A decision theory of statutory interpretation: legislative history by the rules.

• Author: Nourse, Victoria F.
• Position: II. Simple Principles for Reading Legislative History, p. 90-134

2. SIMPLE PRINCIPLES FOR READING LEGISLATIVE HISTORY

Courts and scholars make sweeping statements about legislative history: it is far too complex and heterogeneous to be understood; always manipulated or produced by non-legislators; generated by a "chaotic" or "tortuous" institution. (80) As Adrian Vermeule has insisted, these are empirical claims. (81) In theory, they may be falsified. My argument will not resolve the empirical questions at a high level of generality. To do that would require a much larger study. (82) But my argument does suggest that such claims may be falsified in individual high-profile cases regularly taught and debated by legal scholars and, if so, that we must question at the very least what we are teaching students and what we as scholars are arguing about. We cannot know that legislative history is impossibly complex unless we look at the hard case for the critics--when legislative history is easy and at its best.

Legislative history is at its best when understood within Congress's own rules. Just as no one would try to understand the meaning of a trial transcript without understanding the rules of evidence or civil procedure, no one should try to understand legislative history without understanding Congress's own rules. This does not resolve, as we will see, the ultimate empirical question, but neither does it posit some vague normative ideal, borrowed from political theory or constitutional thought, to answer central interpretive questions. (83) Of course, some will charge that my examples are anecdotal or particularly friendly to the argument. If so, they are no worse than the standard fare, as claims both for and against legislative history rely upon precisely the same "friends" I invoke here. (84) At its most minimal, my claim is for one simple, but powerful, canon of construction: just as Congress is presumed to know and follow the "surrounding body of law," (85) there should be an even stronger presumption that Congress knows and follows its own rules. (86)

1. First Principle: Never Read Legislative History Without Knowing Congress's Own Rules

   Consider an easy example based on an apparently hard case. Public Citizen v. U.S. Department of Justice (87) involved the American Bar Association's recommendations to the President on judicial nominations. The question raised was whether the ABA had to satisfy the Federal Advisory Committee Act (FACA), which requires certain governmental entities "established or utilized" (88) by the President to open their meetings, balance their membership, and release public reports. (89)

   Today, Public Citizen is taught as a controversial case. For textualists, the majority opinion commits judicial surgery, cutting the word "utilized" from the statute. As Justice Kennedy wrote in his concurrence, it is hard not to believe that the ABA was in fact being "used" by the President. (90) Any conclusion to the contrary depended on how the absurdity canon was applied. The majority argued that if "utilize" meant "use," in the ordinary sense, then it would yield absurd results, covering a meeting of the President with the NAACP or his own political party. (91) Ultimately, the majority decided to read the relevant statutory term--"utilize"--in a technical rather than "ordinary meaning" sense, as something of a repetition of the statutory term "establish," a result that seems odd as a linguistic matter, but avoided apparent absurdity. (92) Among textualists, the majority opinion raises eyebrows not only for its apparent judicial surgery, but also for its use of the much-debated absurdity canon and constitutional avoidance. (93)

   There was an easier way to resolve Public Citizen, although this road was taken neither by the majority opinion (which performed the apparent surgery) nor by the concurrence (which concluded the statute could not be constitutionally applied to the President). The answer lies in understanding when Congress added the term "utilize" to the statute. No lengthy legislative history is necessary to find the answer. The term "utilize" first appears in the conference committee report resolving House and Senate differences on FACA. Conference reports are moments when Congress must resolve disagreements between texts; more specifically, between the House and Senate versions of a bill. (94) This was certainly true in Public Citizen. The Senate bill going to conference covered committees "established or organized" by the President; (95) the House bill used the term "establish." (96) In other words, the votes in both the House and the Senate prior to the conference were for "establish" and at the most "established or organized." The term "utilize" was nowhere in sight. Indeed, "utilize" was added in the conference committee, contrary to the bills passed in both House and Senate.

