For all intents and purposes: what collective intention tells us about Congress and statutory interpretation.

• Author: Wright, Abby

INTRODUCTION

While courts in the United States frequently invoke legislative intent and legislative purpose (1) when interpreting statutes, legal scholars have long questioned whether a multimember body like Congress can have purposes or intentions. Drawing on the philosophical literature on collective intention, this Comment argues that Congress, when enacting statutes, is the type of social organization that has intentions. The same literature on collective intention, however, counsels caution in expanding the list of mental states one should ascribe to Congress.

This Comment begins by defining the contours of legislative intent and legislative purpose and then explore why relying on legislative purpose is appealing to courts. Next, the Comment describes a variety of theories of collective intention and looks in depth at the work of Raimo Tuomela. Third, the Comment analyzes Congress's characteristics as a social entity and applies Tuomela's account of collective intention to Congress, concluding that this account demonstrates that Congress, at least under certain circumstances, can have intentions. The argument runs as follows: to be a member of Congress an individual must agree that when legislation is being written, amended, and voted on certain members of Congress will become "operative" members. Once a bill is passed, all members of Congress have an obligation to accept, at least weakly, that text as the group's intention; the minority members of Congress have agreed to "give up their will with respect to group-binding group-goal formation [in this instance the text of the statute that was passed] and transfer that right to the operative members." (2)

Finally, this Comment argues that while legislative purpose is an appealing tool for determining the scope of statutes, analyses using "legislative purpose" are misguided because the uniqueness and complexity of Congress as a social group limits the application of theories of collective retention. (3) Members of Congress cannot be said to have agreed in advance to accept the larger purposes and hopes that various members of Congress might possess when enacting legislation. Therefore, when a judge purports to base a decision on legislative purpose, if the decision is to be justified, it must be supported by considerations extrinsic to the legislative process and any theory of collective intention.

1. LEGISLATIVE INTENT AND PURPOSE IN STATUTORY INTERPRETATION

   1. Hibbs and Allapattah

      In the 2003 Term, a divided Supreme Court decided Hibbs v. Winn, (4) bringing the hotly contested concepts of legislative intent and legislative purpose to the fore. The respondents in Hibbs challenged an Arizona law that provided a tax credit for contributions to organizations awarding scholarships to children attending private, and possibly religious, schools. (5) The issue before the Court was whether the Tax Injunction Act (TIA) (6) prohibited a suit to enjoin a state tax credit of this kind. (7) The TIA states that "district courts shall not enjoin, suspend or restrain the assessment, levy, or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." (8) The majority ultimately determined that the TIA did not bar such a suit because neither the word assessment nor the statute's underlying purpose prohibited a suit where the repeal of the tax would increase the state's finances.

      The Court began its analysis with a somewhat strained study of the language of the statute and determined that the term assessment has a "collection-propelling function." (9) Thus, according to the majority, a lessening of state tax burdens would not fall under the TIA's terms because it would not be an assessment, levy, or collection of tax. Crucially, however, the Court went on to analyze the purpose of the TIA, concluding, in agreement with Judge Easterbrook, (10) that [section] 1341's purpose was to "restrain state taxpayers from instituting federal actions to contest their liability for state taxes, but not to stop third parties from pursuing constitutional challenges to tax benefits in a federal forum. (11)

      Justice Kennedy, in his dissent, responded with a vigorous disagreement over the meaning of assessment as used in the TIA. He stated that "an assessment ... must at the least encompass the recording of a taxpayer's ultimate tax liability." (12) Thus, enjoining the Arizona tax credit in question would affect the assessment of a state tax because it would alter the amount of tax recorded for the taxpayer. Justice Kennedy rejected the idea that the TIA's purpose could have an independent, interpretive life of its own, stating that "the scope and purpose of the Act should be understood from its terms alone." (13) Justice Kennedy further noted that an interpretation of the TIA as prohibiting any interference with state tax schemes "accords with the direct, broad, and unqualified language of the statute.... [W]hen terms are unambiguous we may not speculate on probabilities of intention.'" (14) For Justice Kennedy, the words of the statute are what should determine its application; the broader legislative purpose of a statute should have no separate role in interpretation.

