Legislative History

Question 1

Consulting Legislative History: Office of Legal Policy

Answer 1

Prioritize the actual meaning over the intended meaning, as legislative history often prioritizes one voice out of many voices.

1. Consider the importance of the presentment requirement - legislative statements don’t go through a presentment period.
2. Reps/Sens. sometimes plant statements in the record so as to affect the way in which courts interpret particular provisions.
3. Legislative history should be consulted only to ascertain the actual meaning of words, not the intended meaning of words.

Question 2

Consulting Legislative History: Statutory vs. Legislative

Answer 2

Statutory History - drafting or revision history of the relevant statutory text

Legislative History - explanatory statements by legislators, floor debates and the like.

Question 3

Consulting Legislative History: Best types

Answer 3

1. Materials
   a. Committee Reports
   b. House/Senate Reports
   c. Conference Committee Reports
   d. Statements on the Floor
   e. Post-Enactment Statements
2. Perspectives
   a. Supporters
   b. Opponents
3. Timing of Materials
   a. Early materials (pre-passage?)
   b. Late materials (post-passage)

Question 4

Congressional Procedure: Public Citizen rule

Answer 4

1. Look to legislative history before the introduction of FACA
   a. Look to Executive Branch guidance - DOJ guidance and an Executive Order
   b. Look to Legislative Branch guidance - consider any failed legislation
2. Look to legislative history directly related to FACA
   a. House and Senate reports
   b. Conference report and joint explanatory statement

Question 5

Congressional Procedure: Weber revisited

Answer 5

1. Legislative intent divined through
   a. What the House did - Judiciary committee report, Minority report, and the floor remarks
   b. What the Senate did - opening speech (Humphrey), Interpretive memos, debate on a substitute bill.

Question 6

Lawmaking Context: King v. Burwell rule

Answer 6

1. Look to the plain meaning of the text first
2. Look to the context of the provision within the Whole Act
3. Look to Congress’ intent - here, to cover as many people as possible with healthcare.