1940s-1980s peaked after the new deal – 1990s today declined without disappearing – – What might explain the rise of LH? Congressional recordkeeping [??] Congressional preference for drafting [??] Judicial appointments Judicial preference for constraint Judicial idea of collective intent (think about how people interpret personal letters or email) The weight afforded LH varied by type (this hierarchy survives to the extent LH is still used) Committee reports = most weight Sponsor statements = nearly as weighty Other Member statements = little weight Hearing testimony = little weight Amendment history = variable [??] Ratification at T2 = some weight Acquiescence at T2 = less weight Post-New Deal use: Justified as a constraint on judicial discretion that reflects the intent of Congress and respects congressional delegation Train (1976)(The Acts, 2 Agencies)(8-0) Radioactive Materials Case)(2 Q: Are within the meaning of the FWPCA (Clean nuclear materials “pollutants” Water Act)? If so, the EPA can regulate their discharge into waterways despite the fact that the Atomic Energy Act and the AEC already regulate the discharge of certain nuclear materials. The EPA excluded said radioactive materials in its regulations. AEA The Atomic Energy Act – Licenses covering 3 types of radioactive material from nuclear power plants, standards it with AEC administering and adopting or to protect “may deem necessary desirable… health…” From nuclear power plant FWPCA The Clean Water Act – Permits for water discharge of to include “pollutants,” defined U.S.C. §1362(6) (with exceptions) with “radioactive materials,” 33 EPA or a State administering and adopting regulations. Into water Held: The EPA properly excluded those radioactive materials covered by the AEA. Consistent with both statutes. Rule: Reliance on plain meaning can be insufficient to determine the actual legislative intent of Congress, which must be dispositive. Use of LH despite unambiguous language. Intentionalism Without reliance on LH inevitably overlap Those radioactive materials are covered by the ordinary and specialized meanings of “radioactive materials”
1940s-1980s – peaked after the new deal 1990s – today – declined without disappearing What might explain the rise of LH? Congressional recordkeeping [??] Congressional preference for drafting [??] Judicial appointments Judicial preference for constraint Judicial idea of collective intent (think about how people interpret personal letters or email) The weight afforded LH varied by type (this hierarchy survives to the extent LH is still used) Committee reports = most weight Sponsor statements = nearly as weighty Other Member statements = little weight Hearing testimony = little weight Amendment history = variable [??] Ratification at T2 = some weight Acquiescence at T2 = less weight Post-New Deal use: Justified as a constraint on judicial discretion that reflects the intent of Congress and respects congressional delegation Train (1976)(The Radioactive Materials Case)(2 Acts, 2 Agencies)(8-0) Q: Are nuclear materials “pollutants” within the meaning of the FWPCA (Clean Water Act)? If so, the EPA can regulate their discharge into waterways despite the fact that the Atomic Energy Act and the AEC already regulate the discharge of certain nuclear materials. The EPA excluded said radioactive materials in its regulations. AEA – The Atomic Energy Act Licenses covering 3 types of radioactive material from nuclear power plants, with AEC administering and adopting standards it “may deem necessary or desirable… to protect health…” From nuclear power plant FWPCA – The Clean Water Act Permits for water discharge of “pollutants,” defined to include “radioactive materials,” 33 U.S.C. §1362(6) (with exceptions) with EPA or a State administering and adopting regulations. Into water Held: The EPA properly excluded those radioactive materials covered by the AEA. Consistent with both statutes. Rule: Reliance on plain meaning can be insufficient to determine the actual legislative intent of Congress, which must be dispositive. Use of LH despite unambiguous language. Intentionalism Without reliance on LH inevitably overlap Those radioactive materials are covered by the ordinary and specialized meanings of “radioactive materials”