Thursday, September 22, 2016

Questions for Judge Katzmann

by Michael Dorf

Yesterday, a panel of the U.S. Court of Appeals for the Second Circuit--Chief Judge Katzmann, Judge Hall, and Judge Wesley--heard oral arguments here at Cornell Law School rather than in their usual courthouse at Foley Square in lower Manhattan. Continuing the festivities, today I will moderate a discussion with Judge Katzmann. I plan to ask some questions and then some follow-ups depending on what Judge Katzmann says, before opening the discussion up to the audience.

Of course there are standard questions one asks of a judge in this sort of setting, but I'm going to try to focus on questions that arise out of Judge Katzmann's 2014 book Judging Statutes. The book is more or less a defense of purposivism in statutory interpretation--and especially the use of legislative history as a means of construing vague or ambiguous legislative language. Conversely, the book critiques textualism. Judge Katzmann's excellent and highly readable book illustrates his own views with in-depth studies based on three cases his court decided and that were subsequently reviewed by the Supreme Court.

Here is a preview of three of the lines of inquiry I hope to pursue in our conversation later today. I'll pose them here as though I'm speaking directly to Judge Katzmann.

(1) In making the case for the relevance of legislative history, you argue that Congress itself and the administrative agencies consider legislative history essential to how they create, understand, and administer statutes. But does it follow that courts should resort to the same material? Let me suggest that you need some further argument for that proposition.

Here’s a suggestive metaphor for what I regard as the gap in the argument. Editors of textbooks often also write Teacher’s Manuals, which are available to instructors but not students. The teachers use the manuals to get a deeper understanding of the material and to make lesson plans, but the students don’t have access to them. Might legislative history work similarly? Or consider the owner’s manual of a car. There are a great many documents that are relevant to the production and servicing of a car, but the owner—if she is not an amateur mechanic—only looks at the owner’s manual. I’m not suggesting that either of these examples is anything like a perfect analogy. I’m simply giving them to make the point that it is sometimes sensible for one audience to have reference to a narrower range of documents than another audience. Why do you think that judges should have reference to all of the technical production documents for a statute rather than just the owner's manual?

(2)  In your book, you distinguish between purposivism and textualism, expressing a preference for purposivism. When I teach my students about different approaches to statutory construction, I usually include a third approach: Intentionalism. The chief difference between intentionalism and purposivism is that the former asks what the legislature actually intended, whereas the latter asks what purpose or purposes can reasonably be attributed to a statute and then how best to carry them out. A purposivist might, but also might not, be amenable to consulting legislative history. Do you disagree with this schema? If not, do you consider yourself an intentionalist or a purposivist? Why?

(3) You note in your book that some textualists ground their approach in public choice theory, which you criticize on the ground that it inaccurately disregards the sometimes-public-regarding reasons Congress has for enacting laws. For what it's worth, I agree with your critique of public choice.

You also note, however, that there are other arguments for textualism that do not rely on public choice theory. One leading such argument--originally proposed by Prof. John Manning and later adopted by other textualists--treats textualism as a non-delegation doctrine. When courts treat committee reports, floor statements, and other sorts of legislative history as highly probative of the meaning of statutes, textualists argue, they effectively delegate to congressional staff or to particular members of Congress the task of legislating. But cases like Bowsher v. Synar and Metrop Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise forbid such delegations. Article I, Section 7 says that Congress, not a servant or subset of Congress, has the power to legislate.

You say that the non-delegation argument for textualism is mistaken. You write:
The contention that the use of legislative history violates the constitutional proscription against self-delegation . . . is premised on a mistaken view of the legislative process. Legislative history accompanying proposed legislation precedes legislative enactment. When Congress passes a law, it can be said to incorporate the materials that it, or at least the law's principal sponsors (and others who worked to secure enactment), deem useful in interpreting the law. After all, Article I of the Constitution gives each chamber the authority to set its own procedures for the introduction, consideration, and approval of bills. And each chamber has established its own rules and practices governing lawmaking--some favoring certain proceedings over others--establishing [what Professor Brudney calls] "a resultant hierarchy of internal communications." Those rules and procedures give particular legislators, such as committee chairs, floor managers, and party leaders, substantial control over the process by which legislation is enacted. Communications from such members as to the meaning of proposed statutes can provide reliable signals to the whole chamber.
It seems to me that there are potentially three distinct arguments in that passage. One is simply about timing. It says that because the legislative history process takes place before enactment of the law, giving it effect as law is not delegation. If meant to stand alone, the timing point strikes me as not very forceful. Suppose that a law contained the following clause: "In ascertaining the meaning of Section 2j of this Act, the views expressed by the junior Senator from Vermont prior to the law's enactment shall be deemed authoritative." Or worse: "In ascertaining the meaning of Section 2j of this Act, the views expressed by the Duke of Wales prior to the law's enactment shall be deemed authoritative." If there is no evidence that Congress was actually aware of what the junior Senator from Vermont (or the Duke of Wales) said, then we cannot treat Congress as incorporating by reference his expressed views. Rather, this looks like delegation either to a subset of Congress or wholly outside Congress, plain and simple. The timing doesn't appear to matter.

Accordingly, I take you to be saying that the timing interacts with the actual legislative process. That brings me to the second argument: The idea is that the whole of Congress is keenly aware of what the committees and sponsors say and intend, and so when a statute uses unclear language, we can safely assume that such language incorporates by reference the statements found in the legislative history. This argument strikes me as persuasive if the factual assumptions underlying it are correct, but I think they're pretty plainly false. As you note in the book, most members of Congress are not aware of much of the language in most statutes they enact, much less of the glosses given to it by the committee process.

