[Legality Challenge] - Repeal GA759

by **Simone Republic** » Tue Nov 26, 2024 5:29 am

https://www.nationstates.net/page=UN_vi ... 1732524590

Not forum drafted. This is solely on the grounds of new legislation rather than veracity. "Article 3: Recommendations for Responsible Reforms" amounts to new legislation. I think this is actually weaker (because it explicitly says "recommends") but I'd challenge it anyway as per Jinkies and Attempted Socialism.

Proposal

by **Haymarket Riot** » Tue Nov 26, 2024 5:40 am

[Not a ruling]

I've voted to hear this one. Here's what I've said on discord regarding proposals of this variety:

I would call this illegal. It's my opinion that the most a repeal should be able to recommend is a replacement that addresses [xyz], it should not endeavor to address [xyz] itself. This is because I would be most concerned that repeals cannot themselves be repealed, and thus must never be in danger of making a future resolution in danger of contradiction by virtue of that repeal's text.

There is very little, if any, precedent on the New Legislation rule. Anything we rule on here is bound to be the foundation of future rulings, and I'm happy with that standard.

by **Barfleur** » Tue Nov 26, 2024 10:42 am

I have seconded the vote to hear this challenge.

by **Comfed** » Tue Nov 26, 2024 4:17 pm

I don't know if the peanut gallery is allowed to chime in at this point, but if we are, I would agree that the repeal is illegal. While repeals have generally (to my knowledge) been allowed to express aspirations for what future legislation may do, this is doing something (encouraging - so a weak thing) by itself. Article 3's language is more of the type of thing that I would expect to see in a mild strength resolution.

by **Barfleur** » Wed Nov 27, 2024 8:28 am

GenSec has voted to hear this challenge.

(Also, in response to Comfed, input from the public is welcome if it is substantial and on-topic.)

by **Imperium Anglorum** » Mon Dec 02, 2024 10:50 pm

On my own initiative, and at my own expense (RGDA 1.1), I want to give some musings. There are essentially three (somewhat) mutually exclusive ideas for how to settle this challenge.

The first is to find the proposal illegal for bringing new legislation, reading hortatory language as being "new legislation". This vision also would treat language in repeals and in positive language identically, as [2022] GAS 4 did. However, such a finding would partially overrule [2022] GAS 4 ¶ 4 which "overrule[d] the old optionality rule's traditional interpretation that a member nation is bound to receive a recommendation" and rejected the idea that the "same hortatory language (eg encouraging further legislation) is a 'requirement' in positive legislation but not new legislation in repeals". With that decision's holding overruled, it has also been suggested to fold what was initially an optionality opinion into the strength rule, moving things about to iron out the wrinkle that the overruling of precedent caused. I can think off-hand some benefits for doing these together: (1) it moves [2022] GAS 4, which has not entirely stood the test of time given how people still confuse its core holding with strength, into strength and (2) it preserves the existing holding that an encouragement creates a latent blocker against the opposite by nullifying the possibility of repeals having such encouragements. See [2017] GAS 11.

The second is to find the proposal legal, reading hortatory language as not being "new legislation" and affirming [2022] GAS 4 ¶ 4's holding that hortatory language is actually optional. However, if [2022] GAS 4's position that language in repeals and in positive legislation should be treated to the extent possible in the same way, because this would have the effect of creating the possibility of unrepealable encouragements which implicitly block the opposite action per [2017] GAS 11. With that not being possible due for policy reasons, that decision must then be overruled. There are reasons also to prefer this solution. (1) Getting rid of [2017] GAS 11 has a positive effect on new authors who can then just ignore the status quo's addition of latent blockers to hortatory language. (2) It would preserve the holding from [2022] GAS 4 that hortatory language is optional since, in all practical terms, it is. (3) And if the rule change is also done it finally puts to grave the ex post rationalisation mindfuckery that is "a member nation is bound to receive a recommendation".

If it is assumed that the same language in repeals and in positive legislation should be treated identically, a decision on this matter one way or the other will require something to get overruled. It has also been proposed not to do that.

That is, a third option, which is to treat language in repeals and positive legislation separately. Encouragements in repeals may be made (or not?) but they have no blocking effect. Unlinking the two avoids the issue with [2017] GAS 11's latent blockers and only overrules the dicta in [2022] GAS 4 ¶ 4 which seeks to establish the same treatment of language for repeals and positive legislation. There are also reasons to prefer this solution. It minimises the disruption to existing precedent. (But in doing so also foregoes the benefits discussed in the above solutions.) It also essentially fixes the hypothetical of "what if GenSec misses a repeal which makes some encouragement": we would be forced to treat that encouragement as having no blocking effect anyway and just treating repeals that way is an elegant solution to the issue. It could be combined with one or even both of the proposed rule changes which would apply in their respective spheres only.

