It’s all been downhill since we invented agriculture, anyway.

But we had left the state of nature before the industrial revolution.

I mean, each one of us breathes out about half a ton of CO2 every year.

…which is why the EPA decided to only regulate the really big fish.

PubliusFL:
There are plenty of laws on the books (and enforced that way) that don’t match up with the typical “man on the street”’s idea of common sense.

Which is yet another interesting question that came up in the otherwise pretty pointless discussion about legislators reading everything: How can laws that no normal person can understand be legitimate?

Common sense is something applied to individual situations, not to general rules.

Like, say, an individual blind person? That said, I agree that your proposal of “No dog shall be allowed on in the Capitol except by permission of the Sargent at Arms” is preferable to either alternative.

I mean, each one of us breathes out about half a ton of CO2 every year.

It amazes me that at no point during this whole silly process did one of the responsible folks involved — legislators, judges, lawyers — say Whoa hold up a moment; whatever the merits of this viewed under the microscope of right now and right here, if we go through with seeming to assert the right of government to regulate how much people exhale, we are ultimately going to look like such arrogant and clueless nincompoops that we will do costly damage to what little respect for the law and government is left these days.

Pity, that.

Martinned: That’s actually an interesting experiment for a legal theorist with an interest in the practical application of the law, if such a person exists: Take that example, and go ask people in the street. “Congress enacts a law that says ‘No dog shall be allowed in the Capitol building’. Is it allowed for a blind person to bring their seeing-eye dog into the building? Yes/No.” (Tick the box.) I predict an easy win for Yes. (say, 70/30)

Suppose you went and asked people on the street: “A state law says no one may care for unrelated children in their home for more than four weeks each calendar year unless they are licensed day-care providers. Is it allowed for someone to watch their neighbor’s kids for an hour each morning, without compensation, while they wait for the school bus? Yes/no. (Tick the box.)”

I would predict an easy win for Yes in that situation too. But the majority would be wrong. There are plenty of laws on the books (and enforced that way) that don’t match up with the typical “man on the street”‘s idea of common sense.

The failure to apply common sense to statutes in this way is why American statutes are so illegible.

Common sense is something applied to individual situations, not to general rules. I would urge Congress not to the write the Statute that I suggested, but rather “No dog shall be allowed on in the Capitol except by permission of the Sargent at Arms”. Congress cannot anticipate every possible scenario, they can only delegate it to someone to make the common-sense decision in each instance where the general rule does not suffice.

If you want your representative to read every letter of everything, you have to let him/her make do with a statute that says ‘No dog shall be allowed in the Capitol building’ combined with the understanding that seeing-eye dogs and bomb sniffers are not covered.

The problem is that my representative might have that understanding, and your representative might think that bomb-sniffers are OK but not SEDs. This raises a host of practical (not to mention philosophical) problems about what it means for a group of people to approve a bill that includes unwritten assumptions that cannot be known or predicted in advance.

I want my Congressperson to read the bills (actually, I’d rather an experienced legal staffer give him an executive summary) only if what he reads is in isomorphic correspondence to the actual implementation. Otherwise I don’t really see the point.

The only meaning that a reasonable person could assign to those words is that no dog shall be allowed in the Capitol.

That’s actually an interesting experiment for a legal theorist with an interest in the practical application of the law, if such a person exists: Take that example, and go ask people in the street. “Congress enacts a law that says ‘No dog shall be allowed in the Capitol building’. Is it allowed for a blind person to bring their seeing-eye dog into the building? Yes/No.” (Tick the box.) I predict an easy win for Yes. (say, 70/30)

The only question is whether 70/30 is enough to give Congress a pass. That’s a discussion that is intimately connected to the recent “Congressmen shall read every letter of every Bill” discussion. If you want your representative to read every letter of everything, you have to let him/her make do with a statute that says ‘No dog shall be allowed in the Capitol building’ combined with the understanding that seeing-eye dogs and bomb sniffers are not covered. The failure to apply common sense to statutes in this way is why American statutes are so illegible.

Have you noticed how hard it is to pass anything other than abstinence-only education in Congress these days? That may well be a good thing, but it does undermine somewhat the presumption that Congress will fix all of its own mistakes.

