NSA leak

Frank Cross crossf at mail.utexas.edu
Fri Dec 23 17:41:46 PST 2005

I wouldn't put a lot of weight on the Daschle argument.  It is generally 
true that courts will give great weight to rejected proposals in 
interpreting a statute.  But only, to my knowledge, when they were formally 
rejected by a vote, not rejected in private negotiations.  The latter is 
arguably significant, but I don't think it has been given importance, 
because it would require post facto testimony that courts have generally 

Also, under the Administration's position, the statutory interpretation 
question shifts in part to FISA.  In addition to the implied repeal, there 
is also an, albeit weaker, principle that statutes falling within an 
exception for 'other statute' be rather clear about fitting in the 
exception.  But one would have to look at FISA and interpret its language 
and perhaps legislative history, as well as that of the AUMF.

At 06:04 PM 12/23/2005, JMHACLJ at aol.com wrote:
>In a message dated 12/23/2005 4:31:28 P.M. Eastern Standard Time, 
>bundys at law.berkeley.edu writes:
>The Sunstein position, though, moves into the range of frivolity if, as 
>Daschle contends, the Administration proposed specific language in the 
>AUMF which would have given the President power to use "force" in the 
>United  States and that language was rejected.
>I wonder about this.
>Is it always true that proposed, but unenacted, statutory language is 
>always a guide to limitations on the language of a statute?  I understand 
>the sense of what is being argued.  But suppose a clean water act 
>reauthorization proposal is the subject of a proposed amendment that would 
>define water as the liquid state of the compound H20.  The amendment 
>fails.  Subsequently, an argument is made about the scope of the clean 
>water act, and it is proposed that whatever compound is governed by the 
>clean water act, it cannot be liquid H2O because Congress considered and 
>rejected that definition.  Who is moved by the argument?
>In another context, Congress included in the Freedom of Access to Clinic 
>Entrances Act a provision that excluded from the scope of the statute 
>conduct protected by the First Amendment.  Well, wasn't that nice of 
>them.  And if Congress had failed to include that express limitation, 
>would the First Amendment have failed in its capacity to protect protected 
>expression?  And since it would not have done so, would the failure, upon 
>proposed inclusion of such language, to adopt such a provision have meant 
>that FACE unconstitutionally restricted freedom of speech?
>Jim Henderson
>Senior Counsel
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Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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