The Value of Legislative Drafting Guides

In Brown v. United States, Justice Alito relied on them, but Justice Jackson did not.

Today the Court decided Brown v. United States. The case turned on how to interpret the Armed Career Criminal Act (ACCA). The Court split 6-3, with Justice Alito writing the majority opinion. Justice Jackson dissented, and was joined by Justices Sotamayor and, in part, Justice Gorsuch. I don't have much to say about the substance of the opinion. One point of disagreement, however, stuck out.

Justice Alito's majority opinion relied on a legislative drafting guide:

Use of the present tense, as opposed to the past, was likely a stylistic rather than a substantive choice. Around the time of ACCA's enactment, legislative drafters were instructed, "[w]henever possible," to "use the present tense (rather than the past or future)." House Office of the Legislative Counsel, Style Manual; Drafting Suggestions for the Trained Drafter §102(c), p. 2 (1989); see also D. Hirsch, Drafting FederalLaw §5.6, p. 45 (2d ed. 1989) ("Various commentators on drafting have tried, over the years, to persuade drafters touse the present tense . . . "). So, at least in the instant context, we cannot place too much weight on the use of the present tense as opposed to the past.

Justice Jackson's dissent challenges this citation:

The majority attributes ACCA's use of the present tense to a mere"stylistic" choice by Congress, relying primarily on a contemporaneous legislative drafting manual as support for that conclusion. Ante, at 16. But the wholly speculative suggestion that ACCA's drafters actually relied on the cited manual's tense-related directives conveniently comes out of nowhere. Moreover, to the extent the majority now believes that verb tense is irrelevant when a court undertakes to interpret the text of a statute, it has taken a strange and unwarranted departure from this Court's ordinary interpretive practices. Before today, we have consistently used all aspects of a statute's text to ascertain its meaning, including the verbs that Congress chooses. See, e.g., Barton v. Barr, 590 U. S. 222, 236 (2020); Carr v. United States, 560 U. S. 438, 448 (2010); United States v. Wilson, 503 U. S. 329, 333 (1992); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 57 (1987). An objection to this approach has surfaced only once before, in dissent. See Carr, 560 U. S., at 462–464 (opinion of ALITO, J.) (relying on legislative drafting manuals to suggest that the tense of the verbs in a statute was not relevant to the provision's interpretation).

I question Justice Alito's citation at this moment. One of the primary justifications to keep Chevron is that Congress has relied on this background principle when drafting legislation. Lisa Schultz Bressman and Abbe Gluck have demonstrated that drafters overwhelmingly rely on Chevron. I can see this citation being turned around against the Relentless majority. (You're welcome Justice Kagan.) Seems like an unforced error by Justice Alito. Or may be it is just another false flag.

Comments

[bernard11]

I don't have much to say about the substance of the opinion.

Proof that even Josh is capable of embarrassment, even if the court's conservatives are not.

[John F. Carr]

I doubt members of Congress voting on the language thought about which meaning was intended.

If you get convicted of breaking a dumb law and the law is repealed after your conviction is final, you are still guilty, right? So I'm with the conservatives on this one. The courts have to pretend THC is evil because Congress said so.

[Mark Regan]

The U.S. relied on legislative drafting manuals in its NFIB severability briefing,
US Severability Brief
11-393_respondents.authcheckdam
at 42-43.

[Rev. Arthur L. Kirkland]

"Seems like an unforced error by Justice Alito."

He has a lot on his mind these days.

Which un-American flag to signal his disaffectedness today?

How to conceal, as much as possible in new circumstances, his conservative billionaire-funded opulence?

How to manage the marital issues associated with blaming everything on his wife?

How to prevent the modern Americans he despises from using -- perhaps soon -- that "egregiously wrong" standard to advance reason, inclusiveness, science, modernity, and progress at the expense of his cherished superstition, white grievance, backwardness, dogma, unearned privilege, and insularity?

[loki13]

The obvious answer is obvious, of course. Alito goes for the result, without worrying about consistency.

As usual, the rule works. Kagan and Roberts are on opposite side, so I will assume (without looking) that the majority opinion is incorrect, as Alito is in the majority.

Briefly reviewing it, I think that as a matter of statutory interpretation, that dissent is correct, but I also think it was a poorly drafted statute if the government wants it to apply differently- simply put, the cross reference should occur at the time of the federal firearms offense. In addition, the Alito approach that cross-references are not controlled by the temporal language in the statute, but rather by ... um ... whatever courts later decide it to be ... risks chaos.

(As an aside, Gorsuch was on board for all the statutory analysis, but did not join regarding the statutory objectives, which tracks.)

[Randal]

Or may be it is just another false flag.

Was this a seriously clumsy attempt to reference a current event, or are you suggesting someone planted the citation into Alito’s opinion without him noticing, or do you actually not know what a false flag is?

Also "maybe" is one word, "professor."