The Use of Legislative History in a System of Separated Powers

Legislative history is the ultimate bugaboo of the textualists-those judges and scholars who assert that in statutory interpretation, "[w]e do not inquire what the legislature meant; we ask only what the statute means." The textualists have unleashed argument after argument against legislative history. Textualists assert that judicial use of legislative history seeks a collective legislative intent that does not exist and that would not be law if it did exist. They claim that congressional committees deliberately manipulate legislative history in order to influence statutory interpretation. They argue that legislative history is more ambiguous than the statutes it supposedly clarifies, that it poses a special danger of judicial misinterpretation, and that judges cite it only as a makeweight argument added to decisions already reached on other grounds.

Most of all, textualists claim that judicial reliance on legislative history is unconstitutional. They base their claims on separation of powers principles. Textualists observe that the Constitution vests the legislative power in Congress and that the power is non-delegable. If courts, in the process of statutory construction, consult legislative history created by mere committees or individual Members of Congress, they effectively approve an unconstitutional delegation of the legislative power.

Moreover, textualists argue, the Constitution requires Congress to enact laws using a process of bicameral passage and presentment to the President." Legislative history has not run this difficult gauntlet; it is therefore not law and courts should not consult it.