Article Title
Putting Legislative History to a Vote: A Response to Professor Siegel
Abstract
In a previous article, I argued that, properly understood, textualism implements a special form of the nondelegation doctrine, one that prohibits legislative self-delegation.' If the judiciary accepts certain types of legislative history (committee reports and sponsors' statements) as "authoritative" evidence of legislative intent in cases of ambiguity, then the particular legislators who write that history (the committees and sponsors) effectively settle statutory meaning for Congress as a whole. Against the background of such a judicially fashioned interpretive practice, when Congress passes a vague or ambiguous statute, it thereby implicitly delegates its law-elaboration authority to legislative agents, who effectively fashion the details of meaning outside the enacted text. As a result, rank-and-file members of the majority can vote for the statute without having to vote (and thereby assume responsibility) for the details authoritatively elaborated by their agents. Much existing Supreme Court case law suggests precisely this result. But I find it problematic.
In particular, I have argued that the Court's separation-of- powers case law powerfully undermines any approach to legislative history that generally treats it as authoritative. Although the Court routinely sustains legislative delegations of law-elaboration authority to other branches,8 it has strictly barred Congress from delegating such authority to its own agents, noting that self- delegation poses too great a threat to the constitutionally prescribed process of bicameralism and presentment. The reason is power to control. " Id. at 732, 733 n.252 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).