#11535 - Legislative History As Acceptable Or Unacceptable Source Of Authority - Legislation and Regulation (Admin Law)

LEGISLATIVE HISTORY (as acceptable source of authority)

1. Justifications for using LH include:

   1. Expertise

   2. Delegation by Congress to particular members/committees to explain bills—other Congressmen often form their opinions based on the sponsor’s statements.

   3. Electoral accountability

2. Committee Reports

   1. These are the reports prepared by the House and Senate committees, who are said to have developed specialized and valuable expertise in certain subject areas.

   2. Most reliable form of LH.

   3. Use is justified as the lesser of two evils—even if committees do not perfectly reflect the median of legislators’ preferences, as a matter of probability, committee reports seem to offer the “best available evidence” of the common legislative understanding of the way statutory words had been used in context.

3. Statements of Individual Legislators

   1. Generally the statements made by bill’s sponsors, but also include statements made by the rank-and-file members during floor debates, and colloquies between legislators and witnesses at committee hearings.

   2. A sponsor’s statements have been held to be weighty and authoritative because he may offer an especially well informed view of the factual, legal, or policy context against which it was drafted

      1. Because the sponsors are the members of Congress most likely to know what the proposed legislation is all about, and other members are expected to pay heed to their characterizations of legislation, such statements may be accorded special weight.

4. Floor Statements in General

   1. Notwithstanding these concerns, the Court has occasionally treated floor debates as useful evidence of legislative intent, like when floor debates as a whole corroborate other evidence of meaning of demonstrate a widespread sense of the legislation’s objectives.

5. Successive Versions of a Statute

   1. The Court has generally found it uncontroversial to consider changes in wording in successive versions of a bill.

6. Subsequent Legislative Action (or Inaction)

   1. When courts look to “post-enactment legislative history” they are drawing inferences about the meaning of enacted text from legislative choices other than the choice to enact that text.

   2. Silence/Acquiescence: The most common form of post enactment legislative history involves situations of alleged legislative acquiescence in a judicial or administrative construction of an ambiguous statutory provision.

      1. If Congress has persistently remained silent in light of judicial or administrative decisions, this may amount to an implicit legislative decision that the prior decision was correct.

      2. John R. Sand & Gravel Co. v. United States

         1. “Stare decisis in respect to statutory interpretation has “special force” for Congress remains free to alter what we have done.”

   3. Negative Action: In another form, members of Congress have brought some judicial or administrative decision to the attention of Congress, and Congress has rejected bills that would have overturned that decision.

      1. The case for standing by a precedent is strengthened to the extent that the precedent has been the focus of sustained efforts by members of Congress to change the law: The more salient the judicial or administrative the decision, the more Congress’ failure to overturn it will seem like a deliberate choice to the Court.

      2. Congressional inaction in the face of an invitation for action is more likely to indicate approval of that which Congress lets stand than total silence.

      3. Flood v. Kuhn

         1. In 1922, Justice Holmes declared that baseball was not commerce and therefore not subject to the Sherman Anti-Trust Act.

         2. Fifty years later in 1972, after the expansion of Congress’ powers under the commerce clause, the Court rejected the another antitrust challenge to baseball, observing that baseball’s exemption from national anti-trust laws was a problem familiar to Congress, which had declined to enact more than 50 bills relative to the applicability or non-applicability of the antitrust laws to baseball.

         3. The Court’s justification for this strong adherence to stare decisis was the failure of numerous bills to overturn the decision.

   4. Ratification: A variant on the legislative acquiescence situation may arise when Congress reenacts a piece of legislation that has been authoritatively interpreted by a court or agency, or extensively amends such legislation without overturning the prior interpretation, or enacts substantially identical language in a new statute—this is sometimes taken to be a form of ratification of the prior interpretation.

      1. When Congress enacts terms that had been previously construed by courts, the courts often assume that if Congress is silent about endorsing the use of the term, it acquiesced in the meaning.

      2. “Ratification” is thought to be less controversial than acquiescence because it is the product of an affirmative act of legislation.

      3. Even textualists accept this as indicative of legislative approval

7. North Haven Board of Education v. Bell (decided prior to Casey’s was widely accepted—Court did not have to find ambiguity before looking to LH)

   1. Facts: The Department of Health Safety and Welfare, interpreting “person” in Title IX of the Civil Rights Act to encompass employees as well as students, included among the regulations it promulgated pursuant to that statute, a series of regulations that dealt with employment practices. Petitioners challenged HEW’s authority to issue the regulations, contending that Title IX was only meant to target discrimination in regard to the availability or implementation of educational programs.

   2. Applicable Statutory Language: Title IX of the Civil Rights Act says “No person…shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance, except that…”

   3. Issue: Whether employment practices were within the scope of the statute.

   4. Holding: The Court held that the legislative history corroborated its reading of the statutory language, that employment discrimination comes within the prohibition of Title IX.

   5. Plain Meaning

      1. Majority says that the statute is clear and “no person” meant that the statute reached employees as well as students.

         1. Also, Title VI, from which Title IX was copied almost verbatim, explicitly excludes employment, which suggests Title IX, which lacks this exclusion, includes employment.

      2. Dissent says that the plain meaning of the statutory language indicates that its scope is limited to discrimination against those who are enrolled in, or denied the benefits of, any educational program or activity

   6. Legislative History

      1. Because Title IX did not explicitly exclude or include employees, the Court turned to LH.

         1. Senator Bayh’s description indicates that it was aimed at discrimination in education and employment.

            1. The Court held that though the statements of one legislator made during debate may not be controlling, Bayh’s remarks, as those of the sponsor of the language ultimately enacted, are an authoritative guide to the statute’s construction.

            2. Also, there were no committee reports that discussed the provisions and Bayh’s remarks were the only authoritative guide to the statute’s construction.

         2. The House, whose version of the provision provided that nothing in the title authorized application to employment practices, receded to the Senate’s version, which did not include the limitation.

            1. The Court held that this omission suggested that Congress intended the Act to prohibit gender discrimination in employment.

            2. The dissent said that the limiting language was deleted because they were modifying three statutes at once, and that much of it had to do with employment—they had to exclude the limitation to help avoid conflict.

      2. The dissent said that LH should be relied on rarely and that if used it must clearly and unambiguously show that Congress intended what it failed to say, which was not the case here.

         1. At the same time Title IX was being drafted, Title VII (employment) and the Equal Pay Act were amended to explicitly proscribe discrimination in educational institutions on the basis of sex. Congress wouldn’t have enacted a third statute addressing the same problem without using explicit language.

      3. Post-Enactment History

         1. HEW submitted its regulations to Congress for review. The Court said that Congress’ failure to disapprove the HEW regulations, while not necessarily demonstrating that it considered those regulations valid and consistent with legislative intent, did lend weight to the argument that coverage of employment discrimination was intended.

         2. Also, Congress had refused to pass bills that would have amended Title IX to limit its coverage of employment discrimination.

         3. The Court held that post-enactment history could not be accorded the weight of contemporary legislative history but that it provided additional evidence of the intended scope of Title IX.

   7. Canons

      1. Expressio Unius—The Court held that the list of exceptions, which lacked a specific exclusion for employment, supported the conclusion that Title IX’s broad protection of persons extended to employees.

LEGISLATIVE HISTORY (as unacceptible source of Authority)

8. Textualists will never resort to using LH, even when they accept other extrinsic sources to clarify ambiguous text and even when the subsequently clarified text is in tension with purpose.

   1. They argue that LH is qualitatively different from other extrinsic aids (dictionaries, case law, canons) because legislative actors are responsible for generating LH and may often do...