Sunday, August 21, 2016

Excellent Law Review Article on Statutory Interpretation and Use of Legislative History (8/21/16)

An  important topic in all tax courses, including Federal Tax Procedure, is statutory construction.  One of the issues I discuss is the use of legislative history in statutory construction.  (See practitioner edition beginning on p. 6 and Student edition beginning on p. 4.)

I have just read a law review article that I think would be a worthy read for those wishing to dig further into the issue.  The article is:  Robert A. Katzman, Madison Lecture: Statutes, 87 N.Y.U.L. Rev. 637 (2012), here.   Katzman is a judge on the Second Circuit and a prominent constitutional scholar in his own right.  I offer below some snippets and my own comments.  In most quotes, I omit footnotes, except in some cases where I think the footnote is important

First, in a bow to James Madison who is often called the father of the Constitution because of his major contribution to the Constitution:
I owe much to James Madison, that diminutive giant, one of the founding architects of our constitutional structure.
Then, the author deploys Madison in support of his argument that legislative history is an important tool in statutory interpretation:
Generally, the interpretative problem arises because the statute is ambiguous. n127 From the start, the founders understood that legislation would often be unclear and admit of differing interpretations. Madison wrote in The Federalist No. 37, describing laws in general:
All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other, adds a fresh embarrassment... . No language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence, it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. n128
   n128. The Federalist No. 37, at 255 (James Madison) (Cynthia Brantley Johnson ed., 2004). It merits a note that Madison and other founders proposed an active role for judges in the legislative process by having members of the Supreme Court serve on a council of revision to help the President exercise the veto power. 2 The Records of the Federal Convention of 1787, at 73-80 (Max Farrand ed., 1911). Such a scheme, argued Madison, would help "preserve a consistency, conciseness, perspicuity & technical propriety in the laws, qualities peculiarly necessary; & yet shamefully wanting in our republican Codes." Id. at 74. With respect, I think that is one proposal whose rejection was well advised.
Katzman's argument is that the rejection of any indication of legislative purpose in enacting a statute is wrong and diminishes the role of Congress.  Congress only passed the statute, to be sure, but it passed a statute in a context that should be considered in its application.  As noted in the books, the most full-throated application of the contrary review -- the only the statute's text should be considered -- was Justice Scalia.  In this context, the author says early on:
By way of preview, it is my contention that in its practices, Congress intends that its work should be understood through its institutional processes and legislative history. These include, for example, committee and conference committee reports that accompany legislative text. Agencies well appreciate and are responsive to Congress's perspective that such materials are essential to construing statutes. What follows, then, reinforces my view that a purely textualist approach, which maintains that judges should restrict themselves only to the words of the statute, is inadequate when interpreting ambiguous laws.
Justice Scalia may not have generally read footnotes as he famously said in oral argument in Flast v. Cohen, but I usually do.  Here is one from the article:
n126. Judge Henry J. Friendly observed: "Illogical though it was to hold that a 'plain meaning' shut off access to the very materials that might show it not to have been plain at all, it was equally wrong to deny the natural meaning of language its proper primacy; like Cardozo's 'Method of Philosophy,' it 'is the heir presumptive. A pretender to the title will have to fight his way.'" Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 206 (1967) (quoting Benjamin N. Cardozo, The Nature of the Judicial Process 9, 32 (1921)).
The dominant mode of statutory interpretation over the past century has been one premised on the view that legislation is a purposive  [*664]  act, and judges should construe statutes to execute that legislative purpose.
That is true, the question is whether the search for purpose is limited to the statute or may include other indicators of Congress' meaning.
Thus, as I have noted, some statutes are precise, specific, and closed-ended, such that the text itself provides definitive direction. Justice Souter said: "The language is straightforward, and with a straightforward application ready to hand, statutory interpretation has no business getting metaphysical." Some statutes deal with subjects where words have specialized meanings. Tax law is an example, as its subtleties are not necessarily obvious in the text itself. Still other statutes are more open-ended in construction, such that agencies and courts must go beyond the text in the interpretative process. For instance, it is not self-evident as to what constitutes "unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce." Nor is it self-evident as to what constitutes a "reasonable accommodation" under the Americans with Disabilities Act. In deciphering statutes, we would do well to remember, as Justice Frankfurter wrote: "Unhappily, there is no table of logarithms for statutory construction... . One or another [item of evidence] may be decisive in one set of circumstances, while of little value elsewhere." If judges exclude legislative history they will eliminate a useful source of information about the law's meaning. Legislative history is not the law, but can help us understand what the law means. Depriving judges of what appeared to animate legislators risks having courts interpret the legislation in ways that the legislators did not intend. The danger, as Justice Breyer observed, is that a court will "divorce[] law from life." Textualists have argued that it is difficult to discern the purposes of 535 legislators, but by eliminating authoritative materials such as committee reports and conference committee reports as interpretative tools - which can provide valuable guides in understanding purpose - they make their interpretative task not only that much harder, but also more prone to incorrect outcomes. Earlier, I explained how those who deal most frequently with statutes - that is, agencies - look to legislative history so as to be faithful to Congress's meaning. Courts should be no different in examining pre-enactment legislative sources that assist the interpretative task.
