Scalia's Textualism

Justice Scalia's adherence to textualism requires that he not resort to extra-textual sources when interpreting a statute. Chiefly, he refuses to look at legislative history. That explains why--although he joined today's majority opinion in Octane Fitness--he expressly did not sign onto footnotes 1-3, which cite to legislative history and historical sources. (Thanks to T.N. and/or the Volokh Conspiracy for this point). 

But apparently Justice Scalia's jurisprudential views don't bar him from looking at all extra-textual sources. Here is a paragraph from his dissent in EPA v. Eme Homer City Generation, L.P.:

The statute’s history demonstrates that “significantly” is not code for “feel free to consider compliance costs.” The previous version of the Good Neighbor Provision required each State to prohibit emissions that would “prevent at­tainment or maintenance by any other State of any [NAAQS].” 91 Stat. 693 (emphasis added). It is evident that the current reformulation (targeting “any air pollutant in amounts which will . . . contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any [NAAQS]”) was meant simply to eliminate any implication that the polluting State had to be a but-for rather than merely a contributing cause of the downwind nonattainment or maintenance problem—not to allow cost concerns to creep in through the back door. 

Slip. op., 5 (Scalia, J., dissenting) (my emphasis).

So Scalia will look at a “statute’s history” (that is, the evolution of a single statute through its many amendments over time). I’m not sure, however, why this would be any more legitimate than looking at legislative history. Textualists shun legislative history because, among other reasons, a committee report doesn’t speak for the entire Congress that later passed the bill. Likewise, a Senator’s floor statements likely aren’t representative of what many other senators thought about a bill or the problem the bill was meant to address. In the view of textualists, only when a majority of the individual members of Congress coalesce to pass into law the particular language of a bill do we have a clear indication of what Congress intended.

Justice Scalia might argue that statutory history is made of laws that Congress actually agreed upon; so his basic theory of why the text is primary might support looking at statutory history: The proof of legislative intent is what the legislature actually said, i.e., the plain text. True, but that still doesn’t matter because when we interpret a statute, we ask what that particular Congress meant; statutory history, by definition, looks at what previous Congresses meant to say.  

The best support for statutory history is the theory that when Congress amends a statute by removing old text and adding new text, it did so intentionally. Meaning, it thought the old text was bad or didn’t work. The new text is the stuff the new Congress thought should be there.

Yet that’s as speculative as looking at the legislative history. If Justice Scalia were willing to couple statutory history with legislative history--which might explain exactly why the new language was substituted for the old--the statutory history could be useful. But then it would really just be “legislative history.”

And I say that statutory history is extra-textual because the text is no longer on the books. It is therefore unlike a typical context-based argument, which looks elsewhere in the U.S. Code for clues about a statute's meaning. (Ex. If you want to know what Congress means when it used the words "tangible objects" in Provision A, you could look to Congress's use of "tangible objects" in Provision B and read those provisions in pari materia). Finally, as Scalia himself pointed out in Reading Law, a prior Congress has no authority to bind the present Congress.

Perhaps someone has an idea for reconciling Justice Scalia’s textualism with his actual practice in Eme Homer City Generation.