Victoria Nourse (Georgetown University Law Center) has posted two interesting articles on SSRN.
The first is Elementary Statutory Interpretation: Rethinking Legislative Intent and History (Boston College Law Review, Vol. 55, pp. 1613-1658, 2014) on SSRN. Here is the abstract:
This article argues that theorists and practitioners of statutory interpretation should rethink two very basic concepts — legislative intent and legislative history. Textualists urge that to look to legislative history is to seek an intent that does not exist. This article argues we should put this objection to bed because, even if groups do not have minds, they have the functional equivalent of intent: they plan by using internal sequential procedures allowing them to project their collective actions forward in time. What we should mean by legislative “intent” is legislative “context.” For a group, context includes how groups act — their procedures. Once one accepts this position, we must rethink the very concept of legislative history. Legislative history is not a search for a mental state, behind the words, but a search for decisional context. We should give up talking about legislative history, replacing it with the far more helpful notion of legislative decision and statutory context.
Also this one: The Constitution and Legislative History (University of Pennsylvania Journal of Constitutional Law, Vol. 17, pp. 313-363, 2014). Here is the abstract:
In this article, the author provides an extended analysis of the constitutional claims against legislative history, arguing that, under textualists’ own preference for constitutional text, the use of legislative history should be constitutional to the extent it is supported by Congress’s rulemaking power, a constitutionally enumerated power.
This article has five parts. In part I, the author explains the importance of this question, considering the vast range of cases to which this claim of unconstitutionality could possibly apply — after all, statutory interpretation cases are the vast bulk of the work of the federal courts. She also explains why these claims should be of greater concern to a variety of constitutional theorists, particularly those who embrace theories of popular and common law constitutionalism, but as well to originalists.
In part II, the author considers the textualist arguments against the constitutionality of legislative history. Article I, Section 7 provides that any bill must pass the House and the Senate and be presented to the President for veto or signature. As a number of textualists have argued, legislative history is not passed by both houses or signed by the President. Call this the “bicameralism argument.” Her answer to the bicameralism argument lies in a constitutional text that statutory textualists seem to have forgotten: Article I, Section 5 gives explicit power to Congress to set its own procedures, a power that gives legitimacy to legislative history created pursuant to those procedures. In fact, new developments in statutory interpretation theory (decision process theory) suggest that, in some cases, the only way to resolve textual conflict is to consider legislative procedure.
In part III, the author considers a second prominent argument against the constitutionality of legislative history: non-delegation. Critics argue that Congress may not delegate the “legislative power” granted under the Constitution to members or committees, as only the entire Congress may constitutionally exercise that power. Call this the “non-delegation” argument. Again, her response is based on constitutional text: Article I, Section 5 specifically sanctions delegation to less than the whole of Congress; more importantly, there is no general norm against self-delegation stated explicitly or even implicitly in the Constitution. Finally, the author suggests that there is a certain inconsistency in the assertion of these claims: the non-self-delegation and bicameralism arguments can both be used to indict canons of construction, which textualists offer as the leading alternative to legislative history, but which have no supporting text comparable to Article I section 5 in the Constitution.
In part IV, she considers arguments that judges’ use of legislative history violates the separation of powers because it allows the legislature to exceed the bounds of the “judicial power.” This argument can rather easily be turned on its head: in the quotations offered at the beginning of this article, members of Congress argue that judges are exercising the “legislative power” when they rewrite statutes without considering legislative history. As has been argued at length elsewhere, the use of “adjectival” argument in structural controversies — relying upon the terms “legislative, executive, and judicial” — perpetuates a weak understanding of the separation of powers, and one that the Constitution’s own text belies. The separation of powers does not prevent recourse to legislative history; in fact, as the article explains, blindness to legislative history may create different kinds of structural risks — risks to federalism, rather than risks to the separation of powers.
Finally, in part V, the author concludes by suggesting that we should retire the strong form of the legislative history unconstitutionality argument, by which she means the claim that the constitution bars any and all legislative history. Instead, we should far more actively interrogate serious questions about the use of legislative history in particular cases. Can it really be wise — or even constitutional — for a judge to impose a meaning on an ambiguous statute with reference to the statements of a filibustering minority, or privilege some texts in ways that violate Congress’s rules? Fidelity to Congress, and the importance of Congress’s constitutional rules — what Francis Lieber once called the “common law” of the Congress — has yet to be theorized within this more pressing, but particular, sphere.
You've heard this before, but I can't help pointing out again that the squabble over text versus legislative history in statutory interpretation is an intramural argument among originalists (or, it would be so recognized if we were talking about the Constitution instead of statutes). Legislative history is just another way to get at original meaning (or original understanding, if you prefer), as these articles make clear.
So, if you're not a constitutional originalist, you need either to explain why statutory originalism (which so many people just assume to be the right approach) is wrong, or you need to explain why constitutional originalism is different from statutory originalism. I'm not saying that either can't be done, but they aren't done very often.
Posted at 6:09 AM