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USING FEDERAL LEGISLATIVE HISTORIES
(The Worth of the Various Types of Legislative History Documents)




          Courts evaluate the meaning of statutes based on time honored principles known as 'canons of statutory construction.'  (E.g. A statute should be construed so that none of its terms are redundant.)  If however, upon application of these canons the statute is still unclear, courts often rely on the history of a particular statute in order to determine the intent of the legislature.  The following is a discussion of the persuasiveness of the various legislative history documents as to ascertaining the intent of Congress.

What Are the Most Valuable Pieces of a Legislative History?

          Abner J. Mikva, former Chief Judge of the United States Court of Appeals for the District of Columbia and five term congressperson from the state of Illinois, and Eric Lane, Hofstra law professor, rank the following as the most important documents for determining legislative intent (in order of importance)(See Abner J. Mikva & Eric Lane, An Introduction to Statutory Interpretation and the Legislative Process, Aspen Law and Business (1997), p. 36.(KF 425.M55 1997):



1. committee reports (including conference reports);

2. Markup transcripts (These are transcripts of the period of time after which a committee has decided to act on a bill. Often the bill is read line-by-line, amendments are offered and considered, and the legislators offer explanations for the various provisions of the bill. Abner at 92.);

3. Committee debate and hearing transcripts; and

4. Transcripts of 'hot' floor debates. (By 'hot' the authors mean actual debates designed to influence members while a bill is still under real consideration. The authors wish to exclude statements made with the sole purpose of biasing the legislative history of a bill.)


As to statements made on the floor of either the House or the Senate, Judge Mikva and Eric Lane concur with Professor Stephen Ross's assertion that the following are the most reliable indications of legislative intent:




(1) statements by the sponsor of the legislation or the particular provision at issue when it appears that members who might otherwise desire to amend the bill have relied on those statements; and (2) colloquies between the 'major players' concerning a legislative provision when it appears that the majority of members are prepared to follow any consensus reached by these individuals.  Mikva at 37 quoting Stephen F. Ross, Where Have You Gone, Karl Llewellyn? Should Congress Turn Its Lonely Eyes to You?, 45 Vand. L. Rev. 561, 576 (1992).



Judge Mikva and Eric Lane also caution readers as to the use of Presidential statements:




The signing message is not a part of the enactment process.  While the President has the power to veto a bill and the legislature has the power to override the veto, the legislature has no power to veto or override the executive's signing message, which can contain any statement the executive chooses to include.  Mikva at 40.



Executive statements should not be used when they are merely an "executive gloss about which the legislature can do nothing." Id.  However, when a president makes "reference to some communication or negotiation between the executive and the legislative leadership in which agreement had been reached over the meaning declared in the signing statement," this would have some probative value of legislative intent. Id.







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