Update on FTPB Discussion of Legislative History (3/18/26)

I have substantially revised the legislative history discussion in my Federal Tax Procedure Working Draft for the 2026 editions (Student and Practitioner) to be published on SSRN in early August 2026. As currently revised, the text (without footnotes as it will appear in the Student Edition, although those wanting the draft with footnotes in the Practitioner Edition may view it here):

                                      (5)    On Legislative History.

          I noted above the controversy between textualists and purposivists over the role that legislative history should play in statutory interpretation. Legislative history is the course of congressional consideration in identifying the need for legislation, drafting or revising the bills (the “drafting history” for enacted statutory text), expressions by persons involved in the process as to how they understood the text of the bills, and the final statutory text. The principal sources of legislative history for statutes are the drafting history and the committee reports which I discuss below. (For tax legislation, the legislative history may also include proposals from Treasury (analogous to drafting history) and Treasury’s explanation of the proposals, most commonly along with Treasury’s annual budget request with tax proposals referred to as the Green Book.) Other sources include committee hearings, statements made on the floor of Congress in debating the legislation, and submissions to Congress by the executive branch. There is a long and substantial history of judicial use of legislative history in statutory interpretation, particularly in the tax area.

          Legislative history is a broad term, with some legislative history more persuasive than others (at least for those willing to consider legislative history). In terms of the legislative process and reliable indicators of the meaning of statutory text, the committee reports accompanying legislation are generally viewed as a reliable form of legislative history (eclipsed only by conference committee reports discussed below). In both houses, proposed legislation is generally first considered substantively in committees which generally give the most detailed consideration of proposed statutory text; those committees often hold hearings to discuss legislative proposals and then prepare reports explaining the proposed statutory text that they send to the floors of their respective Houses. The meaning of particular statutory text that is then enacted may be discussed in those hearings or in the committee reports.

          For tax legislation, because of the historic influence of the tax writing committees and their staffs and the assistance of the Joint Committee on Taxation (“JCT”), the committee reports of the House Ways and Means Committee and the Senate Finance Committee have been the most frequently used legislative history guide to interpreting the statutory text. Often said to rank even higher than committee reports in authoritativeness is the particular form of legislative history accompanying and explaining statutory text produced in a Conference Committee to work out differences in legislation between the two Houses of Congress. In considering legislative history in a particular case, it is important to understand the legislative processes that produced the legislative history and whether those processes make the legislative history a reliable indicator of the actual or deemed meaning of the statutory text.

           A common textualist claim, even an article of faith (or ideology) for some, is that legislative history should not be considered in statutory interpretation because only the text of the statute was enacted by Congress. So the claim goes, legislative history represents at most only the views of the subset of members of Congress who produced the legislative history; moreover, in the eyes of some, legislative history may be slanted by “technocrats, lobbyists, and attorneys” with an agenda other than faithfully discussing the text enacted. For textualists, use of material extraneous to the statutory text (including, most prominently, legislative history) “greatly increases the scope of manipulated interpretation, making possible some interpretations that the traditional rules of constructions could never possibly support.” However, even textualists sometimes cite drafting history (a form of legislative history) and even other forms of legislative history but claim to avoid the use of legislative history to “muddy the meaning of the clear statutory language.” In other words, textualists–at least true textualists–may use legislative history when it confirms their determination of the text’s plain or ordinary meaning but claim not to use legislative history when the legislative history is inconsistent with their determination of the plain or ordinary meaning. (However, one author has noted that Supreme Court textualist Justices may smuggle in legislative history by relying on cases that relied on legislative history.)

          Where are we now on the judicial use of legislative history in statutory interpretation? In a 2019 concurring opinion, Justice Gorsuch said: “Members of this Court sometimes disagree about the usefulness of pre-enactment legislative history.” And, in the Circuit Courts, a study based on a dataset of more than 240,000 majority opinions indicated that even textualist judges most likely to be influenced by Justice Scalia’s rejection of legislative history tend to use the more persuasive types of legislative history (such as conference and committee reports). The authors thus conclude that judges “appear to have accepted the hierarchy of legislative materials that had previously prevailed–and  that Scalia had rejected.” Justice Scalia, the authors claim, “influenced, but he did not persuade.” An outstanding article by Professor George K. Yin, former JCT Chief of Staff, debunked Justice Scalia’s claims about legislative history for tax legislation because of the expertise offered by the JCT and care generally taken in crafting the tax statutes and legislative history.

           The Court’s rejection of Chevron Deference in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) may resurrect the use of legislative history.  I discuss Loper Bright and its ripples in more detail beginning on p. ?. I offer here only a high-level summary for the possibility that Loper Bright might result in more judicial use of legislative history: Loper Bright says that a court must reach the best interpretation of statutory text no matter how ambiguous the text. (Careful readers will note that saying there is the determinable best interpretation of ambiguous text is an oxymoron because ambiguous text, by definition, does not permit determining the best interpretation; set that conundrum aside for the moment because I deal with it in the discussion of Loper Bright.) If a court applies the best interpretive tools other than legislative history, and still believes the statute is ambiguous as between (or among) the proffered interpretations, would a court not at least consider legislative history for whatever value it offers to resolve the remaining ambiguity? I just ask the question as at least one other has also.

           This discussion has addressed the use of legislative history in interpreting statutory text. I tend, like Justice Breyer, to ask why not use legislative history if, after considering all of its potential problems, it informs as to what Congress thought it was enacting. Indeed, even for those asserting primacy of the original public meaning (rather than Congress’s intent), legislative history would be some evidence as to what the text would have meant to a contemporaneous hypothetical reader of the text, for the legislators involved in the legislative history knew how to express themselves in contemporaneous meanings of text. But, as indicated, there is a strain of jurists and pundits who claim to oppose legislative history without qualification (except perhaps when it confirms their preferred reading of the statutory text).