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Sens. Cruz, Hawley & Lee Show How To Take A Good Bill Idea And Make It Blatantly Unconstitutional

from the seriously-guys? dept

Senators Ted Cruz, Josh Hawley, and Mike Lee, all hold themselves out to be “constitutional” lawyers. All graduated from law schools and went on to clerk for Supreme Court Justices (Cruz clerked for Rehnquist, Hawley for Roberts, and Lee for Alito — though before he moved to the Supreme Court). And yet, all three have shown that their support for the Constitution they swore to uphold and protect is a little wishy washy when they can build a culture war around it and get some silly press attention. The latest move is their new bill to strip Major League Baseball’s antitrust exemption.

Now, I’ve explained this before, but let me be explicit about it here, because it’s the part that people keep getting tripped up on: I think this is a good idea. It’s silly that Major League Baseball has an antitrust exemption and it should be gotten rid of. There’s no need for it and it’s bad policy that it exists. And if Senators Cruz, Hawley and Lee had simply introduced such a bill, I might even cheer it on.

But… that’s not what they did. They announced it in a manner that makes it blatantly unconstitutional, because they flat out admit that they’re doing it to punish MLB for MLB’s political expression (namely moving the All-Star Game out of Atlanta to protest Georgia’s new voting law). And the Senators don’t even try to hide this or come up with some Potemkin-style façade. They just out and out admit that they’re doing this for unconstitutional reasons:

Following Major League Baseball?s (MLB) decision to relocate the All-Star game from the state of Georgia, U.S. Sens. Ted Cruz (R-Texas), Mike Lee (R-Utah), and Josh Hawley (R-Mo.) will hold a press conference today outlining their legislation to end MLB?s special immunity from antitrust laws.

Here’s the thing that many people are missing: you can do constitutional things for unconstitutional reasons, and it makes the things you do… unconstitutional. In this case, Cruz, Lee, and Hawley are actually making it more difficult to remove MLB’s antitrust exemption, because they’ve just handed MLB an easy response should this bill go anywhere. They can run to court and say that this was clearly vindictive behavior by Congress in response to protected 1st Amendment speech.

So even if you support removing MLB’s antitrust exemption, you should be against this. Because this action, in this way, simply guarantees that if it got traction, it would get tied up in court for years solely due to the statements of Hawley, Cruz, and Lee.

It’s quite likely that none of the three actually care, of course. They’re all just grandstanding for an ignorant base who wants these Senators to embrace “cancelling” Major League Baseball for daring to… care about voting rights. And, in doing so, these three Senators show (yet again) that they’re not interested in actually doing what’s right, or what’s constitutional. They’re only interested in frothing up some grist for an ignorant base who revels in the politics of petty grievances.

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Comments on “Sens. Cruz, Hawley & Lee Show How To Take A Good Bill Idea And Make It Blatantly Unconstitutional”

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75 Comments
This comment has been deemed insightful by the community.
David says:

Re: Re:

A shame we don’t have a Constitutional test for all incoming congress critters. 1/2 of them would fail.

You are insinuating that those people don’t know what they are doing, or they’d not do it.

The question governing their behavior is not "what would be the moral thing to do?" or "what would be the legal thing to do?" or "what did I swear an oath on?" but "what can I get away with?".

That’s sort of the same competency question relevant for a crime lord, except that in politics the populist element of answering this question has a larger weight.

Scary Devil Monastery (profile) says:

Re: Re:

"Three of the many congress critters who don’t care about legislation"

Yeah, and to be fair, by now the words "hawley & cruz" just tells you all you need to know about the proposed bill. It’s like seeing that Nathan Bedford Forrest just proposed a new novel idea on racial equality. You already know what it’ll be about without reading it.

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Koby (profile) says:

Works Both Ways

Here’s the thing that many people are missing: you can do constitutional things for unconstitutional reasons, and it makes the things you do… unconstitutional.

There is no intent clause in the first amendment. The senators are similarly entitled to their opinions. Any elected officials that vote to eliminate the antitrust exemption are allowed to do so because they think it’s a good idea, while also holding the opinion that MLB are a bunch of jerks. Laws cannot be declared unconstitutional on the basis of lawmakers being insufficiently friendly.

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Samuel Abram (profile) says:

Re: Works Both Ways

The senators are entitled to their opinions. However, the first amendment explicitly says "Congress shall make no law…abridging the freedom of speech…". The MLB moving their game from Atlanta to Denver was a decision for political reasons, and Cruz, Hawley, and Lee are making it clear they are making a law to punish political speech.

Oh, and don’t you argue that moving a game from one location to another isn’t speech, because the same arguments were made about flag burning and the Supreme Court struck down an anti-flag-burning law on first amendment grounds (with Scalia concurring in the majority).

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Koby (profile) says:

Re: Re: Works Both Ways

"Congress shall make no law…abridging the freedom of speech…"

The proposed legal change would not abridge speech, but would instead change the interpretation of a 1922 court decision regarding the scope of interstate commerce. MLB would still be free to swap all-star site locations for political purposes as much as they want.