That is because a majority of legislators do not want to pass full-bore sex-education. There are more socially conservative Dems than there are socially liberal Reps (partly as a function of being the majority party).

Your opinion that it is a mistake is just that — your opinion. It does not replace the judgment of the Congress.

When Congress bans dogs from their buildings, that would not cover seeing-eye dogs or bomb sniffers, because no reasonable person would read the statute that way, and Congress is entitled to write their statutes bearing in mind the meaning that reasonable persons will assign to the words.

Then you and I differ on reasonable. I think it is quite unreasonable to read the language “No dog shall be allowed in the Capitol building” to allow a dog in the Capitol building. The semantic content of the sentence simply does not allow that conclusion. The only meaning that a reasonable person could assign to those words is that no dog shall be allowed in the Capitol.

[ Aside, why does your blockquote mangle my formatting? ]

Oren: I really didn’t want to get into the doctrine of implied repeal and all that. It suffices to say that a law that says no dogs will be allowed in the Capitol definitely does not exclude bomb-sniffing dogs just because no one in Congress envisioned that result.

Good to know, although I suspect there may be a lex specialis issue in that ADA/seeing-eye dogs hypothetical, as well as the more obvious lex posterior angle.

No, the new law, being more recent than the ADA, would be held to limit the reach of the ADA.

I really didn’t want to get into the doctrine of implied repeal and all that. It suffices to say that a law that says no dogs will be allowed in the Capitol definitely does not exclude bomb-sniffing dogs just because no one in Congress envisioned that result.

Oren: Congress wrote what they wanted and wanted what they wrote (paraphrasing from Dr. Suess — ‘I meant what I said, and I said what I meant’). To say Congress didn’t want to pass the law they wrote is to twist the meaning of normal words beyond recognition[ By the way, Congress does not legislate ends, only means. The fact that a statute has not resulted in the ends that Congress may have envisioned is a reflection of the inability of humans to correctly predict the response of a complex system to a particular perturbation, not that we ought to twist their words to achieve the end that we think they had in mind. ]Congress is not an inert body (vegetative, perhaps) — if there is a defect in the statute we ought to presume that they would notice and correct it. They are not held incommunicado.

To start with the last one: Have you noticed how hard it is to pass anything other than abstinence-only education in Congress these days? That may well be a good thing, but it does undermine somewhat the presumption that Congress will fix all of its own mistakes.

Otherwise, I’m with Walstad: When Congress bans dogs from their buildings, that would not cover seeing-eye dogs or bomb sniffers, because no reasonable person would read the statute that way, and Congress is entitled to write their statutes bearing in mind the meaning that reasonable persons will assign to the words. Congress doesn’t have to write a specific exception for seeing-eye dogs and bomb sniffers if no reasonable person would consider such dogs to be covered anyway.

BTW, I don’t think that is the same situation as the one discussed in the OP. The Clean Air Act was written with the intention that it should be applied using scientific knowledge unknown at the time of drafting. As long as CO2 fits the definitions of the statute, it is covered, and the EPA has to regulate it.

Fedya says:
Oren:
If Congress passes a law that says “No dog shall enter the capitol building at any time”
—–
… the law would be found to violate the Americans with Disabilities Act, since it would ban seeing-eye and other service dogs.

No, the new law, being more recent than the ADA, would be held to limit the reach of the ADA.

There has to be a level of absurdity where the courts may say that a literal reading of the statute creates a result that Congress could not have wanted

Congress wrote what they wanted and wanted what they wrote (paraphrasing from Dr. Suess — ‘I meant what I said, and I said what I meant’). To say Congress didn’t want to pass the law they wrote is to twist the meaning of normal words beyond recognition

[ By the way, Congress does not legislate ends, only means. The fact that a statute has not resulted in the ends that Congress may have envisioned is a reflection of the inability of humans to correctly predict the response of a complex system to a particular perturbation, not that we ought to twist their words to achieve the end that we think they had in mind. ]

“When I use a word,” Humpty Dumpty said in a rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”

Congress is not an inert body (vegetative, perhaps) — if there is a defect in the statute we ought to presume that they would notice and correct it. They are not held incommunicado.

