The Value of Legislative Drafting Guides

Today the Court decided Brown v. United States. The case turned on how to interpret the Armed Career Criminal Act (ACCA). The Court split 6-3, with Justice Alito writing the majority opinion. Justice Jackson dissented, and was joined by Justices Sotamayor and, in part, Justice Gorsuch. I don’t have much to say about the substance of the opinion. One point of disagreement, however, stuck out.

Justice Alito’s majority opinion relied on a legislative drafting guide:

Use of the present tense, as opposed to the past, was likely a stylistic rather than a substantive choice. Around the time of ACCA’s enactment, legislative drafters were instructed, “[w]henever possible,” to “use the present tense (rather than the past or future).” House Office of the Legislative Counsel, Style Manual; Drafting Suggestions for the Trained Drafter §102(c), p. 2 (1989); see also D. Hirsch, Drafting FederalLaw §5.6, p. 45 (2d ed. 1989) (“Various commentators on drafting have tried, over the years, to persuade drafters touse the present tense . . . “). So, at least in the instant context, we cannot place too much weight on the use of the present tense as opposed to the past.

Justice Jackson’s dissent challenges this citation:

The majority attributes ACCA’s use of the present tense to a mere”stylistic” choice by Congress, relying primarily on a contemporaneous legislative drafting manual as support for that conclusion. Ante, at 16. But the wholly speculative suggestion that ACCA’s drafters actually relied on the cited manual’s tense-related directives conveniently comes out of nowhere. Moreover, to the extent the majority now believes that verb tense is irrelevant when a court undertakes to interpret the text of a statute, it has taken a strange and unwarranted departure from this Court’s ordinary interpretive practices. Before today, we have consistently used all aspects of a statute’s text to ascertain its meaning, including the verbs that Congress chooses. See, e.g., Barton v. Barr, 590 U. S. 222, 236 (2020); Carr v. United States, 560 U. S. 438, 448 (2010); United States v. Wilson, 503 U. S. 329, 333 (1992); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49, 57 (1987). An objection to this approach has surfaced only once before, in dissent. See Carr, 560 U. S., at 462–464 (opinion of ALITO, J.) (relying on legislative drafting manuals to suggest that the tense of the verbs in a statute was not relevant to the provision’s interpretation).

I question Justice Alito’s citation at this moment. One of the primary justifications to keep Chevron is that Congress has relied on this background principle when drafting legislation. Lisa Schultz Bressman and Abbe Gluck have demonstrated that drafters overwhelmingly rely on Chevron. I can see this citation being turned around against the Relentless majority. (You’re welcome Justice Kagan.) Seems like an unforced error by Justice Alito. Or may be it is just another false flag.

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