Gerard Magliocca notes that he has “severe reservations” about relying on the Gruber tape because it is not in the record, and we don’t know if he actually mispoke in 2012,or is lying now. “The way we figure these things out is through a fact-finder.  The way not to do this is through appellate briefs.”

Fair enough. We don’t know if he mispoke then, or is lying now. But the exact same rule applies to ALL of the briefs filed by members of Congress, staffers, and other people involved with the crafting of the bill. When a brief is filed in 2014 telling us what they thought in 2009, we have every reason to question the veracity of their statement. These post-hoc briefs, the most egregious type of post-enactment legislative history because they are filed to persuade in a case, should be entitled to the least deference.

What should get more deference, are post-enactment statements made outside the threat of litigation–which is exactly what Gruber’s 2012 statement was. So to the extent that we can look at post-enactment statements by members of Congress, then Gruber’s 2012 statements are certainly fair game.

One of my first papers considered Federal Rule of Evidence 801(d)(1)(B) in the context of assessing post-enactment statements made under the Lemon Test. The rule considers the reliability of evidence based on a motivation to fabricate the truth. It provides:

“A statement is not hearsay if . . . [t]he declarant testifies at the trial or hearing and is subject to cross- examination concerning the statement, and the statement is . . . consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive . . . .”

This rule determines the admissibility of statements that opposing counsel argues are untrue due to an alleged motivation to fabricate the truth. Under the rule, testimony is not hearsay—and is, therefore, admissible—if it is consistent with previous statements made prior to the existence of a motivation to fabricate the truth. Here, the motivation to fabricate the truth would be the Halbig/King litigation.

As I explained in the context of Lemon:

Rule 801(d)(1)(B) can provide useful insights when relying on historical sources charged with being unrepresentative of the original meaning or a form of “pitched political debates”192 subject to bias. This rule could allow a judge to answer the question of whether histor- ical sources were written consistently with the original meaning of a statute or whether they were written based on a motivation to alter the record for various subjective purposes. This rule also allows judges to flesh out conflicting versions of what happened, which is a common problem when relying on historical evidentiary accounts. If there is a charge that a legislative history is a fabrication of reality, then statements made before the motivation to fabricate existed that confirm the later statement render the questioned legislative history more reliable, and thus admissible.

But the flipside to that is when the post-enactment rationalizations are not consistent with contemporary statements, the latter statements would not be admissible. Presumably, under the rules of evidence, the change was motivated by a fabrication.

As even the 4th Circuit acknowledged, the legislative history in the record on this point is entirely unhelpful. In the end, that leaves us just with the statute, and contemporary statements by Gruber.

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