Legislation is made from words, not intent.

The purpose of the words is to convey the intent. Writing a law is not like shooting a bullet (“sorry Mom, I was aiming at the burglar”) It may not be possible to pin down the precise intent, of course, but there must be reasonable limits to interpreting the words to legitimize a clearly unintended (and in the case at hand, ultimately self-contradictory) outcome.

Oren: If Congress passes a law that says “No dog shall enter the capitol building at any time”, the SaA cannot say “Well, they didn’t intend to include bomb-sniffing dogs so they are OK”. They certainly didn’t intend to exclude bomb-sniffing dogs but the statute does and that’s the goddamned law.

How about seeing eye dogs? There has to be a level of absurdity where the courts may say that a literal reading of the statute creates a result that Congress could not have wanted, a result that no reasonable person would read into the statute.

Oren: So in my hypo, can the Treasury mint money in other denominations?

No, but an executive agency may trade practicality against plain meaning more readily than a court.

Fedya:
… the law would be found to violate the Americans with Disabilities Act, since it would ban seeing-eye and other service dogs.

As applied to seeing-eye dogs (maybe). Doesn’t help the bomb-sniffing dogs though. :-)

Congress abrogates its duties when it allows an agency with no legal authority to make rules and/or regs.

You should tell that to the Congress of 1789, they didn’t get the memo.

SEC. 17. And be it further enacted, That all the said courts of the United States shall have power [...] to make and establish all necessary rules for the orderly conducting business in the said courts.

Either that, or Congress has been delegating rule-making authority since the birth of the Republic. You know, whichever.

Oren:
If Congress passes a law that says “No dog shall enter the capitol building at any time”

… the law would be found to violate the Americans with Disabilities Act, since it would ban seeing-eye and other service dogs. ;-)

What BS!!!

Glad I have a forum to teach that man-caused GCC is BS.

PS: There are no grants of authority to delegate any previously delegated authority to another body. Any time Congress or any other branch delegates authority that branch is committing a breach of trust. Congress was granted legislative authority and We the People have every right to expect and require them to exercise that power in EVERY instance. Congress abrogates its duties when it allows an agency with no legal authority to make rules and/or regs.

They will answer to a higher power.

Better than the alternatives. “Nasty, brutal, and short” is not my idea of fun.

The very fact that interpreting CAA to apply to GHGs results in absurdity is a clear indication that the intent of the legislation was not to regulate GHGs.

Legislation is made from words, not intent. The 1970s Congress didn’t intend to regulate GHGs, but they wrote a statute that does.

If Congress passes a law that says “No dog shall enter the capitol building at any time”, the SaA cannot say “Well, they didn’t intend to include bomb-sniffing dogs so they are OK”. They certainly didn’t intend to exclude bomb-sniffing dogs but the statute does and that’s the goddamned law.

Unlike the Courts, an executive agency gets to interpret its governing statutes with practicality in mind, as well as plain meaning.

So in my hypo, can the Treasury mint money in other denominations? I don’t think so.

Congress ought to vest appropriate discretion in the Treasury as to the distribution of denominations but they certainly don’t have to.

Tuck: Ah the Industrial Age. It was fun while it lasted…

Not all fun, though.

Oren: Our system of government does not allow the other branches to discard statutory commands because they think it is impractical or unworkable. If Congress passes a law directing the Treasury to mint all new money in pennies, the Treasury damn well better mint all new money in pennies.If the statute is unworkable, Congress should fix it.

That was my main qualm with this post, too. Unlike the Courts, an executive agency gets to interpret its governing statutes with practicality in mind, as well as plain meaning.

Funny, though, that such administrative concerns — indeed the sheer unworkability of trying to impose GHG controls on such a scale — did not convince a majority of the Supreme Court that the CAA did not apply to GHGs in Massachusetts v. EPA

Our system of government does not allow the other branches to discard statutory commands because they think it is impractical or unworkable. If Congress passes a law directing the Treasury to mint all new money in pennies, the Treasury damn well better mint all new money in pennies.

If the statute is unworkable, Congress should fix it.

The D.C. Circuit won’t be able to invalidate the proposed rule (once it becomes final) without a petitioner to challenge it.