In the long line of legal fallacies, one that has come to the fore recently is legislative intent.  When a court is pressed to interpret a statute, and there is some ambiguity in its language or some doubt as to how it should be applied to a particular set of facts, the next step under the rules of statutory interpretation is to look to legislative intent.

In short, the theory is that courts will attempt to divine the legislature’s purpose in enacting the law, and conform its interpretation to address the purpose of the legislature in enacting it.  Well, the Boston Globe put an end to that nonsense when they put a question to House Majority Leader Steny Hoyer.

It’s not that legislators don’t read any bills.  They just don’t read every bill.  Hoyer admitted this when he committed the inexcusable political crime of publicly telling the truth.  Let that be a lesson.

A good buddy of mine who thought it would be a good idea to move from the trenches to the legislative easy chairs told me when he returned from his first year on the floor that it was pathetic.  “They don’t get it,” he explained. “They don’t know what due process is.”  Typical of a rookie, he read every bill.  What a n00b. 

He then discussed the laws he was being asked to vote on with his elders, more experienced legislators who could most assuredly explain how laws could be passed that were facially incomprehensible or ignored fundamental constitutional errors, like the absence of due process. They shook their head at him and chuckled as they walked away.  He would learn.

In the past, I’ve asserted that the notion that our statutory scheme, and even our constitutional amendments, reflected a singular purpose was misguided.  That a room full of people agreed to pass a law doesn’t mean that they all read it the same, harbored the same purpose in their heart, or even agreed on what it did or was meant to do.  Chances of that happening are negligible.  Yet lawyers and courts will pull out the bill jacket, or a speech given in the dark of night by a legislator looking for a quote in the local paper, to prove what Congress intended.  Like that proves anything.

Ramming legislation through Congress so quickly that neither lawmakers nor voters have time to read and digest it is a bipartisan crime; Republicans have been as guilty of it as Democrats. The 341-page Patriot Act, to mention just one notorious example, was introduced in the Republican-controlled House on Oct. 23, 2001, brought to a vote on Oct. 24, adopted by the Democratic-controlled Senate on Oct. 25, and signed into law by President George W. Bush on Oct. 26.

In order to maintain the appearance of a reasoned tripartite government, courts feel constrained to pretend that duly enacted laws reflect the deliberative process of the legislative body.  Having argued to courts that certain laws, and the USA Patriot Act in particular, reflect no legislative intent beyond enabling law enforcement to engage in tactics that were previously considered unconstitutional or too intrusive to be permitted, and having had judges give me the evil eye for bringing up such unpleasantries, there can be no doubt that our better judges know all too well that they are busy defending a fiction when they resort to legislative intent to reach their desired outcome.

It’s not that legislators don’t have particular areas that interest them, or at least where their brethren on the floor expect them to use their previously acquired expertise to tell the rest of the caucus to vote yea or nay.  Some legislators are “health care guys,” or “banking gals,” and they are expected to read as much of a health care or banking bill as they can before the cocktail party fund-raiser that evening.  But given the time demands on a legislator, coupled with the prolix yet boring nature of legislation, the expectation that they have read, no less digested and understood and considered and deliberated, the laws they are asked to vote on is absurd.

The true artform of the politician is to appear well-versed to the naked eye on the issues, sufficiently to meet and greet constituents and secure their devotion and available cash.  This comes as no surprise to anyone who has ever had the pleasure of being invited to a political function, where your hand will be firmly grasped by your representative, who will stare deeply into your eyes and assure you that he’s there for you, you personally, only you, doing the hard work needed.  His other hand, of course, has its palm open.

Don’t blame your legislators.  Consider the burden of running for office every two years, when fundraising starts the day after election for the next one around the corner.  Laws as they appear in our books may only include a few lines, but they are hundreds of pages of semi-comprehensible gobbledygook in his packet.  Even if he had the time to read them, they are so monstrously boring, convoluted and painful that it’s nearly impossible to get through them.

This does little to help us to figure out what to do about laws when they reach the end of the road.  We are left with poorly written, poorly conceived and difficult (if not impossible) to apply laws to abide, with judges left to clean up the legislative mess.  I’m not unsympathetic to the difficulty in taking a nonsensical law and trying to find some way to rationalize it to perform its facially intended purpose.  It would be far better for courts to stop trying to make sense of bad or incomprehensible laws and starting kicking them back to the legislatures.  For those who rail against “activist” judges, consider why they are forced to fill in the blanks.  If only judges stopped indulging in the urge to fill in those blanks to suit their own political views.

It’s time to put away the hoary chestnut of legislative intent.  If they don’t read the laws they pass, then let’s put a stop to the fiction that there is anything intentional about them.  There is no such thing as legislative intent, and it’s time to admit it.

H/T Eugene Volokh