Textualism as a Nondelegation Doctrine

Abstract

Textualist judges have contended, with much practical impact, that courts should not treat committee reports or sponsors' statements as authoritative evidence of legislative intent. These judges base their resistance to that interpretive practice on two major premises: first, that a 535-member legislature has no "genuine" collective intent concerning the proper resolution of statutory ambiguity (and that, even if it did, there would be no reliable basis for equating the views of a committee or sponsor with the "intent" of Congress as a whole); second, that giving weight to legislative history offends the constitutionally mandated process of bicameralism and presentment.While supporting the rejection of committee reports and sponsors' statements as authoritative evidence of congressional intent, the article contends that these two premises, standing alone, are insufficiently persuasive. Textualist judges routinely rely on extrastatutory sources of meaning -- such as agency rules, terms of art, and canons of construction -- that do not reflect "genuine" legislative intent and have not undergone the process of legislative enactment. Textualism, therefore, must rest instead on a special constitutional injunction against legislative generation of unenacted texts that are nonetheless to be understood as authoritative. The existence of such an injunction is found to be reflected in the Supreme Court's modern separation of powers cases. The article concludes that textualism makes sense as an implementation of a core element of the separation of powers -- the separation of lawmaking from law-exposition. So understood, textualism powerfully promotes nondelegation principles by prohibiting agents of Congress from dictating the interpretation of vague and ambiguous texts of Congress's own making.The article suggests that the nondelegation rationale also supplies a limiting principle for textualism: the nondelegation rationale does not foreclose courts from using legislative history if its contents are persuasive on the merits, quite apart from their source. Just as a court can evaluate the substance of a brief or a law review on the merits, it can evaluate a committee report or sponsor's statement on the merits. And just as a court may not credit legislative history simply because of its source, it need not ignore the contents of the legislative history simply because of their source.