Topic: Legislative History
Senator: Grassley
Date: SEPTEMBER 14, 2005
Contents
GRASSLEY: The Supreme Court has repeatedly stated that the legislative history of a particular bill is critical to interpretation of the statute.
Of course, Justice Scalia is of the opinion that most expressions of legislative history, like committee reports or statements by the senators on the floor or the House, are not entitled a great weight because they are unreliable indicators of legislative intent.
Presumably, Judge Scalia believes that if the members don't actually write a report or don't actually vote on a report, then there's no need to defer to this expression of congressional intent.
Now, obviously, I have great regard for Justice Scalia, his intellect, legal reasoning. But, of course, as I told you in our office, I don't really agree with his position.
So I'd like to ask you five questions. They're relevantly short so I'll ask them all at once.
What is your opinion? How important is legislative history to you? How have you utilized it? And will it be any different from your use on the circuit court versus what you might do on the Supreme Court?
And did you refer to any committee reports of congressional debate in any of your 39 briefs before the Supreme Court?
And to what extent do you -- and don't start out with this last one -- to what extent do you share Justice Scalia's view on unreliability of legislative history although that's important.
And I can repeat those if you forget what I have asked.
ROBERTS: Sure. If I leave one out, you can remind me at the end.
But, obviously, when you're dealing with interpreting a statute, the most important part is the text.
ROBERTS: You begin with the text, and as the Supreme Court has said in many cases, perhaps most cases, that's also where you end -- the answer is clear.
I have, though, as a judge, relied on legislative history to help clarify ambiguity in the text. The Supreme Court stated once, and I think it's a very important principle, you look to legislative history to clarify ambiguity. You don't look to legislative history to create ambiguity.
In other words, if the text is clear, that is what you follow and that's binding. And you don't look beyond it to say, well, if you look here, though, maybe this clear word should be interpreted a different way.
On the other hand, we confront situations where the text is not clear and the legislative history can be helpful in resolving that ambiguity. It requires a certain sensitivity to what you're dealing with. All legislative history is not created equal.
There's a difference between the weight that you give a conference report and the weight you give a statement of one legislator on the floor. You have to, I think, have some degree of sensitivity in understanding exactly what you're looking at; appreciate where those comments were made in the legislative process; be careful to make sure that they're dealing with the same language that was eventually adopted.
You have to, for example, be very skeptical about statements by opponents of the bill. It's quite a common thing saying, well, this bill would do this and this and this, and so we shouldn't pass it. That's not always the best guide as to what the sponsors really intended in the language.
So it does require a certain sensitivity to what you're dealing with, but I have quoted and looked to legislative history in the past to help determine the meaning of ambiguous terms, and I would expect to follow that same approach on the Supreme Court.
I don't think there's a difference there in terms of what things you think it is appropriate to look to, help you do your job, which is to figure out what Congress intended.
GRASSLEY: And you didn't address Judge Scalia but let me put it another way so I don't put you in a bad position. You would see, at least in some instances, where it needs to be used -- reliability in legislative history.
ROBERTS: In some instances, I think if you look at it carefully, you can make an assessment that this is a reliable guide.
And one area I didn't touch on: In my arguments, I've certainly relied on legislative history in presenting arguments because, of course, in the Supreme Court you need five votes and not just the one, so you tend to cast your net as widely as possible.
And at argument sometimes, Justice Scalia would not be as receptive to an argument based on legislative history as some of the others but, again, the name of the game is counting to five when you're arguing up there, so I've certainly made arguments based on legislative history.
GRASSLEY: In regard to how you view and use legislative history, I'd like to discuss your opinion in Totten, Bombardier Corporation case, interpreting the False Claims Act.
The issue, on appeal, was whether interpreting Bombardier had met the presentment requirements of the False Claims Act. To violate the statute according to Section 37.29.A(1), a company must have presented its false claim to an officer or employee of the federal government.
Importantly, Section 37.29.C explicitly provides that the term "claim" includes demands for payments submitted to government contractors whether or not they are resubmitted to the federal government.
