181 F.3d 38, affirmed.
[ Souter ]
[ Scalia ]
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Scalia, J., concurring in judgment


No. 99—474



[June 19, 2000]

Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.

It is perfectly obvious on the face of this statute that Congress, with the concurrence of the President, intended to “provid[e] the President with flexibility in implementing its Burma sanctions policy.” Ante, at 10, n. 9. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that “[s]tatements by the sponsors of the federal Act” show that they shared this intent, ibid., and that a statement in a letter from a State Department officer shows that flexibility had “the explicit support of the Executive,” ante, at 11, n. 9. This excursus is especially pointless since the immediately succeeding footnote must rely upon the statute itself (devoid of any support in statements by “sponsors” or the “Executive”) to refute the quite telling argument that the statements were addressed only to flexibility in administering the sanctions of the federal Act, and said nothing at all about state sanctions. See ante, at 12, n. 10.

It is perfectly obvious on the face of the statute that Congress expected the President to use his discretionary authority over sanctions to “move the Burmese regime in the democratic direction,” ante, at 13. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that “the sponsors of the federal Act” shared this expectation, ante, at 13, n. 12.

It is perfectly obvious on the face of the statute that Congress’s Burma policy was a ”calibrated” one, which “limit[ed] economic pressure against the Burmese Government to a specific range,” ante, at 13. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that bills imposing greater sanctions were introduced but not adopted, ante, at 13—14, n. 13, and to the (even less surprising) proposition that the sponsors of the legislation made clear that its “limits were deliberate,” ante at 14, n. 13. And I would feel this way even if I shared the Court’s naï ;ve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional “reject[ion]” of what the bill contained, ibid. Curiously, the Court later recognizes, in rejecting the argument that Congress’s failure to enact express preemption implies approval of the state Act, that “the silence of Congress may be ambiguous.” Ante, at 24. Would that the Court had come to this conclusion before it relied (several times) upon the implications of Congress’s failure to enact legislation, see ante, at 12, n. 11, 13—14, n. 13, 22, n. 23.

It is perfectly obvious on the face of the statute that Congress intended the President to develop a “multilateral strategy” in cooperation with other countries. In fact, the statute says that in so many words, see §570(c), 111 Stat. 3009—166. I therefore see no point in devoting two footnotes to the interesting (albeit unsurprising) proposition that three Senators also favored a multilateral approach, ante, at 17, n. 15, 18, n. 17.

It is perfectly obvious from the record, as the Court discusses, ante, at 18—21, that the inflexibility produced by the Massachusetts statute has in fact caused difficulties with our allies and has in fact impeded a “multilateral strategy.” And as the Court later says in another context, “the existence of conflict cognizable under the Supremacy Clause does not depend on express congressional recognition that federal and state law may conflict,” ante, at 24. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) fact that the “congressional sponsors” of the Act and “the Executive” actually predicted that inflexibility would have the effect of causing difficulties with our allies and impeding a “multilateral strategy,” ante, at 22, n. 23.

Of course even if all of the Court’s invocations of legislative history were not utterly irrelevant, I would still object to them, since neither the statements of individual Members of Congress (ordinarily addressed to a virtually empty floor),*1 nor Executive statements and letters addressed to congressional committees, nor the nonenactment of other proposed legislation, is a reliable indication of what a majority of both Houses of Congress intended when they voted for the statute before us. The only reliable indication of that intent–the only thing we know for sure can be attributed to all of them–is the words of the bill that they voted to make law. In a way, using unreliable legislative history to confirm what the statute plainly says anyway (or what the record plainly shows) is less objectionable since, after all, it has absolutely no effect upon the outcome. But in a way, this utter lack of necessity makes it even worse–calling to mind St. Augustine’s enormous remorse at stealing pears when he was not even hungry, and just for the devil of it (“not seeking aught through the shame, but the shame itself !”). The Confessions, Book 2, ¶9, in 18 Great Books of the Western World 10—11 (1952) (E. Pusey trans. 1952).

In any case, the portion of the Court’s opinion that I consider irrelevant is quite extensive, comprising, in total, about one-tenth of the opinion’s size and (since it is in footnote type) even more of the opinion’s content. I consider that to be not just wasteful (it was not preordained, after all, that this was to be a 25-page essay) but harmful, since it tells future litigants that, even when a statute is clear on its face, and its effects clear upon the record, statements from the legislative history may help (and presumably harm) the case. If so, they must be researched and discussed by counsel–which makes appellate litigation considerably more time consuming, and hence considerably more expensive, than it need be. This to my mind outweighs the arguable good that may come of such persistent irrelevancy, at least when it is indulged in the margins: that it may encourage readers to ignore our footnotes.

For this reason, I join only the judgment of the Court.


1. * Debate on the bill that became the present Act seems, in this respect, not to have departed from the ordinary. Cf. 142 Cong. Rec. 19263 (1996)(statement of Sen. McConnell) (noting, in debate regarding which amendment to take up next: “I do not see anyone on the Democratic side in the Chamber”).