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No. 94-1175

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BANK ONE CHICAGO, N. A., PETITIONER v. MIDWEST BANK & TRUST COMPANY

on writ of certiorari to the united states court of appeals for the seventh circuit

[January 17, 1996]

Justice Scalia , concurring in part and concurring in Justice Stevens acknowledges that this is so, but asserts that the intent of a few committee members is nonetheless dispositive because legislators are "busy people," and "most members [of Congress] are content to endorse the views of the responsible committees." Ante, at 1. I do not know the factual basis for that assurance. Many congressional committees tend not to be representative of the full house, but are disproportionately populated by Members whose constituents have a particular stake in the subject matter--agriculture, merchant marine and fisheries, science and technology, etc. I think it quite unlikely that the House of Representatives would be "content to endorse the views" that its Agriculture Committee would come up with if that committee knew (as it knows in drafting Committee Reports) that those views need not be moderated to survive a floor vote. And even more unlikely that the Senate would be "content to endorse the views" of the House Agriculture Committee. But assuming Justice Stevens is right about this desire to leave details to the committees, the very first provision of the Constitution forbids it. Article I, Section 1 provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives." It has always been assumed that these powers are nondelegable--or, as John Locke put it, that legislative power consists of the power "to make laws, . . . not to make legislators." J. Locke, Second Treatise of Government 87 (R. Cox ed. 1982). No one would think that the House of Representatives could operate in such fashion that only the broad outlines of bills would be adopted by vote of the full House, leaving minor details to be written, adopted, and voted upon, only by the cognizant committees. Thus, if legislation consists of forming an "intent" rather than adopting a text (a proposition with which I do not agree), Congress cannot leave the formation of that intent to a small band of its number, but must, as the Constitution says, form an intent of the Congress. There is no escaping the point: Legislative history that does not represent the intent of the whole Congress is nonprobative; and legislative history that does represent the intent of the whole Congress is fanciful.

Our opinions using legislative history are often curiously casual, sometimes even careless, in their analysis of what "intent" the legislative history shows. See Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 617-620 (1991) (Scalia, J., concurring). Perhaps that is because legislative history is in any event a make weight; the Court really makes up its mind on the basis of other factors. Or perhaps it is simply hard to maintain a rigorously analytical attitude, when the point of departure for the inquiry is the fairyland in which legislative history reflects what was in "the Congress's mind."

In any case, it seems to me that if legislative history is capable of injecting into a statute an "intent" that its text alone does not express, the drafting history alluded to in today's opinion should have sufficed to win this case for respondent. It shows that interbank liability was not merely omitted from subsection (a), entitled "Civil liability." It was removed from that subsection, simultaneously with the addition of subsection (f), 12 U.S.C. § 4010(f), which gave the Federal Reserve Board power to "impose on or allocate among depository institutions the risks of loss and liability in connection with any aspect of the payment system" (language that is at least as compatible with adjudication as with rulemaking). Now if the only function of this new subsection (f) had been to give the Board rulemaking power, there would have been no logical reason to eliminate interbank disputes from the "Civil liability" subsection, whose basic prescription (banks are civilly liable for violations of the statute or of rules issued under the statute ^[n.1] ) applies no less in the interbank than in the bank customer context. Nor can the removal of interbank disputes from subsection (a) be explained on the ground that Congress had decided to apply different damages limits to those disputes. The former subsection (a), in both House and Senate versions, already provided varying damages limits for individual suits and class actions, see S. 790, 100th Cong., 1st Sess., §609(a) (1987); H. R. Rep. No. 100-52, pp. 10-11 (1987), and it would have been logical to set forth the newly desired interbank variation there as well, leaving to the new subsection (f) only the conferral of rulemaking authority. Or, if it were thought essential to "consolidate" all the details of interbank disputes in subsection (f), it would still not have been necessary to specifically exclude interbank disputes from the general "civil liability" pronouncement of subsection (a). The prologue of that subsection, "[e]xcept as otherwise provided in this section," would have made it clear that interbank civil liability was limited as set forth in subsection (f). The most plausible explanation for specifically excluding interbank disputes from the "Civil liability" subsection when subsection (f) was added--and for avoiding any reference to "civil liability" in subsection (f) itself--is an intent to commit those disputes to a totally different regime, i.e., to Board adjudication rather than the normal civil liability regime of the law courts. ^[n.2]

Today's opinion does not consider this argument, but nonetheless refutes it (in my view) conclusively. After recounting the drafting history, the Court states that "nothing in §4010(f)'s text suggests that Congress meant the Federal Reserve Board to function as both regulator and adjudicator in interbank controversies." Ante, at 9 (emphasis added). Quite so. The text's the thing. We should therefore ignore drafting history without discussing it, instead of after discussing it.

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Notes

1 The Senate version of subsection (a) did not refer to violations of rules, see S. 790, 100th Cong., 1st Sess., §609(a) (1987), but it was the House version of subsection (a), see H. R. Rep. No. 100-52, p. 10 (1987), which did specifically mention rules, that was retained.

2 I have explained why the "consolidation" explanation developed by Justice Stevens, ante, at 2, does not ring true. Even if it did, however, it would not be accurate to say that the legislative history thus provides "the answer to an otherwise puzzling aspect of the statutory text," ibid. What Justice Stevens calls "the answer" (viz., the wish to consolidate all the interbank provisions in one section) is no more evident from the legislative history than it is from the face of the statute itself. Nothing in the legislative history says "we will consolidate interbank matters in a new subsection (f)"; Justice Stevens simply surmises, from the fact that the final text contains such consolidation, that consolidation was the reason for excluding interbank disputes from subsection (a). What investigation of legislative history has produced, in other words, is not an answer (that, if there is one, is in the text), but rather the puzzlement to which an answer is necessary: why were interbank disputes eliminated from subsection (a) when subsection (f) was adopted? Being innocent of legislative history, I would not have known of that curious excision if the Court's opinion had not told me. Thus, legislative history has produced what it usually produces: more questions rather than more answers.