision might have never seen the light of day, it having been safely tucked away on page 1231. 

What is more, with the extremely short time-line being forced by the process, it is extremely unlikely that any one individual involved in the legislative process, let alone the Chief Executive of the United States, would have the time to read such lengthy bills before approving or disapproving them.

Sadly, this is becoming a norm for our Congress. They see nothing wrong with voting on such behemoth bills, written by scores of underlings, largely unread by the reps and President and adopting a ‘wait and see’ attitude toward the actual content (and consequences) of the bill.

If this indeed is now a linguistically accepted meaning of the word approval, it does not follow that it should be accepted in the moral sense of that term when it comes to 'matters of public interest'. 

What a load of old cobblers.

                                                       The Bill is too damn long!