There is a section of dicta in the recent Supreme Court decision on health care reform that might portend new ground, although not in Commerce Clause jurisprudence. Rather, in his dissent, Justice Antonin Scalia did a curious thing for those interested in statutory interpretation: He cited an op-ed in The New York Times that quoted Senate Majority Leader Harry Reid. Justice Scalia used this quotation as evidence of meaning on the issue of whether Congress intended to draft a severable mandate, or more specifically, why the Court should not interpret the fact that Congress was silent as anything more than compromise. Of course, Justice Scalia often hammers the sentiment that Congress is a messy business, full of backroom deals and compromises, but his choice of source here is illuminating. Though he repeatedly criticizes the use of traditional legislative history to interpret statutory meaning, Justice Scalia rather casually referenced a newspaper quotation of a senator regarding provisions in the Patient Protection and Affordable Care Act. This bit of dicta poses an interesting question: Should the Court look to the public statements of elected officials (outside of the Congressional Record) as evidence of meaning for purposes of interpreting ambiguous (or, in this case, silent) statutory text? Is there a fundamental difference between contemporaneous statements by senators made to media outlets and those statements made on the legislature floor? How should these two types of statements made by elected representatives relate to each other and to the interpretation process?
November 2015, Vol. 67, No. 6
Liesa L. Richter, Posnerian Hearsay: Slaying the Discretion Dragon
Sapna Kumar, Regulating Digital Trade
W. Keith Robinson, Economic Theory, Divided Infringement, and Enforcing Interactive Patents
Sandra F. Sperino, Retaliation and the Reasonable Person