Inspired by the thread in MPSIMS about car warranty phone calls. Let’s say Congress decided to make such calls illegal, and wrote legislation to that effect. I’m sure legislation like that would have the potential to be interpreted by the courts in ways that could lead to unforeseen and possibly undesirable outcomes. What I’m wondering is this. Would it help if Congress were to start the law with a statement like “the intent of this legislation is to make nuisance phone calls illegal to make for those on the do not call registry.” Would there be any benefit to adding some sort of brief statement at the beginning of a piece of legislation as to the intent of the legislators, so as to avoid court fights in the future? Let’s consider any legislation, not just a hypothetical bill about scam phone calls.
Yes, legislatures do that sometimes. How effective they are can depend on the exact method of statutory construction being used to construe the statute, and what the issue is.
Sometimes, if the words of the statute clearly mean something other than what the statement of intent says, courts will say the words of the statute control. For example, most courts would probably not insert a missing “not” that would dramatically change the meaning of a statute.
Imagine: a statute says it’s illegal to robocall people on the “do not call” registry. The statute also says, “It is a defense if the company calling has a prior relationship with the person being called.” But the statement of intent makes clear it was supposed to say, “It is not a defense…”. No court would enforce the law against someone who fell under the stated (as written) defense.
But courts choosing between different plausible constructions often use statements of legislative intent to help determine which is the correct construction.
Legislative acts of the EU usually have a so-called recital at the beginning that explains the objectives of the act and provides some context.
Exactly: EU legislation, that is, directives (EU laws that have to be transposed into national law by the national parliaments to enter into force) and regulations (which enter into force immediately in the whole of the EU at a given date) start with the so called whereas clauses that say, in effect, why the legislator considers it appropiate to regulate something and to what end. If the articles of the law should be ambiguous, the recitals give the context for the proper interpretation. The origin of this custom goes back to the Napoleonic Code, which is very relevant in the EU’s law set up. It plays a similar role as case law plays in Anglosaxon jurisprudence, mutatis mutandis.
Here, just as an example, the General Data Protection Regulation (GDPR). It starts “having regard” to this and that, acting according to the legislative rules applicable, and then comes a list of 173 whereas clauses that explain why this regulation is deemed necessary and what it is for. Then comes Chapter I (General Provisions), Chapter II (Principles), Chapter III (Rights of the Data Subject, with sevral sub-sections) etc. and so forth.
When I compare legislation of the Australian parliaments, to legislation of Congress, I see that Congressional legislation is already a ‘statement of intent’. It is written as a direction to the executive branch.
When and if it comes to court, American courts are comparing the regulations enacted by the executive branch, to the statement of intent legislated by Congress.
I’m making a comparative statement. I’m not trying to make an absolute statement about the American legislative system.
U.S. legislators do sometimes include statements of intent. For example, here is a link to the “Necessity for regulation” section of the Securities Exchange Act of 1934, 15 U.S.C. Sec. 78b.
Another, more recent example is the Lilly Ledbetter Fair Pay Act, one of Obama’s first pieces of signed legislation, where Congress said:
Congress finds the following:
(1) The Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades. The Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.
(2) The limitation imposed by the Court on the filing of discriminatory compensation claims ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended.
(3) With regard to any charge of discrimination under any law, nothing in this Act is intended to preclude or limit an aggrieved person’s right to introduce evidence of an unlawful employment practice that has occurred outside the time for filing a charge of discrimination.
(4) Nothing in this Act is intended to change current law treatment of when pension distributions are considered paid.
It can help somewhat but surprisingly infrequently. It gives a little color to interpreting the law (as in the Lilly Leadbetter Act). As in the Exchange Act example, it can state what constitutional authority Congress used in adopting the law but, if forced to defend the law, the government can assert that any authority Congress has to adopt the legislation is sufficient even if it wasn’t mentioned. For example, I don’t think the Patient Protection and Affordable Care Act contained any particular purpose or authority language but it was defended in part and upheld by the Supreme Court as an exercise of Congress’s power to levy general taxes. Occasionally courts interpreting a statute will look to the purpose statement in the legislation but the statements often don’t really address the narrow question at issue. More often, courts look to the legislative history if the bill including Congressional hearings, earlier amendments to the bill, and committee reports.
