What's Wrong with Legislative Intent? Why Drakes Bay Oyster Company's Petition for a Rehearing will Not be Granted

Committee Reports and Floor Statements are Not Law
Drakes Bay Oyster Company Needs to Cease Operations

Over the last 40+ years Congress had ample opportunity to write into law that commercial aquaculture activities within Drakes Estero were compatible with the Wilderness Act and should be allowed to continue in perpetuity. It did not. When given the opportunity to force the Department of the Interior to renew the lease, it did not. Politics is messy and the creation of law leaves a wake of refuse which anyone can pick and choose from to support an "intention." In order to keep law from becoming garbage, Judges look to the words of the law. Not selective crumpled pieces of paper left on the floors of the House and Senate after passage.

Supreme Court Justice Antonin Scalia:

"You will see recited in opinions all the way back that the object of interpretation is to determine the intent of the drafter.  I don't believe that.  We're not governed by the drafter's intent. We're governed by laws" August 22, 2012 

Judge Alex Kozinski, Should Reading Legislative History Be an Impeachable Offense?

1. The two Houses and the President agree on the text of statutes, not on committee reports or floor statements. To give substantive effect to this flotsam and jetsam of the legislative process is to short-circuit the constitutional scheme for making law.
2. Collective intent is an oxymoron. Congress is not a thinking entity; it is a group of individuals, each of whom may or may not have an "intent" as to any particular provision of the statute. But to look for congressional intent is to engage in anthropomorphism--to search for something that cannot be found because it does not exist.
3. Even if there were such a thing as congressional intent, and even if it could be divined, it wouldn't matter. What matters is what Congress does, not what it intends to do.
4. Even if the other obstacles could be overcome, reliance on legislative history actually makes statutes more difficult to interpret by casting doubt on otherwise clear language. This makes it much more difficult for people to conform their conduct to the law, as no one can tell what the law is until a court has weighed the language, the legislative history, the policy considerations, and other relevant information. This increases litigation costs and undermines the rule of law.
5. Legislative history is often contradictory, giving courts a chance to pick and choose those bits which support the result the judges want to reach. In Judge Leventhal's immortal phrase, consulting legislative history is like "looking over a crowd of people and picking out your friends." n24 This shifts power from the Congress and the President--who, after all, are charged with writing the laws--to unelected judges. The more sources a court can consult in deciding how to interpret a statute, the more likely the interpretation will reflect the policy judgments of the judges and not that of the political branches.
6. Allowing legislative history to do work that should be done by statutory language leads to political unaccountability. Members of Congress who reach an impasse can agree on murky language, then salt the legislative record with clues and hints hoping to shift the process of interpretation their way. Elected officials can thus achieve substantive results without having to take the political responsibility that would come from passing clear-cut statutory language.
7. Shifting important policy judgments to the courts brings the judiciary into disrepute and undermines the notion that judges apply the law objectively. When the public comes to understand that judges are simply unelected, life-tenured bureaucrats dressed in black, making policy decisions just like other government officials, the moral authority of the courts will be seriously undermined and popular obeisance to the courts' constitutional judgments will be jeopardized.