Legislative History

There has long been debate among many legal scholars as to whether or not “legislative history” can or should be used by the courts to determine the “legislative intent” of congress with regard to particular a statute.  An excellent explanation of both sides of this debate can be found in Chapter 8 of William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation, (2^nd ed, 2006), Foundation Press, New York, NY, from the Concepts and Insights Series of study aids (available at the Reference Desk: KF 425 .E834).  The majority of information contained in this tab came directly from Legislation and Statutory Interpretation. 

Considering the many varieties of documents that can be produced during the legislative process, there has naturally developed a hierarchy of importance among the courts that one should considering when reviewing legislative history.  Below is a list on the generally agreed upon hierarchy of sources to consult when trying to determine legislative intent.

Hierarchy of Documents / Priority of Importance:

• Statutory text
• Where the language of the text is clear, courts will generally not turn to legislative history. 
• Courts have developed a few different tests to determine if further investigation is necessary:
• The Plain Meaning rule,
• Liberal v. Strict Construction,
• Presumptions and the Clear Statements rule, as well as
• Other constitutional and interpretive considerations. 
• (See Chapter 9 of Legislation and Statutory Interpretation mentioned above for a full discussion of the “cannons of statutory interpretation.”)
  
  
• Caselaw
• Obviously, any prior interpretations by the courts must be considered via case law.  If intent of legislation has already been interpreted, the courts will generally not review legislative history again.
  
  
• Committee Reports
• Committee Reports are quite useful in that they provide an overview of the policy need for the statute (general intent) and often discuss individual provisions of a statute and how they may relate to one another when read as a whole (specific intent).
• Committee Reports are published in USCCAN and are widely available online.
• Keep in mind that Committee Reports are subject to attack as they may actually reflect the agenda of the committee behind the legislation rather than the entire chamber, so care should be taken when considering the persuasive power of committee reports.
  
  

After review of these three primary sources of legislative intent, the remaining priorities vary from statute to statute based on how much documentation was actually generated by congress while debating and passing the bill including:

• Conference Reports (joint explanatory statements and sponsor statements)
  
  
• Drafting and Deliberation History
• Congressional debate (especially bill sponsors)
• Changes in text of bill between versions
• Congressional hearings (especially agency witnesses)
• Committee Prints (studies and drafts)
• Markup amendments and other committee documents
  
  

Finally, “non-congressional” sources can be considered such as:

• Presidential Signing Statements, and
  
  
• Secondary sources: newspaper articles, investigatory reports, and other press coverage of the time period can be an interesting source for legislative insight.

Once you have found some history that may lead to legislative intent, below are some considerations to keep in mind when determining the amount of weight that should be given to the document:

• Legislative language
• Provision context and earlier bill versions
• Was bill introduced that way?
• Was provision commented upon in hearings?
• Was it inserted in committee?
• Was it reported that way, and what did the committee say about it?
• Did the provision come from just the Senate or House?
• Were there references in the Congressional Record? 
• What did key sponsors say?
• Did provision appear in Conference Report, and was it explained?
• Did president mention the provision in the signing statement?
• Would one interpretation be illogical or unconstitutional?

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