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Stephen T. Stone (profile) says:

Re:

A lawmaker has said they intend to punish Major League Baseball for its speech by crafting a law that aims to do exactly that. You may not care about that, but federal judges — whose opinions carry the weight of law — will absolutely care.

I mean, I get it: You think the government is on the side of the righteous here. Maybe it is. But doing the right thing for the wrong reasons means you’re doing the wrong thing. The government can remove the antitrust protections for MLB for reasons that won’t violate the First Amendment — but now it can’t, at least not for the foreseeable future, because three Senators decided to say the quiet part out loud.

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Toom1275 (profile) says:

Hawley also just proposed a laughably stupid bill that proposes blocking all mergers for companies above an arbitrary market cap.

https://arstechnica.com/tech-policy/2021/04/hawleys-antitrust-bill-targets-big-tech-but-experts-worry-about-collateral-damage/

Nothing but a political ploy.

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That One Guy (profile) says:

Re: Re: Re:

Not according to the article itself, though I imagine insurrection-supporter Hawley is only thinking about a particular sector, and even more specifically companies within it that don’t pledge allegiance to the cult of Trump as I have no doubt he’d have no problem with any mergers by companies he sees as on his side.

In relying on it, Hawley’s bill would ensnare companies in a wide variety of industries that go well beyond Big Tech, including banks, pharmaceuticals, retailers, automakers, telecoms, and more. Nearly 150 companies would qualify today.

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Bloof (profile) says:

It’s the republican way, don’t govern, don’t even pretend to, just create an enemy, create laws that your colleagues will never allow to pass into law to fight said enemy and fundraise on it. Meanwhile, the next generation of republicans will grow up brainwashed by their parents into believing that this is the heart of the party platform, and what as initially a grift becomes an entrenched belief. All the while, they attack the constitution, fill the halls of power with people who you wouldn’t trust to run a used car dealership and pump raw sewage into the court system and their grifty notion creeps closer to becoming law. See overturning abortion rights, the attacks on LGBQT+ rights, Christian dogma overriding science and the rule of law…

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Anonymous Coward says:

Re: and I'm in! maybe...

Yep, after hammering for several minutes, like a switch was flipped, all goes in.

The obstacle is that "Held For Moderation" is for me a LIE. My comments never come, besides that TD has gamed the system by dealying effect.

You wouldn’t know of the viewpoint discrimination done out of sight if I didn’t mention it, often as can.

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Anonymous Coward says:

here's a HOWEVER

However he quickly goes wrong on the UN-Constitutional claim:

A) Corporations do NOT have "1A rights". They’re NOT "persons" in the Constitution.

B) Corporations have ONLY a lawyer-granted "legal doctrine" to treat them as "persons".

C) Therefore, the GRANT of exemption to a legal fiction can be removed without least Constitutional question.

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Anonymous Coward says:

Re: here's a HOWEVER

Maz’s real goal here is to protect corporatism, as always, by claiming raises Constitutional questions.

My bet is that Maz’s view doesn’t apply to the NFL and other sports leagues: he’s simply not a basebally type.

Maz is also actually giving nothing because this is likely not going anywhere.

That One Guy (profile) says:

'Welp it's been five seconds, time for a reminder...'

While trusting them in general would be an insanely bad idea you can at least trust republican lawmakers to remind people how grossly hypocritical they are and how much they hate the first amendment when it’s used by anyone else on such a regular basis you could set a clock by it.

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Anonymous Coward says:

A hypothetical scenario: let’s say a bill that goes against a corporation’s interests comes up in the Senate and get passed barely by one vote and before the vote, one of the bill supporters was on the record as saying he is voting because he wants to punish the corporation for saying things the senator does not like. According to the logic employed here if I understand correctly, if the bill would not been passed but for that person’s support, would the law that the bill becomes be then deemed "unconstitutional" even though the provisions in the bill are inherently not unconstitutional? If that vote does not matter then how about two of the bill supporters on record of saying they are voting because they dont like the corporation’s political speech? Would the two votes matter? No? How about five? ten? where’s the line?

Sounds absurd to me, the logic of yours. I think the provisions in the law per se should be the sole criteria used to deem whether the said law is unconstitutional regardless the political motivations of some of the lawmakers. (on record or alleged) Just my two cents.

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That One Guy (profile) says:

Re: Re:

You either need to reread the article several times until you grok what it actually says or work on your honesty, because your ‘hypothetical’ has nothing to do with what’s going on here. This isn’t a case of a valid bill passing due to a handful of politicians with rotten motivations supporting it it’s a bill that’s unconstitutional from the outset due to it being a blatant attempt to punish someone for legal speech, which is just kinda a no-no when it comes to government action. Motivation and context matter, all the more so when the government is involved, so the idea that the only thing that should be looked at is what a bill says/does and not why it’s being applied is to ignore a vital detail.

