In FS Credit Opportunities Corp.v. Saba Capital Master
Fund, Ltd., 608 U. S. ____ (2026), decided June 22, 2026, SC here*
and GS here**,
the conservative and liberal Justices fussed about the proper role of
legislative history in statutory interpretation. That fussing interested me because I had recently
made substantial revisions to that fuss in my 2026 Working Draft of my Federal
Tax Procedure book (Student and Practitioner Editions). I don’t think the
fussing in FS Credit adds anything meaningful to the discussion, but it does
offer a handy opportunity for those interested in the issue to be up to date on
the Supreme Court’s views. So, I thought that, in addition to notifying readers
and providing links to the Opinions, I would offer the current treatment of the
issue from the Working Draft (due for publication on the SSRN platform in early
August 2026). The Practitioner Working Draft (with text and footnotes) may be
viewed or downloaded here.
The Student edition is the Practitioner Edition text without the footnotes, so
for readers generally I just copy and paste here the text only:
(5) Legislative History in Statutory
Interpretation.
The
pre-enactment history of enacted statutory text may be important in
interpreting the enacted text (just as, for example, the history of the
drafting and ratification of the Constitution may guide its interpretation).
Relevant history is often discussed in two broad categories: Statutory History
and Legislative History. (Actually, statutory history (defined below) is a
subset of legislative history, but it is not uncommon to treat the two as
separate categories.) Both types of history stop upon enactment of the
statutory text being interpreted; at least conceptually, since the focus is on
the meaning of the text upon enactment, there is no such concept as subsequent
legislative history which at best would be comments on the meaning of the
previously enacted text. (I return to subsequent legislative history below,
beginning on p. 34.)
Statutory
history can include two broad categories: (i) enacted text only, including
enacted text that has been revised by enacted text over time (call this
category “enacted statutory history”); and (ii) the changes in the text of
bills as they move through the legislative process to enactment (“drafting
history”). Enacted statutory history considers only enacted text and any
interpretive inferences that may be drawn from enacted text; drafting history
also considers drafts of the text as it moved and changed through the
legislative process. Textualists use enacted statutory history to draw
inferences of enacted text meaning. Sometimes, textualists resort to drafting
history treating it somewhat like enacted statutory history in drawing
interpretive inferences.
Legislative
History includes all documents the legislature may have generated or considered
in enacting the statutory text that might permit inferences as to the meaning
of the enacted statutory text. Legislative history is the course of
congressional consideration in identifying the need for legislation, drafting
or revising the bills (the “drafting history” and statutory 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.