In your opinion, you wrote that those facts of that case did not consist of a false claim under the False Claims Act because there can only be a false claim if it's literally presented to somebody that's a federal government employee, I assume.
It seems to me that to reach this result, you inserted a resubmission requirement into the law in place where it doesn't in fact appear, Section 37.29.A(1), and in fact gave short shrift to the legislative history which spelled out what Congress intended when it amended the act in '86.
GRASSLEY: The legislative history of the act in the Senate committee report -- and I didn't refer to my authorship of the legislation, but anyway, in our Senate committee report explaining that liability on the False Claims Act attaches to a submission of, and I quote, "a false claim to the recipient of a grant from the United States or to a state under a program financed in part by the United States," end of quote.
The legislative history also states that Congress sought to ensure that, quote, "A false claim was actionable, although the claim or false statements were made to a party other than the government if the payment thereon would ultimately result in a loss to the United States," end quote.
So, my question is whether, on reflection, that is a fair way to deal with the express wishes of Congress and whether it is possible that you misunderstood the statue when you decided the Totten case. Why did you reject legislative history if you referred to it? And maybe you didn't refer to it. But why did you reject legislative history regarding the resubmission requirement in the False Claims Act when you wrote the opinion in Totten?
ROBERTS: Well, Senator, the answer to your question is, it's certainly possible that the majority in that case didn't get it right. And the dissent, that was a very strong dissent, did get it right. I think the majority got it right. There we focused on particular language.
The issue in the case involved, as you know, a subcontractor claim. You have the United States giving the money to, in this case it was Amtrak and then Amtrak using that money to hire a subcontractor -- I think it was Bombardier -- to do a particular part of the job.
Everybody agreed that, under the precedents that are applied, Amtrak is not the government. It can't be considered part of the government. And the statue, as you noted, required -- it was triggered by the presentment of a false claim to an officer or employee of the United States.
And the majority's reasoning was that the false claim was one made by Bombardier to Amtrak and the claim was submitted to Amtrak.
ROBERTS: And since Amtrak was not the government, what Judge Rogers and I concluded was that that wasn't presentment of a false claim to an officer or employee of the United States.
There was an extensive discussion between the majority and the dissent. The view that you've articulated was certainly presented in a compelling way by Judge Garland, my colleague on the court of appeals, and we spent a great deal of time on the case. And I think it's reflected in the opinions. And that view was laid out.
Judge Rogers and I thought that the statutory language that said the claim had to be presented to an officer or employee presented too high a hurdle for us to get over in looking at the legislative history.
But I'm happy to concede that it was among the more difficult cases I've had over the past two years. Any time Judge Garland disagrees, you know you're in a difficult area. And the function of his dissent, to make us focus on what we were deciding and to make sure that we felt we were doing the right thing, I think was well- served.
But Judge Garland disagreed, and so it's obviously, to me, a case on which reasonable judges can disagree. And I just have to rest on the analysis in the majority opinion.
GRASSLEY: Let me tell you something you might not be aware of, and that is that the Bush administration has filed an amicus brief in the 11th Circuit, arguing that you had misread the False Claims Act in the Totten case.
And in Atkins v. McInteer, the administration has argued that there's no presentment requirement in Section 37.30.A(2) of the False Claims Act.
In fact, quote, "The Totten majority misconstrued the language and purpose of the False Claims Act in concluding that the act does not encompass (inaudible) claims, records, statements, submitted to recipients of federal funds, absent resubmission to a United States officer or an employee."
And I assume if I ask you if you have an opinion on that, you can't answer it.
ROBERTS: Well, not on that one. I do know the Bush administration filed an amicus brief in our case as well. I guess this would be one of those cases I would cite in response to the question of whether I'm capable of ruling against the administration. We did in that case.
Again, the arguments I think were well-presented on both sides. Judge Rogers and I gave it our best shot. And the opinion will stand or fall on its own.
GRASSLEY: Well, I hope, sitting in the marble palace, you'll remember that I have great pride in the success of the False Claims Act...
(LAUGHTER)
... $8 billion coming back to the Federal Treasury.
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