As the article noted even if you think that stripping the MLB of it’s anti-trust exemption is a good idea you shouldn’t be supporting this, not only because it’s unconstitutional but because it just handed the MLB a perfect counter to any valid attempts to strip that exemption by allowing them to raise questions regarding the motivation behind the attempt.

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Stephen T. Stone (profile) says:

Re:

That One Guy already picked your shit apart, but for the sake of actually answering your insincere bullshit question with a sincere answer (which is…really something I should probably stop doing):

let’s say a bill that goes against a corporation’s interests comes up in the Senate and get passed barely by one vote and before the vote, one of the bill supporters was on the record as saying he is voting because he wants to punish the corporation for saying things the senator does not like. According to the logic employed here if I understand correctly, if the bill would not been passed but for that person’s support, would the law that the bill becomes be then deemed "unconstitutional" even though the provisions in the bill are inherently not unconstitutional?

The intent of those who wrote/sponsored/introduced the bill matters more. But in this specific example? The corporation that decides to fight the new law could point to that Senator’s vote as a means of declaring legally null the passage of that law. (“They voted for this to fuck us over for something we said — how is that not a First Amendment violation?”) Whether that argument succeeds would depend on numerous variables, not the least of which would be the political leaning of the court hearing that case.

If that vote does not matter then how about two of the bill supporters on record of saying they are voting because they dont like the corporation’s political speech? Would the two votes matter? No? How about five? ten? where’s the line?

The number of lawmakers who vote in favor of the bill for the reason you outline increases the relevance of their reasoning. One Senator going “fuck their speech” would be disturbing, but ultimately outweighed by the other Senators going “nope, not passing this because of their speech” (regardless of whether they’re lying about that position). But multiple Senators going “fuck their speech” before the vote would, at a bare minimum, increase the likelihood that the new law would be found unconstitutional.

In an ideal world, no lawmaker would attack any corporation for its political speech by passing laws designed to fuck over that corporation. But we don’t live in that world. That’s why we have courts of law.

Anonymous Coward says:

Re: Re: Re:

Thanks for your sincere answer. You unfairly misjudge me. My question was sincere and I’m sorry I dont fully understand all the nuances here. I have no dog in this fight, given that I’m not an American and not living in the states anymore. I was just questioning whether the motivation should be a factor besides the letter of the law in determining whether a law is constitutional or not because I see a slippery slope there. You have led me to see that this case illustrates that motivation of the lawmakers matters or should matter as in determining the constitutionality of a law. Thank you.

Samuel Abram (profile) says:

Re: Re: Re: Re:

Look, it’s just that we have a lot of trolls arguing in bad faith coming here. While I cannot speak on That One Guy or Stephen T. Stone, if we are rude to people, it’s because said trolls come here and ask questions like yours (which you did in good faith), but in a cynical manner to get a rise out of people.

Please don’t hold it against us, it’s just that a lot of trolling can indeed train one’s behavior.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: Re: Re: Re:

If that was an honest question on your part then sorry if my comment came off unfairly aggressively, as Samuel noted TD suffers from a number of grossly dishonest trolls and the hypothetical you proposed struck me as so different from what was actually happening that it came across as a deliberate strawman and I have basically zero patience with those I perceive as arguing in bad faith.

As for your question motivation absolutely matters(as noted by Radix above firing someone is legal, firing someone as retaliation for reporting abuse is not), the thing is while usually politicians are smart enough to cloak any unconstitutional or sleazy motivations behind grand and legal justifications the trio here were stupid enough to say the silent part out loud and admit that this is about punishing the MLB for speech, which is a huge no-no when the government’s doing it and took a legal action(removing an anti-trust exemption) and made it a not so legal action(punishing a group for legally protected speech).

Had they simply proposed removing the anti-trust exemption and found a legal justification for it the timing would have been questionable but it probably wouldn’t have been enough to tank the bill, but by admitting to their motivations they’ve not just tip-toed into unconstitutional territory they made a jet-pack assisted vault into it.

Scary Devil Monastery (profile) says:

Re: Re:

"According to the logic employed here if I understand correctly, if the bill would not been passed but for that person’s support, would the law that the bill becomes be then deemed "unconstitutional" even though the provisions in the bill are inherently not unconstitutional?"

You need to learn to read. A bill doesn’t change constitutionality no matter who comments on it.
Cruz and Hawley, however, have changed the bill.

"Sounds absurd to me, the logic of yours."

Classy move, Baghdad Bob. Claim the OP said something which – looking back to the OP – they didn’t say at all. Then chew them out for it. As if we needed further proof that you’re a troll…

Scary Devil Monastery (profile) says:

Re: Re: Re:

[Edit]

Should have been; "A bill doesn’t change constitutionality no matter who comments on it. Cruz and Hawley, however, have changed the legal classification of the bill."

Antitrust legislation in itself is not bad. Punitive measures however, over speech? Suddenly the bill isn’t antitrust anymore. It’s a violation of 1A.

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