I am not a lawyer, but from news articles over the years that I have read, statutory intent as explained in the congressional testimony and statements by congresspeople seem to be more useful the higher up the appeals chain you go. The Supreme Court seems to be quite willing to cite congressional testimony when interpreting a law. District courts not so much. At least that is what I have gathered from reading articles about decisions over the years
ISTM that is an effect of how you get to the higher appeals level when there is an issue that there are conflicting plausible interpretations of what did the legislator mean.
Meanwhile…
In Puerto Rico (which is within the US system, and our State Supremes can get reviewed by the SCOTUS on the same terms as any state high court) where 123 years after the US takeover we still retain a lot of Spanish Civil Law styles and traditions, it is common for bills (and therefore laws) to have an “Exposición de Motivos” placed ahead of the enacting clause, before the actual articles and sections start. This results in that when the statute is bound as the Laws of the Year volume, the Statement of Motives is there, but when it is later compliled and indexed into Annotated Code, it is not.
But often newer legislators and even many practicing lawyers have to be reminded that to be passed a bill does not need to have a Statement of Motives – the justification for the legislation can be self evident, or it can be described in the committee report and/or argued in the floor debate, the records of all of which are public and can be brought before the court for research in determining intent.
Of course, even then proper legislation drafting technique is “write clearly what you mean this law to DO, and how it shall be enforced, in the statutory text”. If the statutory text is a half double-spaced page long and you add ten pages in single space of explanations, you’re failing.
In the Czech Republic, every bill that comes before the Czech parliament is supposed to have a statement of intent. These will typically be very detailed, containing such things as explanatory notes, forecasts of impact of the change in legislation, or forecasted costs of the change.
Personally, I find determining “legislative intent” to be a fool’s errand. Courts and regulatory agencies love it – they spend countless hours scrutinizing whether Senator Beauregard’s belch during debate over banana import duties represents an expression of intent. Because being able to hang their hat on some semi-plausible “statement of intent” makes it easy for them.
But whose intent counts? Different legislators may have voted for the bill for different reasons and have different interpretations of its provisions. Is it the bill author’s intent that governs? The relevant committee chairman? Should you need intent from a majority of those who voted for the bill?
Also, intent questions come up in specific applications of the legislation that no legislators probably ever considered – e.g. how does subclause 7(c) apply in circumstance X. If having a position now is politically advantageous, you’ll often find that legislators suddenly remember that they had very clear intent in their minds regarding this application when they voted for the bill. Should these post facto statements of intent have any bearing?
Finally, the point in question may have been left deliberately ambiguous because it involved making a politically painful choice that no one wanted to be blamed for. How do you determine legislative intent when legislators’ intent was to cover their own backsides? From their perspective, better to let the courts make a determination and then they can applaud or boo depending on which way the winds are blowing.
If the legislature had specific intent on the issue, they were free to write it into the bill. And if they disagree with how a court or agency interprets what they wrote, they’re free to amend the statute.
Just came across a Chinese example:
The General Office of the Central Committee of the Communist Party of China (CPC) The General Office of the State Council issued the Opinions on Further Reducing the Operational Burden of Students and the Burden of Out-of-School Training in the Compulsory Education Stage --Time Politics - People’s Network
That title was auto-translated by Google, as was the rest of the document.
In China, the statement of intent is legislation.
not directly comparable
I have always wondered about this because of cases where a very minor issue in wording of a statute affects how it is interpreted. In this case a statement of intent may have allowed for a different outcome:
But the statute in your example did have a statement of intent, which the court relied on to give the truck drivers overtime. The Maine statute “Declaration of policy” 26 M.R.S.A. sec. 661 says,
It is the declared public policy of the State of Maine that workers employed in any occupation should receive wages sufficient to provide adequate maintenance and to protect their health, and to be fairly commensurate with the value of the services rendered.
This is an example of where the statement of intent probably didn’t result in the interpretation that the legislature originally wanted because it didn’t actually focus on the particular provision the court had to interpret.