May 26, 2011

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Legislative History Clashes in Chamber of Commerce v. Whiting

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In Chamber of Commerce v. Whiting, the two dissenting opinions by Justices Breyer and Sotomayor heavily rely on legislative history to understand Congress’ intent. Chief Justice Roberts lays down a bit of a smackdown on the pair with this stinging footnote  benchslap:

JUSTICE BREYER poses several rhetorical questions challenging our reading of IRCA and then goes on to propose two seemingly alternative views of the phrase “licensing and similar laws”—that it was meant torefer to “employment-related licensing systems,” post, at 11 (dissentingopinion) (emphasis deleted), or, even more narrowly, to “the licensing offirms in the business of recruiting or referring workers for employment,such as . . . state agricultural labor contractor licensing schemes,” post, at 13. If we are asking questions, a more telling one may be why, if Congress had intended such limited exceptions to its prohibition on state sanctions, it did not simply say so, instead of excepting “licensingand similar laws” generally? JUSTICE SOTOMAYOR takes a different tack. Invoking arguments thatresemble those found in our implied preemption cases, she concludes that the Arizona law “falls outside” the savings clause and is expresslypreempted because it allows “state courts to determine whether a person has employed an unauthorized alien.” Post, at 2 (dissenting opinion). While JUSTICE BREYER would add language to the statute narrowly limiting the phrase “licensing and similar laws” to specific types of licenses, JUSTICE SOTOMAYOR creates an entirely new statutoryrequirement: She would allow States to impose sanctions through“licensing and similar laws” only after a federal adjudication. Such a requirement is found nowhere in the text, and JUSTICE SOTOMAYOR does not even attempt to link it to a specific textual provision. It should not be surprising that the two dissents have sharply different views on how to read the statute. That is the sort of thing that can happen when statutory analysis is so untethered from the text.

More broadly, the Court rejects the Chamber of Commerce’s reading of the legislative history.

The Chamber argues that its textual and structuralarguments are bolstered by IRCA’s legislative history. We have already concluded that Arizona’s law falls within theplain text of IRCA’s savings clause. And, as we have said before, Congress’s “authoritative statement is the statu-tory text, not the legislative history.” Exxon Mobil Corp.v. Allapattah Services, Inc., 545 U. S. 546, 568 (2005); see also Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137, 149–150, n. 4 (2002). Whatever the usefulness of relying on legislative history materials in general, the arguments against doing so are particularly compelling here. Beyond verbatim recitation of the statutory text, all of the legislative history documents related to IRCA save one fail to discuss the savings clause at all. The Senate Judiciary Committee Report on the Senate version of the law does not comment on it. See S. Rep. No. 99–132 (1985). Only one of the four House Reports on the law touches on the licensing exception, see H. R. Rep. No. 99–682, pt. 1, p. 58 (1986), and we have previously dismissed that very report as “a rather slender reed” from “oneHouse of a politically divided Congress.” Hoffman, supra, at 149–150, n. 4. And the Conference Committee Reportdoes not discuss the scope of IRCA’s preemption provisionin any way. See H. Conf. Rep. No. 99–1000 (1986).6

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