NINOMANIA
:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::
:: Wednesday, February 22, 2006 ::
Court will hear partial-birth abortion case.
:: David M. Wagner 1:53 PM [+] ::
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:: Tuesday, February 14, 2006 ::
Constitution changes with time? "[Y]ou would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism; it is a legal document. It says something and doesn't say other things."
And the Left of course doesn't have a clue. ThinkProgress.com summarizes the speech as "The Constitution is dead, you idiot." Yes, and that's why you have constitutional rights. Under a "living Constitution," your rights could expand or contract, or even disappear (your right to confront witnesses against you in a criminal trial, for example), according to the whims of Justices discerning Holmes's "felt necessities of the times," or according to the whims of what you "democrats" dread most: political majorities, which, over time, tends to prevail in the Supreme Court when it isn't anchored to the Constitution.
:: David M. Wagner 5:20 PM [+] ::
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Any of you students planning to take the bar in Texas? It's now a three-day exam, you know. Yeah, after the essays and the Multistate, you get shot by Dick Cheney.
:: David M. Wagner 11:41 AM [+] ::
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Ha! I'll bet now there won't be such a hissy fit from the profs and the press when Scalia goes hunting with Cheney!!
:: David M. Wagner 11:30 AM [+] ::
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:: Monday, February 06, 2006 ::
GONZALEZ v. OREGON: DEAD PARROTSimply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.
-- Justice Kennedy, for the Court
Even if there were an antiparroting canon, however, it would have no application here. The Court’s description of 21 CFR § 1306.04 (2005) as a regulation that merely “paraphrase[s] the statutory language,” ante, at 10, is demonstrably false.....
Since the Regulation does not run afowl (so to speak) of the Court’s newly invented prohibition of “parroting”; and since the Directive represents the agency’s own interpretation of that concededly valid regulation; the only question remaining is whether that interpretation is “plainly erroneous or inconsistent with the regulation”; otherwise, it is “controlling.” Auer, supra, at 461 (internal quotation marks omitted).....
-- Justice Scalia, dissenting
:: David M. Wagner 2:51 PM [+] ::
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:: David M. Wagner 1:53 PM [+] ::
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And the Left of course doesn't have a clue. ThinkProgress.com summarizes the speech as "The Constitution is dead, you idiot." Yes, and that's why you have constitutional rights. Under a "living Constitution," your rights could expand or contract, or even disappear (your right to confront witnesses against you in a criminal trial, for example), according to the whims of Justices discerning Holmes's "felt necessities of the times," or according to the whims of what you "democrats" dread most: political majorities, which, over time, tends to prevail in the Supreme Court when it isn't anchored to the Constitution.
:: David M. Wagner 5:20 PM [+] ::
...
:: David M. Wagner 11:41 AM [+] ::
...
:: David M. Wagner 11:30 AM [+] ::
...
Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.
-- Justice Kennedy, for the Court
Even if there were an antiparroting canon, however, it would have no application here. The Court’s description of 21 CFR § 1306.04 (2005) as a regulation that merely “paraphrase[s] the statutory language,” ante, at 10, is demonstrably false.....
Since the Regulation does not run afowl (so to speak) of the Court’s newly invented prohibition of “parroting”; and since the Directive represents the agency’s own interpretation of that concededly valid regulation; the only question remaining is whether that interpretation is “plainly erroneous or inconsistent with the regulation”; otherwise, it is “controlling.” Auer, supra, at 461 (internal quotation marks omitted).....
-- Justice Scalia, dissenting
:: David M. Wagner 2:51 PM [+] ::
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