Legislation
Class Notes
We
will have class Tuesday here at
White’s opinion in BankAmerica
White
noted that Mann and Webb/Shirley didn’t disagree about whether the new language
prohibited bank-insurance company interlocks.
What they did disagree upon
was whether the original House version would have prohibited such interlocks. The issue for White is: what does the statute
mean without the “other than banks” language?
It means that bank-insurance company interlocks are covered! Without that
language, you just can’t be a director of two or more banks engaged in
commerce.
With
that in mind, we were asked to think about what the implications would be for the
four approaches we’ve talked about.
Where would each of the justices come down in this case? What is true about commerce today that wouldn’t
have been true 50, 60, or 70 years ago with respect to banks? We have an evolving understanding of what
commerce is. Commerce has become a more
expansive concept, and things that in pre-1937 terms weren’t part of commerce
now are part of commerce.
President
Wilson signs this bill. He says in this
bill, “Thank goodness. I can sleep at
night now because I put an end to bank-insurance company interlocks. Signed, Woodrow Wilson.” Should we credit that statement as evidence
of what the statute means? What are the
president’s powers with regard to legislation?
The president can sign bills. The
president can veto bills. Anything
else? The president pushes an
agenda. The president can propose a
bill, lobby for a bill, lobby for a change, or other stuff. However, the act of the veto, introducing legislation
or having emissaries testify mean that Congress has the ability to sort of “talk
back”. A veto can be overridden. Bills can be modified or not. The problem of a signing statement is that it’s
a “last shot”. It’s a gloss on what the
president thinks he’s signing when Congress’s work is already finished. The Reagan Administration was hot on these
statements even though their counsel said that legislative history is a
terrible thing. Many people thought that
it was troubling that the president could spin legislation without the
possibility of more dialogue.
This
is about statements by sponsors or drafters of legislation. Sponsors of legislation tend to get
preference as the most knowledgeable members in regard to a bill. But colloquies can be manipulative. Here, environmentalists are seeking to block
construction of roads by Burlington Northern.
Here is another checkerboard grant!
Burlington Northern is the defendants here. Why is the 1980 statute important even though
it hadn’t been passed at the time of the district court decision? It’s not Burlington Northern that’s appealing. The case will either rise or fall on the 1980
statute, even though it was never litigated in the district court at all.
Does
§ 1323 apply to the whole country, or only
But
now we get to legislative history. This
section was added by the Senate Energy Committee. But how much do we credit a statement after
the bill has been sent to the president?
Did the member say anything during the course of the debate? The casebook authors are sheepish. Should the presence of a “Dear Colleague”
letter written and sent while the bill was about to be debated on the Senate
floor have any effect? What’s a “Dear
Colleague” letter? If someone is
proposing a bill, they will send a letter around saying why they think you
should or shouldn’t vote for it. Is that
the only reason why a Senator or Representative might send around a “Dear
Colleague” letter? How are these letters
handled when they come into a member’s office?
Do the Congressmen even read these things? Who else might be seeing these letters? Maybe the mailroom will see these
letters. There thousands of “Dear
Colleague” letters circulated during each legislative session. Most are preprinted and say something that
might be substantive, but needless to say that people don’t really pay
attention to them. They’re also not
specially recorded anywhere! Once they’re
written, they’re at the mercy of whoever files them. There is a serious access problem as to
whether courts or litigants can ever find them!
People
are making broad statements about what § 1323 is without knowing that things
are defined as applying to