Anyway, that's the menu so far. Multiple members, myself included, are essentially agnostic as to which of the options should be chosen. There are good reasons to choose each one and the costs for each are roughly of the same magnitude (especially after bundling rule changes that get rid of the most costly elements of each). I've actually already written mutually-exclusive draft opinions for the first two. I myself am interested in community feedback on which option the community believes we should pick.

by **Bananaistan** » Wed Dec 04, 2024 4:36 am

I haven't exactly followed how [2022] GAS 4 has worked out in practice but IIRC I was opposed to that precedent for reason I now can't recall. But I note that in your "first" paragraph it would appear that it hasn't worked out all that great in practice.

IMO then there's no need to get too bogged down. The simplest solution is to overturn [2022] GAS 4 (which I remember is bad but not why) and the straightforward and easy interpretation for everyone is that repeals can encourage the WA to do something but not individual nations because encouraging individual nations is attempted legislation. Again trying to pull out foggy memories - I am somewhat but not completely certain that this was the rule/interpretation in the past. I believe it is the easiest for everyone to understand.

by **Attempted Socialism** » Wed Dec 04, 2024 5:15 pm

I don't think we should be discussing this as just hortatory language in a repeal. Sure member states are only encouraged, but the things they are encouraged to do are definitely positive law. This repeal would have enshrined some policies that would never be repealable.
This particular hortatory language gets into iffy territory. We generally accept language like "desiring a resolution without these flaws" or "suggesting that a replacement solves this issue" or what have you, but those are in essence the WA suggesting to itself, and in a way that only suggests that a resolution should be passed, not the specific content of that resolution. We can look at the contradiction rule for an analogy. Usually a repeal with hortatory language only gesticulates to a future, less flawed, resolution. A replacement can't meaningfully contradict such language. But a replacement would actually be able to contradict the suggestions as made in this resolution.

by **The Overmind** » Wed Dec 04, 2024 8:25 pm

Bananaistan wrote:I haven't exactly followed how [2022] GAS 4 has worked out in practice but IIRC I was opposed to that precedent for reason I now can't recall. But I note that in your "first" paragraph it would appear that it hasn't worked out all that great in practice.

IMO then there's no need to get too bogged down. The simplest solution is to overturn [2022] GAS 4 (which I remember is bad but not why) and the straightforward and easy interpretation for everyone is that repeals can encourage the WA to do something but not individual nations because encouraging individual nations is attempted legislation. Again trying to pull out foggy memories - I am somewhat but not completely certain that this was the rule/interpretation in the past. I believe it is the easiest for everyone to understand.

Attempted Socialism wrote:I don't think we should be discussing this as just hortatory language in a repeal. Sure member states are only encouraged, but the things they are encouraged to do are definitely positive law. This repeal would have enshrined some policies that would never be repealable.
This particular hortatory language gets into iffy territory. We generally accept language like "desiring a resolution without these flaws" or "suggesting that a replacement solves this issue" or what have you, but those are in essence the WA suggesting to itself, and in a way that only suggests that a resolution should be passed, not the specific content of that resolution. We can look at the contradiction rule for an analogy. Usually a repeal with hortatory language only gesticulates to a future, less flawed, resolution. A replacement can't meaningfully contradict such language. But a replacement would actually be able to contradict the suggestions as made in this resolution.

I broadly agree with this. The distinction between a repeal with proposed legislative solutions and a repeal which legislates is the target of its encouragements. Once it starts encouraging WA member nations, rather than the WA itself, to do or not do something, it is legislating.

by **Imperium Anglorum** » Fri Dec 06, 2024 9:32 pm

*** Opinion of the Secretariat ***
Proposal: Repeal "Prohibition on Coerced Testimony"
Date: 6 Dec 2024
Decision: Proposal is illegal, 0–6
Action: New legislation, 0–6

Imperium Anglorum wrote the opinion, joined by Separatist Peoples, Desmosthenes and Burke, The Ice States, and Haymarket Riot. Barfleur filed a concurring opinion.

Opinion.