Legislative history can help provide meaning when a statute is silent or unclear about a contested issue. I have found this to be true in a number of cases on which I have worked on the Second Circuit, including some I mentioned at the outset of this Lecture. Legislative history can be especially valuable when construing a specialized term or phrase in statutes dealing with complex matters beyond the ordinary ken of the judge. In that circumstance, it can aid the judge in understanding how the legislation's congressional proponents wanted the statute to work, what problems they sought to address, what purposes they sought to achieve, and what methods they employed to secure those purposes. Legislative history can be helpful, Justice Stevens commented, "when an exclusive focus on text seems to convey an incoherent message, but other reliable evidence clarifies the statute and avoids the apparent incoherence." And, at times, as I indicated earlier, authoritative legislative history can be useful, even when the meaning can be discerned from the statute's language, to reinforce or to confirm a court's sense of the text. 
When courts construe statutes in ways that respect what legislators consider their work product, the judiciary promotes comity with the first branch of government. It is a bipartisan institutional perspective within Congress that courts should consider reliable legislative history and that failing to do so impugns Congress's workways. Several years ago, then-Congressman Robert W. Kastenmeier (D-WI), the longtime chair of the House Judiciary Subcommittee on Courts, put it this way: Disregarding legislative history "is an assault on the integrity of the legislative process." Senators Orrin Hatch (R-UT), Charles E. Grassley (R-IA), and Arlen Specter (as R-PA), as Republican chairs or ranking members, and Senators Joseph Biden (D-DE) and Patrick Leahy (D-VT), as Democratic chairs or ranking members have consistently supported judicial resort to legislative history; indeed, senators often press that view on judicial nominees at confirmation hearings. 
I include the following because it refers to one of the giants of the tax law, Martin Ginsburg (also known as the late husband of Supreme Court Justice Ginsburg), which reference I bold-face:
Textualists have appropriately identified misuses and manipulation of legislative history. Without doubt, language is on occasion put into committee reports unnoticed by the whole legislative chamber or even by members of relevant committees. Martin Ginsburg, for example, pointed to such excesses in the area of tax legislation, and Senator Moynihan once expressed concern over how report language in one particular piece of legislation was not reviewed by the legislators on the relevant committee. By putting a spotlight on legislative history, the textualist critique has had some effect on individual legislators. Representative Barney Frank (D-MA) reportedly warded off an effort to insert compromise language in a committee report rather than in the bill itself. He did so with two words: "Justice Scalia." Although among Supreme Court Justices, pure textualists can claim only Antonin Scalia and Clarence Thomas as faithful supporters, n197 the textualist critique has had an undeniable impact. Today, it is commonplace for a statutory opinion of a federal court to state: "where the statutory language provides a clear answer, it ends there as well." 
Chief Justice Roberts, who makes use of legislative history, stated at his confirmation hearing that "all legislative history is not created equal. There's a difference between the weight that you give a conference report and the weight you give a statement of one legislator on the floor. You have to, I think, have some degree of sensitivity in understanding exactly what you're looking at ... ." I concur. The task, as Senator Hatch commented, is to draw upon legislative history "properly applied" in "reliable forms," and to separate the wheat from the chaff among legislative materials. For courts, that means in part having a better understanding of the legislative process and appreciating the internal hierarchy of communications. Conference committee reports and committee reports should sit at the top, followed by statements of the bill's managers, with ersatz statements of legislators on the floor - who had heretofore not been involved in consideration of the bill - at the bottom of reliable authority. For Congress, the challenge is to communicate its meaning in ways that assure that the "dignity of legislation," in Jeremy Waldron's felicitous phrase, is preserved and respected. 
In conclusion, my points are simply these. In our constitutional system in which Congress is charged with enacting laws, how Congress makes its purposes known - through text and reliable accompanying materials - should be respected, lest the integrity of legislation be undermined. The experience of the executive branch in interpreting statutes can be helpful to courts. And practical ways should be pursued to further the objective of promoting statutory understanding. With greater sensitivity to the workings of the branches in the lawmaking process, we will be closer to realizing Publius's - most likely Madison's - vision in The Federalist No. 62: "A good government implies two things: first, fidelity to the object of government, which is the happiness of the people[;] secondly, a knowledge of the means by which the object can be best attained." n283
   n283. The Federalist No. 62, supra note 51, at 445 (James Madison). 
I would appreciate readers drawing my attention other worthy articles on this subject, either by comment or by email.

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