That brings me to the third argument in the passage quoted above: Congress has the power, in virtue of Article I, Sec. 5 ("Each House may determine the Rules of its Proceedings"), to delegate actual lawmaking power to its committees, so long as it follows up by enacting legislation. For this argument to work, one must either think that cases like Bowsher and Metrop. Washington are wrongly decided or think that the absence of a formal delegation to committees makes a big difference.

I hasten to add that I don't think that reliance on legislative history to fill statutory gaps violates the non-delegation doctrine for two reasons. First, the non-delegation doctrine is quite toothless. The authority granted by looking to legislative history is much more minor than in cases like Bowsher and Metrop. Washington (which, technically, are not non-delegation cases so much as Art I, Section 7 formalism cases). Second, as you write elsewhere in the book, looking to legislative history where the statutory meaning is otherwise unclear constrains courts. It would be better if Congress could be clearer (it can't always be), but as between judges making stuff up and pretending to find their preferences in the text versus looking to what will probably be a pretty good indication of legislative intent, the latter makes more sense.

* * *

I'm looking forward to a terrific session.


  1. "Of course there are standard questions one asks of a judge in this sort of setting . . ."

    First, thank you for this. I'm an avid Supreme Court watcher, and I've been disappointed time and again by this kind of thing -- one of the Justices gives a public discussion, the host asks a series of bland, uninspired questions with minimal follow-up, and all that comes out of it is a bunch of the same old anecdotes we've heard a dozen times before. I don't understand why intelligent, insightful academics squander opportunities like this, and it's a breath of fresh air when somebody takes the effort to probe a bit deeper. Compare, e.g., John Manning's interview with Justice Kagan last year, with any of a dozen other Kagan public appearances.

    Second, these are excellent questions. I appreciated Judge Katzmann's book, but I was left with a lot of the same types of questions (though less well articulated). I would like to suggest another line of questioning that is broadly related to your point #1 (i.e. questioning whether we should expect agencies and courts to adopt the same methodologies of statutory interpretation).

    Here's a hypothetical:Imagine a Democratic president succeeds in convincing a sharply divided Congress to pass a new environmental statute. Portions of the statute are to be administered by the EPA, and the agency has been given explicit authority to enact regulations elaborating the standards. Other portions of the statute are enforced only through private court actions, and the EPA has no role in interpreting them.

    Because many Republican constituencies were fiercely opposed to the bill, it passed only after a series of amendments that sharply limited its original scope in various ways. Before and immediately after its passage various key Democrats publicly express their disappointment that the bill is so much weaker than they had intended, but state that it was the best they could do given the politics. At the same time, key Republicans emphasize how their amendments minimized or eliminated various burdens the statute would have imposed on private businesses and individuals.

    In the next year's election in a (Democratic/Republican) sweep, the (Democrats/Republicans) gain the presidency and commanding majorities in both houses of Congress. Following the election, the EPA needs to interpret the statute in the process of writing new regulations and initiating enforcement actions. The federal courts are also tasked with interpreting different parts of the statute in civil actions filed under its private enforcement provisions.

    Should we expect the EPA and the courts to employ the same tools and methodologies in interpreting their respective portions of the statute?

  2. I appreciate the first comment.

    It sounds like an interesting discussion and good luck. This sort of thing seems particularly important given in recent years there is a 'purpose and effect' emphasis in various cases, including when judges do what is sometimes called using "rational basis plus." So, what the legislative "intended" and what the text means has some bite, judges don't simply give the legislature near carte blanche & stretch to have it mean something that can be deemed constructional.

    And, this is true in various cases, even conservative judges in various cases more suspicious about legislation, not just giving it the benefit of the doubt in a range of cases. So, trying to know what it "really" means is important than it might be.

  3. constructional = constitutional

    I take the question to the final question in the comment is sort of a soft "no" since agencies have more discretion though there should be reasonable overlap. The details are what Prof. Dorf, the author etc. work out.

  4. Thanks for these comments. Depending on how it goes, I might follow up with a later post.

  5. Possibly better analogy re legislative history: pretty much no one thinks that the drafting history of judicial opinions has any bearing on what they mean as precedent, however interesting that history may be for purposes of scholarship, and even though Justices and judges may rely on internal memos by an authoring judge describing what an opinion says or defending the draft in deciding whether to join that opinion, and even though authoring judges' changes to the opinion can be traced back to communications from other judges that - if we were only allowed to cite them in court- could shed light on what those changes were intended to mean.

  6. Judicial drafting history is certainly an interesting analogy, but it's complicated by the strong norms of confidentiality and secrecy of judicial deliberations. It's true that "pretty much no one thinks that the drafting history of judicial opinions has any bearing on what they mean as precedent," but how much of that is just due to the fact that these materials are normally completely inaccessible?

    Imagine an alternate world where the issuance of every opinion was accompanied by the publication of its full "judicial history" - earlier drafts, notes to clerks, inter-chambers memos, conference notes, etc. I suspect that in that world, quite a lot of people would argue that we ought to look to this judicial history to understand what the opinion means.

  7. Suppose that a law governing the treatment of animals is passed. An obscure provision states that persons who destroy bats are subject to imprisonment for one year. As it happens, the provision was added by a legislator who is a former executive of the Louisville Slugger company. Legislative history suggests that all legislators intended the provision to cover baseball bats. If I am an ordinary citizen, should I be held by a court to have violated this provision if I destroyed a baseball bat?

  8. Anonymous12:48 AM

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  9. Its good to read this post about questions for Judge Katzmann. It is useful post, I loved and enjoyed reading this one here. I will be sharing it with my UK students to whom I teach at and see what they have to say on this.