Leviathan and interpretive revolution: the administrative state, the judiciary, and the rise of legislative history, 1890-1950.

• Author: Parrillo, Nicholas R.
• Position: III. Explaining Normalization: The New Administrative State G. The Minimal Role of the Lower Courts through Conclusion, with footnotes and appendices, p. 365-411

G. The Minimal Role of the Lower Courts

The lower courts were not an important source of the Supreme Court's citations to legislative history during the period of normalization. Legislative history did not "bubble up" from below. In my sample of federally briefed statutory cases in 1940-45, only 7% of the legislative history citations could be matched to citations in the corresponding lower-court cases. For my sample of non-federally-briefed statutory cases in 1940-45, the figure was again 7%. (340)

This suggests that the normalization of legislative history was a top-down phenomenon, originating in the Supreme Court. This is understandable. The Supreme Court itself had extraordinary manpower per case, and the federal bureaucracy was most likely to invest in legislative history research when the stakes were high, as in Supreme Court litigation. (341) Relatedly, a crude search of the Westlaw database indicates that, during the early 1940s, the U.S. circuit courts were about one-fourth as likely to cite at least some legislative history in a case on a federal statute as was the Supreme Court. (342) More refined data, for a somewhat later period, has been collected by Glenn Bridgman, pursuant to his important recent study of the use of legislative history in the U.S. Courts of Appeals in 1950-2006, which employs innovative electronic counting methods. (343) Bridgman's data indicate that, over the period 1950-60, the number of legislative history citations in all published decisions of the Supreme Court was 37% greater than in all published decisions of the U.S. circuit courts combined, (344) despite the fact that the circuit courts issued more than twenty times as many published decisions as did the Supreme Court during those years, (345) with little difference in the proportion of decisions that interpreted federal statutes. (346) Consistent with this, Ray Stringham wrote in 1961 that the "United States Supreme Court has been the open leader in the movement" for using legislative history. (347) Stringham criticized the Court's enthusiasm for legislative history, in part because the Justices too often decided cases on the basis of such material when it had not been briefed in the lower courts. (348)

4. LEGISLATIVE HISTORY AS A STATIST TOOL OF INTERPRETATION

   The federal administrative state was the dominant force in the normalization of legislative history as a tool of statutory interpretation. Federal lawyers almost always briefed more legislative history than other lawyers before the Court; provided a very disproportionate share of the citations in the Justices' opinions; and even served as the hidden source for some of the Court's "internal" research capacity, via library donations and responses to ex parte inquiries. Legislative history was therefore a statist tool of interpretation, in the sense that the administrative state enjoyed privileged access to such material and was a privileged provider of it to the Court, more than was true of other interpretive sources, such as statutory text.

   But legislative history was also statist in a deeper sense. The federal bureaucracy was a privileged participant in congressional discourse, and legislative history had the potential to extend that privilege into the courtroom. As I discuss in Section IV.A below, the federal government in 1940-45 frequently invoked legislative history in order to show that (1) congressmen intended for a bill to mean what the agency had told them it meant, or (2) congressmen, having been apprised of how an agency was interpreting a particular statute, acquiesced in the agency's view. And these were only the explicit briefs; surely numerous other invocations of legislative history by the federal government rested on congressional utterances that had been ghostwritten (or at least influenced) by agencies and thus reflected the bureaucratic agenda. By invoking legislative history, the bureaucracy advertised and leveraged its constant, intense engagement with the body that officially originated the norms to be implemented. At times, this may have been a ventriloquist's performance, with Congress as the puppet, though in other instances it presumably relayed a serious dialogue between lawmakers and bureaucrats (even if the government expertly presented the dialogue as favorably to itself as the record would allow).

