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August 14, 2006

A Typo in a Bill Raises Constitutional Issues

A law.com story by Tresa Baldas explains that when the Senate approved the Deficit Reduction Act, it contained a provision concerning the funding of reimbursements of certain Medicare products that lasted 13 months. However, in the House, due to a clerk's error "13" became "36." That Act, as you can imagine, had a lot of provisions affecting all sorts of things dear to the heart of many interest groups.

Thus, the typo is being used to challenge enactment of the bill. The Government has argued that the courts lack authority to examine the truth, because the leader of each House attested that the identical bill had passed both Houses -- a Constitutional requirement, of course. Opponents argue that the bill is unconstitutional.

The facts seem to support the bill's unconstitutionality. From what I can tell from the materials on line, there's no dispute that the bill that passed the Senate is not the bill that passed the House. The only question is: what to do. I'm no expert in this area, but based upon my understanding of the cases in this area, this seems like a clear case where a litigant with standing to challenge a provision of the bill ought to be able to raise lack of enactment. This isn't some failure to follow an internal procedural rule: it's a constitutional failure. The bill wasn't enacted by both houses.

So far, a couple of district courts have wrassled with the issue, and, I suspect, so too will appellate and perhaps even the Supreme Court.

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funny, no one seems to care that legislative history materials do not pass either house.

Posted by: andy | Aug 14, 2006 2:20:56 PM

I think you're comparing apples and oranges, but maybe I'm missing the point. No one says that legislative history is the law, but that it can be relied upon to say what the enacted text means. Here, if the reports I've read are correct, there was no text approved by both houses. But maybe I'm missing the point?

Posted by: David Hricik | Aug 15, 2006 2:47:18 PM

it was a tongue in cheek comment, sort of.

"but that it can be relied upon to say what the enacted text means."

well, i think the problem is that 1) legislative history often goes *beyond* what the text fairly means, and courts/attorneys will deem such history authoritative and 2) parties spend too much time arguing that what congress "meant" was not embodied in the statutory text, but in the legislative history.

see, e.g., pages 1-3 of breyer's dissent in Arlington high (arguing that "costs" could include "attorney's fees," based on legislative history).

it is true that the supreme court and the circuits have largely favored textualist approaches in recent years. but with respect to the other 90% of the law (i.e. that created by administrative agencies), legislative history, regretably, still looms large. i also would not be surprised to learn that the district courts have been sloppy in interpreting statutes.

i do think that such an approaches presume that legislative history is the "law"; anytime one treats legislative history as an *authoritative* expression of congressional intent, he is, for better or worse, treating it as the law. On par with a statute? of course not. but, if (as breyer states) legislative history represents "what Congress told us it intended," then it *is* the law.

though theories regarding the use of leg history would differ, i am aware of at least some commentators who believe that using such history furthers the role of "legislative supremacy," implying that errant statements in committee reports are somehow the law.

this may not be true of the majority of the supreme court any longer, but i do think that there are a substantial number of decisionmakers out there who deem legislative history material the *law*.

Posted by: andy | Aug 15, 2006 11:22:04 PM

I can't say that I know you're wrong, but having just spent 2 years of my life reading cases to write a text book on statutory interpretation, the courts as a general rule seemed to know that leg history wasn't "the law" but that in the difficult cases -- where text was unclear (and, in some courts, only where the text was ambiguous) -- legislative history helped to figure out intent.

From what I could tell, intentionalist courts used legislative history to discern how the legislature intended text to apply when it wasn't exactly clear. To me, turning to legislative history -- rather than having a court pretend the text is "clear" based on unnanounced principles of knowing what the "plain meaning" is -- is more respectful of the legislature.

Your comment about agencies relying heavily on legislative history is an interesting one, and one I don't know much about. Are agencies still doing that? Is there a functional reason why they should, but courts should not? That sounds like an interesting thing to ponder.

Posted by: David Hricik | Aug 17, 2006 2:10:56 AM

the adherence to legislative history by administrative agencies is even embodied in a regulation issued pursuant to notice and comment. see. 26 CFR 1.6662-4(d)(3)(iii) (reproduced, in relevant part, below). even items of legislative history produced *after* a statute's enactment are deemed indicative of Congressional intent according to this regulation.

and i agree with you that every opinion out there will say that legislative is subservient to a statute, and simply fills in gaps or indicates meaning of the statute. this does not do much to assuage me, however-- as my administrative law prof used to bemoan (former Yale professor and EPA general counsel Donald Elliot), any time a court interprets a statute it assures us that it is simply fulfilling "congressional intent." even the holy trinity court assured the reader that it was fulfilling not its own wishes, but that of the legislature ("the act, although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute.").

that a court will use legislative history under the guise of enforcing statutory terms does not do much to convince me that the legislative history cited does not go beyond the text of the statute-- a court will never, ever admit as much. to repeat, the court always assures us that it is enforcing the terms of the statute, and that the leg history is the aid. whether the leg history cited actually does go beyond the text of the statute, i think, requires analysis beyond examining whether the court states that it is enforcing the statute.

in any event, i agree with you that the circuit courts and the supreme court have taken a principled approach to the use of legislative history. my concern is with the other 90% of lawmakers. though some commentators have argued that textualism has won its battles, (see Molot, Rise and Fall of Textualism), i think this conclusion is simply indicative of the academy's extraordinary obsession with supreme court jurisprudence. if one expands his scope of analysis to include the administrative agencies, i have no doubt he will conclude that the use of legislative history is alive and well.


"only the following are authority for purposes of determining whether there is substantial authority for the tax treatment of an item: Applicable provisions of the Internal Revenue Code and other statutory provisions; proposed, temporary and final regulations construing such statues; revenue rulings and revenue procedures; tax treaties and regulations thereunder, and Treasury Department and other official explanations of such treaties; court cases; congressional intent as reflected in committee reports, joint explanatory statements of managers included in conference committee reports, and floor statements made prior to enactment by one of a bill's managers; General Explanations of tax legislation prepared by the Joint Committee on Taxation (the Blue Book); private letter rulings and technical advice memoranda issued after October 31, 1976; actions on decisions and general counsel memoranda issued after March 12, 1981 (as well as general counsel memoranda published in pre-1955 volumes of the Cumulative Bulletin);

Posted by: andy | Aug 17, 2006 2:44:17 AM

We'll probably revisit this, I bet, several times here. I still do think that it's incorrect to say that a court that relies on "plain meaning" is not also "going beyond the text" just as an intentionalist does when she goes to leg history.

To be continued.

Posted by: David Hricik | Aug 17, 2006 4:40:28 PM

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