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USING FEDERAL LEGISLATIVE HISTORIES (The Worth of the Various Types of Legislative History Documents) |
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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): |
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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.) |
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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: |
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(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). |
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Judge Mikva and Eric Lane also caution readers
as to the use of Presidential statements: |
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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. |
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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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