   In any event, legislative history served to deliver the bureaucracy's views to the judiciary clothed in the mantle of congressional authority, and this at the very moment when the Court had recognized such authority as virtually unlimited in the economic sphere. The Court's acceptance of legislative history as a normal interpretive source in 1940-45 was of a piece with its larger acceptance (at that same moment) of an agency-centered vision of governance, with a diminished role for the judiciary and for the sources farthest inside the "comfort zone" of judges. (349)

   Though "statist" is a fitting label for legislative history, the term requires two qualifications, each of which has to do with a peculiar aspect of the American bureaucratic state. The first qualification, which I discuss in Section IV.B, concerns judges. Though legislative history was outside the traditional judicial "comfort zone," the Supreme Court in 1940-45 did acquire some capacity to use it independently, as if learning a second language--one that the Roosevelt Court, given its extraordinary institutional resources and the administrative experience of several of its members, was more suited to acquire than were courts generally. By learning this second language, the Court--even as it acquiesced in an agency-centered view of governance--preserved a degree of autonomy for itself, ensuring that judicial review of administrative action would still have some bite. American governance has long been marked by a judiciary that is both separate from the bureaucratic state and willing to scrutinize that state. Despite their general friendliness to administrative governance, the Roosevelt Justices, by becoming skilled in legislative history, ensured that such separateness and scrutiny would not be extinguished.

   The second qualification, which I discuss in Section IV.C, concerns nonfederal lawyers. In congressional discourse, the most privileged participants (apart from congressmen themselves) were the agencies, but there was also a role for lobbyists, many of them lawyers. This reflected the peculiar openness of the legislative process in America (given its weak parties) to industry-specific and cause-specific advocacy. Judicial reliance on legislative history privileged lawyer-lobbyists above the general population of lawyers (if not to the same degree as it privileged the agencies). And another American peculiarity--the tendency of government to exchange personnel with law firms and lobbying firms through the proverbial "revolving door"--meant that advocates who produced and briefed legislative history in the agencies would frequently migrate to the private sector, where they would do the same thing (if on a smaller scale). As lawyers exited the government after the New Deal and World War II, they created a new kind of law firm--the "Washington law firm"--staffed by veterans of the administrative state and dedicated to constant lobbying of that state and of Congress. Accordingly, these firms would assemble libraries of legislative history that imitated the libraries of the agencies. Such firms were like adjuncts of the bureaucracy, and their clients-a select group of big corporations-benefited from a competence in legislative history approaching that of the leviathan.

   A. Legislative History to Bless the Bureaucratic Agenda

   In many instances, the federal government argued for its preferred interpretation of a statute by citing legislative history to show that the agency, in proposing the measure, had put congressmen on notice that it would have that meaning. In a case on the Walsh-Healey Act, which empowered DOL to define prevailing wages required of federal contractors in each "locality," the government contended that DOL had wide discretion to define "locality," partly because similar acts had been construed that way in state cases, one of which had been "specifically called to the attention" of the House Subcommittee by the Acting Solicitor of DOL. (350) In American Trucking, the government sought an expansive reading of the FLSA by arguing that the carve-out for trucking employees to be covered by the ICC was narrow: the ICC had asked the Senate Committee for power to regulate only a particular subset of trucking employees, and the lower court had erred in holding that the ICC "had been granted a power for which it had not asked." (351) In a fight over whether a 1934 statute criminalizing false statements to the government covered oil-men's lies to the Interior Department about illegal interstate shipments, the government invoked the Department's pleas to Congress to enact the statute, which congressmen had acknowledged by stating the measure was "proposed by the Department of the Interior for the purpose of reaching" those very oil-shipment deceptions. (352) Later, when defending the Grazing Service's use of its rulemaking power to impose licensing and fee requirements on stockmen during the Taylor Grazing Act's phase-in period, the federal lawyers cited statements of agency officials at committee hearings that (it was said) made clear to congressmen that such interim measures would be necessary. (353) In a case on bank robberies, the government explained that the DOJ had initially proposed a bill with broad liability, only to have Congress cut it back before enacting it. This led to bad results, showing that DOJ's original proposal had been wise, and Congress, realizing its error, acceded to DOJ's recommendation for an amendment. The legislative history (said the government's lawyers) showed that "the prime purpose of the amendment ... was the same as...