Interpreting by the book: legislative drafting manuals and statutory interpretation.

• Author: Ard, B.J.

At oral argument in Carr v. United States, (1) Justice Alito surprised petitioner's counsel by questioning him on two authorities that neither party had briefed: the Senate Legislative Drafting Manual (Senate Manual) (2) and the House Legislative Counsel's Manual on Drafting Style (House Manual). (3) The parties were doubly surprised because these manuals had appeared in only one prior Supreme Court opinion. (4)

Drawing on these manuals, Justice Alito posited that there is a "universally accepted modern legislative drafting convention that statutes should ... [a]lways use the present tense unless the provision addresses only the past, the future, or a sequence of events that requires use of a different tense." (5) In light of this drafting convention, Justice Alito questioned whether the present-tense language of the Sex Offender Registration and Notification Act of 2006 (SORNA) limited the Act's application to postenactment conduct or merely reflected the default drafting style. (6)

Citation to the manuals notwithstanding, the majority found that presenttense language usually does not apply to past conduct and held that the Act applies only to postenactment conduct. (7) Specifically, the majority ruled that, under SORNA--which allows conviction if an individual (1) is required to register under SORNA, (2) "travels in interstate or foreign commerce," and (3) "knowingly fails to register or update a registration" (8)--interstate travel prior to the passage of SORNA cannot be a basis for conviction. (9)

Justice Alito, joined by Justices Thomas and Ginsburg, argued that the majority employed the wrong frame of reference. The dissent made even greater use of the manuals to argue that the majority's position "flies in the face of the widely accepted modern legislative drafting convention that a law should not be read to speak as of the date of enactment" but instead "as of any date on which it is read." (10) Combining this convention with the premise that all laws should be drafted in the present tense, the dissent reasoned that when one reads SORNA "as of the time when such a pre-SORNA conviction takes place, every subsequent act, including movement from State to State, occurs in the future and is thus properly described using the present tense." (11)

Even though the manuals did not carry the day in Carr, the question of whether they should be accorded substantial weight remains open. (12) The United States federal government, the majority of states, and the District of Columbia have compiled manuals of this type to offer guidance to drafters. To date, no scholar has examined these manuals in any detail, and they are seldom cited in the federal courts. (13)

This Comment pursues two aims. First, it provides a brief overview of the types of advice contained within the House and Senate manuals. The contents of these manuals range from advice on what language to use so that an act will be properly interpreted to directions for formatting--including requirements for font size and line justification. Interestingly, federal courts have relied on drafting manuals in only three instances. In these instances, the courts ignored references to specific rules of construction or precedent and, instead, took note of advice aimed more generally at structure and the use of language.

Second, this Comment addresses the puzzle that these authorities pose for textualists. While these manuals generally support the textual canons and other textual tools of interpretation, it is unclear whether these manuals, which few people read, illuminate the ordinary meaning of the text or obscure it. In weighing the manuals' authority, it is instructive to contrast the manuals with other types of extrinsic sources, particularly dictionaries and legislative history.

The Comment concludes by arguing that the manuals are compatible with textualism because they are a credible form of extrinsic legislative material. They provide evidence of what drafters mean when they employ certain language.

1. CONTENTS OF THE MANUALS

   The House and Senate manuals provide several types of instruction to the drafters of legislation, ranging from the template that drafters should use to format and structure legislation to the substantive conventions that drafters should employ to choose language. The substantive conventions can be further divided into those that explicitly reference established canons or precedent and those that merely imply the established rules by directing drafters to write in a certain way.

   1. Legislative Boilerplate

      A significant portion of each manual instructs drafters on how to format a bill or amendment. Most of this material is of only passing interest to courts and attorneys. For example, the House Manual devotes two full pages to the proper font size and alignment for various section headings, (14) and both manuals devote substantial space to describing the formatting options for bills and amendments. (15)

      Even though these sections deal merely with the structure of legislation rather than its substance, they have proven important in one Supreme Court case and its progeny. Koons Buick Pontiac GMC, Inc. v. Nigh addressed the interpretation of the Truth in Lending Act (TILA) as amended in 1995. (16) Prior to the amendment, clause (i) of 15 U.S.C. [section] 1640(a)(2)(A) allowed an individual to recover twice the finance charge for a civil violation of the Act with respect to a consumer loan, while clause (ii) imposed liability for violations of the Act with respect to leases and established a $1000 cap on "liability under this subparagraph." (17) Courts had construed this limitation to apply to consumer loan actions under clause (i). (18) This construction made sense because clause (ii) limited liability under subparagraph (A), to which clauses (i) and (ii) belonged.

      The settled understanding of this cap was disturbed by the addition of a new clause in 1995. Clause (iii) provided a cause of action for certain transactions secured by real property or a dwelling and specified that damages would be "not . . . greater than $2,000." (19) In the lower courts, Nigh successfully sued Koons under clause (i) for over $1000. His argument proceeded in two parts. First, it made no sense to apply the $1000 cap to liability under clause (iii), because it had a separate $2000 cap. Second, since the cap did not apply to clause (iii), it should not apply to clause (i), which contained no cap of its own.

      Justice Ginsburg, writing for the majority, rejected Nigh's argument. She directly referenced both the House and Senate manuals for their explication of the difference in subsections, paragraphs, subparagraphs, and clauses--which are nested in this order--to support her argument that "Congress ordinarily adheres to a hierarchical scheme in subdividing statutory sections." (20) Under this scheme, any reference to subparagraph (A) includes clauses (i)-(iii). In light of this structure and the lack of evidence that Congress intended to upset the prior understanding of the statute, she concluded that the $1000 limitation still applies to clause (i). (21) This deployment of the manuals is particularly interesting because, despite the fact that the analysis is textual and structural, it does not neatly map onto traditional canons of construction in the same way as the substantive conventions described next.

   2. Substantive Conventions

      1. Direct References to Canons, Precedent, and Code

         A few provisions from the manuals are written in anticipation of judicial interpretation. These provisions are self-conscious because they reflect an awareness of statutory language as the object of the courts' attention. They reference established canons of construction, Supreme Court precedent, and the United States Code to advise drafters on how courts are likely to interpret certain language. There are few provisions of this nature, and no courts have cited them.

         Each manual makes reference to how courts will apply one or more canons. Section 316 of the Senate Manual discusses ejusdem generis. (22) The manual explains that the inclusion of "but is not limited to" in a list is redundant "because ejusdem generis relates only to the kind or class of persons or things that are unspecified and does not preclude the inclusion of other unspecified persons or things." (23) Section 324 of the Senate Manual alerts drafters to the canon against implied repeals by advising that courts are likely to interpret statutes that are arguably inconsistent as being consistent, even "at the risk of reaching a far-fetched interpretation of I or both of the provisions." (24) Section 201 of the House Manual cites the "doctrine that variations within a law are designed to convey meaning"--a way of phrasing the canons of consistent usage and meaningful variation--as the reason to employ a uniform drafting style. (25) More bluntly, Section 105 of the Senate Manual states that "[a] court presumes that different words have different meanings" and "that every word is there for a reason." (26)

         The manuals also advise drafters on Supreme Court precedent with respect to two issues. Both manuals identify the legal precedent on severability, citing INS v. Chadha (27) and Buckley v. Valeo, (28) to advise drafters that a "severability clause is unnecessary" unless Congress intends to make certain portions of a statute unseverable. (29) Additionally, the manuals cite United States v. Lopez (30) to advise drafters that congressional findings must be...