   That "utilize" first appears in the conference report should raise a red flag for anyone knowledgeable about Congress's rules. Conference committees cannot--repeat, cannot--change the text of a bill where both houses have agreed to the same language. (97) Both House and Senate rules bar such changes. (98) These rules limit opportunism by conference committees' members and ex post control by drafting committees, since drafters are typically appointed as conferees and thus get another shot at legislation they themselves drafted. Even if these rules are flouted at times, members have an incentive to follow them lest the bill be stalled by a point of order (99)--a formal objection to proceeding with the bill as violating the rules-precisely at the point when the maximum effort has been expended toward passage. (100)

   In Public Citizen, the conference report was simple, strong, and proximate legislative history. It was the last act on the precise statutory term at issue-"utilize." Viewed within the Principles outlined above, a court should defer to the meaning demanded by Congress's own rules. According to congressional rules, the conferees had no power to change the text in any significant way and therefore a judge should interpret "utilize" precisely as a member of Congress would interpret it--as making no significant change to "established or organized." Ironically, this is precisely the result the Court reached, albeit in ways that seem highly strained and controversial. (101)

   The point of my proposed canon is lint to undermine text. One might argue that, since no Senator or House member objected to the term "utilize," it should be given a full and independent meaning. But this, again, violates the rules and the custom of the trade; at the stage where members are voting for a conference report, this is not a new bill and no amendment may be offered. A faithful member of Congress would assume that, when both houses pass the same language, any added language must be read as making no substantive change in the bill. It is in this sense that a court applying this Principle is not itself violating the rules of Congress: it is not ignoring the text as passed but rather interpreting it in light of what the congressional rules say about how a faithful congressional agent would interpret any last-minute conference additions. A faithful textualist should apply this interpretation as well, given that the Constitution requires deference to Congress's rules. (102)

   This is particularly important in cases of demonstrable ambiguity or potential absurdity, which was the case in Public Citizen. When a statute is capable of two meanings (here "utilize" can be read in a prototypical ordinary-meaning sense or in a technical meaning-for-this-statute sense), a court may look to legislative history to resolve the ambiguity. If the ambiguity is created in conference committee, (103) as it was here, then the court may resolve the ambiguity by conforming to Congress's own rules. Those rules tell the congressperson to assume that the conference has not changed in any significant way the meaning of any text passed by both houses. Under the conference committee rules, a member looking at the term "utilize" would either object (in which case the language would be subject to debate and potential change) or assume that utilize did not, per the rules, change the meaning of "establish" in any significant way. (104) That is how the judge should interpret the meaning of "utilize" as well. If courts must respect Congress, as all statutory interpreters agree, then judges should interpret the meaning of "utilize" in the same way that Congress would.

   This analysis requires no lengthy exegesis of the law's full legislative history, focusing instead on statutory history (which, as the history of the statute's text, has always had a better pedigree than legislative history). (105) All this analysis requires is looking at the bills passed by the House and the Senate and finding that the key statutory term was added at conference. Even if one were to invoke the entire conference report, it is a mere thirteen pages long, eight pages of which are statutory text. (106) This is hardly the excessive "volume" or "heterogeneity" (107) that has been asserted by legislative history's critics. More importantly, if this analysis is correct, it avoids all sorts of rather controversial questions: it turns a case that is quite difficult on questions of absurdity, (108) constitutional avoidance, and the President's power to nominate into a far more straightforward case. Relying on the rules of the conference allows a judge to defer to Congress's decisions and, at the same time, restrains judges from picking out friends or enemies in the legislative history or even the text. (109)

2. Second Principle: Later Textual Decisions Trump Earlier Ones

   Historians worry about using the present to interpret the past. Precisely the opposite presumption should apply in reading legislative debates. The very notion of legislative "history" should be treated as a misnomer. In legislative debates, sequence is important. Later textual...