Putting Legislative History to a Vote: A Response to Professor Siegel

This paper defends the position that judicial reliance on legislative history violates the constitutional norm against congressional self-delegation. Contrary to that position, Professor Jonathon Siegel argues that, because a statute's legislative history already exists at the time of the statute's passage, a court’s treating legislative history as authoritative is the same as giving effect to a statute that validly incorporates pre-existing materials by reference. To illustrate this point, Professor Siegel introduces, as a thought experiment, a hypothetical Interpretation of Statutes Act. The Act provides that the legislative history of every future statute will be automatically incorporated into the statute by reference, without express adoption. Siegel argues that, because legislatures are permitted to incorporate, by reference, pre-enactment legislative history into statutes, such an Act would be constitutional. Disagreeing with that conclusion, this paper argues that the hypothetical Interpretation of Statutes Act would only formalize an unconstitutional delegation of power. The essay explains that the hypothetical statutory arrangement allows members of Congress to subvert the aims of bicameralism and presentment. In particular, legislators would be able to vote for a statute without taking full responsibility for legislative history that resulted from factional logrolling. The paper concludes that the resulting separation of legislator responsibility from legislative result (viz. the statutory text) enables Congress to enact binding statutory details through a process other than the one prescribed by the Constitution.