[dragonwriter]

> Holy shit. How is this not highly illegal?

Because Congress has never passed a law preventing it?

> That's like if Congress started changing laws without telling anyone...

Except they do tell people. Quietly, and inconsistently, but they do tell them.

[AaronFriel]

I would be floored, completely bewildered, and stupefied beyond belief if any Congress other than the 113th thought they had the ability to legislate what the Supreme Court can write in its decisions.

Having said that, I expect such stupidity to be debated in committee by the end of next week.

[protomyth]

"any Congress other than the 113th"

You might want to read up on past Congresses since the 113th is actually pretty tame compared to quite a few of the others. Speaker O'Neil could get quite vicious and he wasn't even the most powerful Speaker.

[dragonwriter]

> I would be floored, completely bewildered, and stupefied beyond belief if any Congress other than the 113th thought they had the ability to legislate what the Supreme Court can write in its decisions.

There's a difference between legislating what the Supreme Court can write in their decisions and legislating the manner in which the Supreme Court must publicize its decisions and changes to them.

And the issue, to be clear, here is the latter, not the former.

[mikecb]

Your argument might be stronger if it suggested a source of authority for Congress to pass such a law.

[dragonwriter]

> Your argument might be stronger if it suggested a source of authority for Congress to pass such a law.

The most obvious The elastic clause of Article I, Section 8 (insofar as las specifying the manner of publication of Supreme Court decisions are "necessary and proper" for carrying into execution the judicial power specified in Art. III), and, additionally (for most decisions) the appellate jurisdiction clause of Article III, Section 2 (which limits the court in such cases to operate "under such regulations as Congress shall make".)

Anyway, I never argued Congress could make such a law anyway, I argued that they hadn't (thus the current behavior wasn't illegal), and that there was a substantial difference between regulating what the Court can write in a decision (substance) -- which someone suggested would be ridiculous -- and regulating how the Court must publicize decisions (process). I didn't say that either restriction would necessary be within the power of Congress, just that they were substantially different things.

For the reasons cited earlier in this post, I suspect that the kind of regulations that would be relevant to this discussion on process would be within Congress power, but that's somewhat beside the point. I mean, if Congress can't make a law regulating the process, that would be an even stronger form of the "Congress hasn't made a law" reason for it not being illegal.

[anigbrowl]

The judicial branch regulates itself. Congress establishes courts, but the Judicial Branch provides for how they should be run.

[tptacek]

Well... Congress has passed laws impacting venue decisions, and Congress can change the composition of the courts, for instance by adding new judgeships. Congress also creates special administrative courts like FISA.

[mikecb]

Ahh, yes. Your edit makes much more sense.

[sp332]

rdrdss23 asked "How is this not highly illegal?" and the simple answer dragonwriter gave is: because there's no law against it.

[walshemj]

Just like the plans in the hitch hikers guide.

" ...You hadn't exactly gone out of your way to call attention to them had you? I mean like actually telling anyone or anything.' But the plans were on display...' o n display? I eventually had to go down to the cellar to find them.' `That's the display department.' `With a torch.' `Ah, well the lights had probably gone.' `So had the stairs.' `But look you found the notice didn't you?' `Yes,' said Arthur, `yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying "Beware of The Leopard".'