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Federal Legislative History

Christopher S. O’Byrne M.L.I.S. Candidate in Law Librarianship

University of Washington Information School

June 28, 2006

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1. What Is Legislative History?

2. Why and How To Use Legislative History?

3. Concerns About Using Legislative History

4. Conclusion

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1. What Is Legislative History?

• Documents from the legislative process

http://www.nd.edu/~lawlib/students/guides/fedleghist.pdf

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For an overview of the legislative process, visit

http://bensguide.gpo.gov/6-8/lawmaking/index.html

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Or…

http://www.senate.gov/reference/resources/pdf/howourlawsaremade.pdf

the 67 page version

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Different versions of a bill can be helpful in determining intent

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Testimony of experts and interested parties

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Published in the Congressional Record

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Generally considered to be the most authoritative source

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2. Why and How to Use Legislative History

• Steven Breyer, “On the Uses of Legislative History in Interpreting Statutes”

• 65 S. Cal. L. Rev. 845

• 5 situations for using legislative history

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[Correcting A Legislative] Drafting ErrorUnited States v. Falvey, 676 F.2d 871 (1st Cir. 1982)

• Federal law makes it a crime to possess “any …counterfeit coins”

• ALL coins?

• Or just U.S. currency?

• No one in Congress intended to protect foreign or collectible currency

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In Sum• Statutes are not always clear

• Research may reveal legislative intent

• Or provide support for your argument

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3. Concerns About Using Legislative History

• Potential for manipulation

• Many times floor speakers are addressing only a few other members of Congress

• …or an empty room

• Comments can be entered into the record in written form

• “Bulleting reform” is illusory

• Potential to disrupt the Consitutional balance of power

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Congressional ConcernsReports are not a product of Congress as a whole

Committees, sub-committees, and two-house conferences

Reports lack the holistic intent of Congress

Unrepresentative materials may be accepted as authoritative

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Bills go unread• 1989 Budget

Reconciliation Act• Thousands of

unnumbered pages tied together with rope

Rep. Christopher Cox

“While reading it was obviously out of the question, it's true that I was permitted to walk around the box and gaze upon it from several angles, and even to touch it.”

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Judicial Concerns

• Selective citation to advance policy agendas

• A.K.A. “Judicial Activism”

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• It is often said that one generally finds in the legislative history only that for which one is lookingJudge Harold Leventhal

“[Using legislative history is like] entering a crowded cocktail party and looking over the heads of the guests for one's friends.”

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Executive Concerns

• Minimizes or ignores the role of the Executive

• President passes upon legislation without the benefit of legislative history

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4. Conclusion • What’s the alternative?• Plain Meaning• Textualism• False appearances of objectivity?

A court cannot interpret a statute …in the absence of context.

The only question is whether it will rely on a context secretly supplied from the judge's own intellect, or will use and acknowledge openly the context supplied by Congressional documents.

Prof. Gregory Maggs

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Looking Ahead: Next Class

• Compiling a Legislative History• Print sources

• Electronic sources

• And even better…

…finding Legislative Histories that someone else has already compiled!

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THE END!

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“The determination of when deference to legislative policy judgments goes too far and becomes abdication of the judicial responsibility, and when scrutiny of those judgments goes too far on the part of the judges and becomes what I think is properly called judicial activism”

S. HRG. 108–135:

CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATEChief Justice John Roberts

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S. HRG. 109-277:

CONFIRMATION HEARING ON THE NOMINATION OF SAMUEL A. ALITO, JR. TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

“[S]ometimes when a case of statutory interpretation comes before a court and your first look at the statute seems to produce an absurd result, let's say, or a very unjust result, then I think the judiciary has the obligation to go back and say, ‘Well, is this really what the statute means?’”

Justice Samuel Alito