[1] The instant challenge questions whether hortatory language is "new legislation" that violates that eponymous rule. We find in the affirmative. A repeal which encourages a member nation to make an act or omission is new legislation for the purposes of that rule. This finding is most consistent with historical practice, which has repeatedly discarded repeals which encourage member nations to do things. Moreover, Freedom to Seek Care [2017] GAS 11 – finding that encouraging some policy blocks bans on that policy – militates such a finding: if read consistently with hortatory language in primary legislation, such language in repeals would create "permablockers" which prevent the opposite policies from being enacted.

[2] International Art Gallery [2022] GAS 4 ¶ 4 held otherwise, however. As explained there: "the same hortatory language (eg encouraging further legislation) is a 'requirement' in positive legislation but not new legislation in repeals", implying that such hortatory language is optional and therefore not new legislation. A majority exists to overrule that holding.

[3] The parenthetical quoted above also raises an important point. Clauses such as "replacement for this vital legislation should be passed", GA 624 Repeal "Whistleblower Protection Act" s 4, are not affected by this decision. The only hortatory language which is barred in repeals are those which encourage a member nation, contra the Assembly, to make an act or omission. Encouraging a hypothetical replacement does not entail the blocking behaviour in ¶ 1; it is therefore okay.

Concurrence (Barfleur).

[4] This matter is before us on a new legislation challenge. A majority of the board, myself included, holds that the proposal is illegal. While I reach the same outcome, I believe there are additional points that require explanation.

[5] Clause 3 of the challenged proposal, "Repeal 'Prohibition on Coerced Testimony'", provides that "member states are encouraged to" take take specific actions. It is undeniable that a hortatory clause - one which encourages, but does not require, any action - has no mandatory or coercive effect. No nation is required to do anything or run into the shoals of noncompliance; no person is subject to sanctions for a violation. Member nations and entities therein, to paraphrase our operative clause rule, remain just as free to do as they wish as they were in the absence of such a clause.

[6] But the strongest argument against a new legislation violation is one of game mechanics. It is axiomatic that there exist two kinds of World Assembly resolutions: repeals and non-repeals (positive resolutions). The former merely strike existing law off the books; the latter create new law. This distinction is not merely a roleplaying convention; it is coded into the site itself. It is not mechanically possible to repeal a repeal, meaning that once a repeal is passed, its text is law forever. It is for that reason that we cannot remove a recipe for an Orange Julius from the books, no matter what circumstances may have intervened in the years following that entry. A repeal which encourages member nations to promote the use of boron fuels would permanently preclude a future resolution banning them, say, on the grounds that their exhaust endangers the health of ground grew members. As a matter of public policy, treating hortatory clauses in repeals as actionable new legislation necessarily sets them in stone as unrepealable legislation - something that the rules expressly forbid, through the blocker rule. "Repeal-proof" laws were the default when the World Assembly's predecessor body was first established, a mechanic that was changed by moderation and administration in response to community demands. Holding otherwise in this case would undo that change, nullify a provision of the blocker rule, and constrain the ability of authors to legislate.

[7] The only logical way to resolve this dilemma is as follows: repeals, which cannot themselves be repealed, may only repeal. They may not require any action or encourage anything by an entity other than the World Assembly itself. This "inverse operative clause" rule respects the fundamental difference between repeals and positive legislation and ensures that the range of possible actions by the World Assembly does not become constricted by the progress of time.

2024gas14. Edit (29 Dec 2024). Posting opinion.

by **Bisofeyr** » Sat Dec 07, 2024 9:25 am

A tad late so I apologize for that, but I do agree that this is illegal for "new legislation", because the encouragement is to member states themselves. Broad suggestions on future replacement provisions ought to be legal under the rule, but that is all an encouragement for future actions of the World Assembly. As Attempted Socialism put it, this is positive law and as such must be repealed.

To encourage specific provisions in repeal, it ought to be read as something along the lines of "Recommending that this Assembly pass future legislation on [x issue] that does/includes [y provision]"

by **Barfleur** » Sun Dec 29, 2024 9:22 am

Bumping to note that opinions have been posted.

by **Elyreia** » Tue Dec 31, 2024 3:39 am

Barfleur's contribution I think helps place a second layer of armor on the decision, and is one I fully agree with. Not only does this break with longstanding precedent of not legislating with repeals, it would create a loophole to slip further language into future repeals that could not be overturned without a massive legalistic or game mechanics undertaking.

All in all, a very good decision all around by the pinkies.

by **The Overmind** » Tue Dec 31, 2024 10:12 am

Elyreia wrote:All in all, a very good decision all around by the pinkies.

Pinkies sounds really close to Pinkertons, and there's a joke in there somewhere

[Legality Challenge] - Repeal GA759

[Legality Challenge] - Repeal GA759

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