
Policy laundering - handpickednames
https://en.wikipedia.org/wiki/Policy_laundering
======
eadmund
> At that time, Congress attempted to protect migratory birds by statutory
> law. However, both state and federal courts declared that law
> unconstitutional. Not to be denied, authorized parties subsequently
> negotiated and ratified a treaty with Canada to achieve the same purpose.
> Once the treaty was in place, Congress then passed the Migratory Bird Treaty
> Act of 1918 to enforce the treaty.[10] In _Missouri v. Holland_ , the United
> States Supreme Court upheld that the new law was constitutional in order to
> support the treaty.

That doesn't make sense: how can the federal government (whose power is _only_
that granted by the Constitution) agree to & be bound by a treaty which is
unconstitutional?

~~~
ubernostrum
_That doesn 't make sense: how can the federal government (whose power is only
that granted by the Constitution) agree to & be bound by a treaty which is
unconstitutional?_

The treaty isn't unconstitutional, though.

The existing standard for constitutional review of treaties is that the things
called for by a treaty are allowed unless the Constitution specifically
forbids them. This is a much lower standard than the "forbidden unless the
Constitution specifically authorizes it" applied to other acts of the federal
government.

And since the original case revolved around states wanting to regulate in
preference to Congress, and Article VI says treaties have supremacy over state
law, the treaty-based bird regulations stood up to scrutiny, because the
treaty itself was held to be permitted by the Constitution.

Also, in the modern day the original bird law might not have been struck down
at all. The theoretical support for the law was in Congress' (specifically-
enumerated) power to regulate interstate commerce, and rooted in the
inherently state-line-crossing nature of the migrations. Interpretation of the
interstate commerce power has swung back and forth like a pendulum several
times over the history of the US. At the time of the original bird law it was
being interpreted extremely narrowly; today it is typically read more broadly.

~~~
rtkwe
From what little I've read on Supreme Court jurisprudence it seems like the
Commerce Clause has just gotten more and more broadly read over the years.
When has it really swung back to more narrowly read in a significant way?

~~~
ubernostrum
During John Marshall's tenure on the court, it was read broadly in favor of
Congress.

But then we had the era of tortured readings of parts of the Constitution
through which the Supreme Court basically tried to enforce a particular
economic policy on the entire country. This was a time when progressive
reformers were pushing for labor standards, bans on child labor, minimum wages
and all the things we mostly take for granted today. And the Court _hated_
that stuff philosophically, so they looked for ways to kill it. Sometimes the
commerce clause would be read narrowly (if it could be used to strike down a
federal regulation). Sometimes it would be read broadly but _against_ the
states (if it could strike down a state regulation). The Fourteenth Amendment
was another popular choice of text at the time, with the Court reading it as
having meant to establish not the equality before the law of black and white
citizens, but rather a sanctity of contract and a condemnation of economic
regulation beyond the wildest dreams of modern libertarians. This was the so-
called " _Lochner_ era" named after the keystone case of the Court's economic
policy.

The swing back to broad Congressional regulatory power began with Franklin
Roosevelt threatening to "pack" the Supreme Court with judges who would
support him, leading the conservative members of the Court to realize they
would lose no matter what and finally starting to allow some economic
regulation to occur.

Then later in the 20th century the Court mostly stopped questioning assertions
of the commerce power, except for some (in)famous flip-flops led by Scalia as
he tried to find Commerce Clause justifications for striking down federal gun
control while keeping federal drug prohibition.

------
joncrane
Interesting that the "California effect" is mentioned and California is
supposedly about to pass a very strict version of Net Neutrality.

------
zerostar07
This came from a comment in another thread. I wonder if someone has modeled
these kinds of intra-HN graphs.

~~~
nerdponx
I thought about it (prompted by another comment allng these lines) but
abandoned the idea assuming I'd only find a few hits. Maybe I should rethink
my assumption and give it a serious shot!

~~~
petercooper
I had a successful front page post last week where I posted a link someone
else had posted in a thread the day before. I see it perhaps handful of times
per year, but I'm not really looking for them.. so it's worth trying IMHO.

------
thriftwy
That's why we need direct democracy more than ever.

One that will include unratify voting.

~~~
notahacker
Even easier to policy launder with direct democracy, since most people voting
will vote for the headline purpose of the law or treaty without reading the
text. Or worse still, you get Brexit-style direct democracy where the
referendum settles only a broad objective and yet all criticisms of details of
policy implementation are dismissed as defying the "will of the people".

~~~
RobertoG
>>'Or worse still, you get Brexit-style direct democracy where the referendum
settles only a broad objective and yet all criticisms of details of policy
implementation are dismissed as defying the "will of the people".'

Is it not always the case? We vote for a goal a leave the experts to implement
it.

The point of democracy is that we accept the decision of our con-citizens even
if we deeply disagree.

Maybe Brexit was the wrong decision, but the idea of not asking because we
could get a result that we don't like is totally antidemocratic and
hypocritical. Why to bother with the democratic 'appearance' then? Just go
with an oligarchy.

Anyway, I have the feeling that part of the Brexit result is because, people,
already have the feeling of being in an oligarchy and wanted to use the
opportunity to express their discomfort.

~~~
notahacker
> Is it not always the case? We vote for a goal a leave the experts to
> implement it.

No, lawmaking in a representative democracy consists of the wording of a bill
being amended as many times as necessary to secure agreement from a majority
of representatives - all able to propose amendments themselves - and then
being put to the vote before becoming law. This is also the case for some
policies put to referenda: the AV referendum was one where the referendum was
on a previously agreed text to become law, with no further legislative change
implied.

And what is being objected to here is not the government attempting to
implement the result, it is the government proposing a raft of policy
objectives loosely related to some interpretations of the result _and trying
to curtail further debate and votes over them_.

If, as you say, part of the result is because people wished to express their
discomfort with the feeling of being in an oligarchy, it is even less
attractive a method of decision making to assume that the executive's
interpretation of the vote must prevail and that criticisms of it from those
who voted the other way lack any legitimacy.

