John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673 (1997).
Abstract: In the past decade, self-described textualist judges have questioned the legitimacy of using legislative history as an "authoritative" source of legislative intent. Textualists contend that multi-member legislative bodies possess no collective intent, and that committee reports and sponsors' statements do not, in any case, accurately reflect legislative intent. Furthermore, textualists note, such legislative history does not emerge from the constitutionally mandated process of bicameralism and presentment. This Article critically analyzes the textualist judges' objections to legislative history and rerationalizes textualism as a special application of the nondelegation doctrine. Professor Manning observes that the textualist critique of legislative history is in apparent tension with other methods of interpretation employed by textualist judges. Such judges routinely rely on a variety of extrinsic sources (agency rules, treatises, judicial opinions, etc.) to interpret ambiguous statutes, even though these sources do not reflect genuine congressional intent and are not subject to bicameralism and presentment. The Article seeks to resolve this apparent anomaly by arguing that interpretive reliance on legislative history creates an opportunity for legislative self-delegation, contrary to the clear assumptions of the constitutional structure. Given existing norms of interpretation, the creation of legislative history effectively permits agents of Congress to resolve ambiguities of Congress's own making. This conflation of lawmaking and law declaration functions makes it far too attractive for Congress to bypass bicameralism and presentment, assigning the specification of legislative detail to committees and sponsors. Accordingly, this Article concludes that courts should not impute a committee's or sponsor's declaration of intent to Congress as a whole.