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Legislative History As Acceptable Or Unacceptable Source Of Authority Outline

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LEGISLATIVE HISTORY (AS ACCEPTABLE SOURCE OF AUTHORITY) i. Justifications for using LH include:

1. Expertise

2. Delegation by Congress to particular members/committees to explain bills---other Congressmen often form their opinions based on the sponsor's statements.

3. Electoral accountability ii. COMMITTEE REPORTS

1. These are the reports prepared by the House and Senate committees, who are said to have developed specialized and valuable expertise in certain subject areas.

2. Most reliable form of LH.

3. Use is justified as the lesser of two evils---even if committees do not perfectly reflect the median of legislators' preferences, as a matter of probability, committee reports seem to offer the "best available evidence" of the common legislative understanding of the way statutory words had been used in context. iii. STATEMENTS OF INDIVIDUAL LEGISLATORS

1. Generally the statements made by bill's sponsors, but also include statements made by the rank-and-file members during floor debates, and colloquies between legislators and witnesses at committee hearings.

2. A sponsor's statements have been held to be weighty and authoritative because he may offer an especially well informed view of the factual, legal, or policy context against which it was drafted a. Because the sponsors are the members of Congress most likely to know what the proposed legislation is all about, and other members are expected to pay heed to their characterizations of legislation, such statements may be accorded special weight. iv. FLOOR STATEMENTS IN GENERAL

1. Notwithstanding these concerns, the Court has occasionally treated floor debates as useful evidence of legislative intent, like when floor debates as a whole corroborate other evidence of meaning of demonstrate a widespread sense of the legislation's objectives. v. SUCCESSIVE VERSIONS OF A STATUTE

1. The Court has generally found it uncontroversial to consider changes in wording in successive versions of a bill. vi. SUBSEQUENT LEGISLATIVE ACTION (OR INACTION)

1. When courts look to "post-enactment legislative history" they are drawing inferences about the meaning of enacted text from legislative choices other than the choice to enact that text.

2. Silence/Acquiescence: The most common form of post enactment legislative history involves situations of alleged legislative acquiescence in a judicial or administrative construction of an ambiguous statutory provision. a. If Congress has persistently remained silent in light of judicial or administrative decisions, this may amount to an implicit legislative decision that the prior decision was correct. b. John R. Sand & Gravel Co. v. United States i. "Stare decisis in respect to statutory interpretation has "special force" for Congress remains free to alter what we have done."

3. Negative Action: In another form, members of Congress have brought some judicial or administrative decision to the attention of Congress, and Congress has rejected bills that would have overturned that decision. a. The case for standing by a precedent is strengthened to the extent that the precedent has been the focus of sustained efforts by members of Congress to change the law: The more salient the judicial or administrative the decision, the more Congress' failure to overturn it will seem like a deliberate choice to the Court. b. Congressional inaction in the face of an invitation for action is more likely to indicate approval of that which Congress lets stand than total silence. c. Flood v. Kuhn i. In 1922, Justice Holmes declared that baseball was not commerce and therefore not subject to the Sherman Anti-Trust Act. ii. Fifty years later in 1972, after the expansion of Congress' powers under the commerce clause, the Court rejected the another antitrust challenge to baseball, observing that baseball's exemption from national anti-trust laws was a problem familiar to Congress, which had declined to enact more than 50 bills relative to the applicability or non-applicability of the antitrust laws to baseball. iii. The Court's justification for this strong adherence to stare decisis was the failure of numerous bills to overturn the decision.

4. Ratification: A variant on the legislative acquiescence situation may arise when Congress reenacts a piece of

legislation that has been authoritatively interpreted by a court or agency, or extensively amends such legislation without overturning the prior interpretation, or enacts substantially identical language in a new statute---this is sometimes taken to be a form of ratification of the prior interpretation. a. When Congress enacts terms that had been previously construed by courts, the courts often assume that if Congress is silent about endorsing the use of the term, it acquiesced in the meaning. b. "Ratification" is thought to be less controversial than acquiescence because it is the product of an affirmative act of legislation. c. Even textualists accept this as indicative of legislative approval vii. North Haven Board of Education v. Bell (decided prior to Casey's was widely accepted---Court did not have to find ambiguity before looking to LH)

1. Facts: The Department of Health Safety and Welfare, interpreting "person" in Title IX of the Civil Rights Act to encompass employees as well as students, included among the regulations it promulgated pursuant to that statute, a series of regulations that dealt with employment practices. Petitioners challenged HEW's authority to issue the regulations, contending that Title IX was only meant to target discrimination in regard to the availability or implementation of educational programs.

2. Applicable Statutory Language: Title IX of the Civil Rights Act says "No person...shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance, except that..."

3. Issue: Whether employment practices were within the scope of the statute.

4. Holding: The Court held that the legislative history corroborated its reading of the statutory language, that employment discrimination comes within the prohibition of Title IX.

5. PLAIN MEANING a. Majority says that the statute is clear and "no person" meant that the statute reached employees as well as students. i. Also, Title VI, from which Title IX was copied almost verbatim, explicitly excludes employment, which suggests Title IX, which lacks this exclusion, includes employment.

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