      While Justice Kennedy was in the minority in Hibbs, he wrote the majority opinion for a similar statutory interpretation case, Exxon Mobil Corp. v. Allapattah Services, Inc., (15) decided quite recently. The Allapattah Court held that 28 U.S.C. [section] 1367 "authorized supplemental jurisdiction over all claims by diverse parties arising out of the same Article III case or controversy." (16) Justice Kennedy reaffirmed his belief that "[e]xtrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature's understanding of otherwise ambiguous terms." (17) The debate between majority and dissent, however, centered on the proper reading of the statute and not the role of legislative history and legislative purpose. (18) Only Justice Stevens' dissent invoked the statute's legislative history; (19) the main dissenting opinion did "not rely on the measure's legislative history." (20) Thus, while Allapattah demonstrates the continuing debate over techniques of statutory interpretation, the actual issue was not, as in Hibbs, the validity of legislative purpose.

      For the respondents in Hibbs and Allapattah, the 5-4 decisions mean that one Justice's theory of statutory interpretation determined the success of their claim. These cases illustrate how divisive the debates over the use of legislative intent and legislative purpose have become. While, as in Hibbs and Allapattah, the Justices opposed to the use of legislative purpose can be identified as the more conservative members of the Court, conservative positions are not necessarily aligned with a more restrictive understanding of statutory interpretation. (21) Furthermore, Hibbs is but one example of a long line of cases where a majority has looked to legislative purpose (22) to interpret a statute. (23) The question remains, however, whether this use of legislative purpose (and even legislative intent) in statutory interpretation is justifiable. Furthermore, the inquiry into whether such tools are justified presupposes that legislatures have intents or purposes.

      This Comment seeks to evaluate this claim: that the nature of Congress as a social group is such that Congress has intents and purposes. Without a positive answer to this question, courts arguing from legislative intent or legislative purpose would only be masking other interpretive techniques (be they policy concerns, personal opinion, etc.) when they claim to be relying on a legislature's state of mind. This Comment argues, based on theories of collective intention found in the philosophical literature, that a judge or court can sensibly speak of legislative intent in the narrow sense defined in Part II.A, but not of legislative purpose. Being able to sensibly speak of legislative intent does not mean that a judge or court is necessarily justified in relying on legislative intent in statutory interpretation (24) or that legislative intent is necessarily determinable in every case; this Comment seeks only to answer the more limited question of whether Congress is the type of social group that makes "legislative intent" possible.

   2. The Debate over Legislative Intent

      The use of legislative intent in statutory interpretation has long been controversial. It has been attacked as impossible and unknowable (25) and, even if possible, irrelevant (26) to the task of statutory interpretation. Much recent literature, however, has defended the use of legislative intent in statutory interpretation. Some literature has viewed questions of legislative intent in light of the nature of language itself (27) or the nature of our concepts about the actions of multi. member organizations. (28)

      Although some of the literature supporting the use of legislative intent has styled itself as a response to textualism, a more moderate version of textualism need not exclude the use of legislative intent in statutory interpretation. (29) Textualists take the position that "statutory text is the most determinate basis for statutory interpretation." (30) Even though the text may be the central focus of the interpretive task for a textualist, textualists arguably still recognize the role of legislative intent, but simply seek to limit evidence of intent almost entirely to the text itself. (31) Thus, the trend seems to be towards an acceptance of the necessity of legislative intent, even if in a much reduced form. (32)

      Despite the recent warming to legislative intent, old doubts remain about the possibility of discerning intent when the intent in question must emanate from a group of persons, especially a group with as varied an array of aspirations, agendas, and motivations as Congress. (33) These concerns are even more...