Due Process and Legislative History

[James Maule]

>>> SLevinson at MAIL.LAW.UTEXAS.EDU 02/23/01 11:10AM >>> asks

Given Todd Bank's able delineation of the difference between searches for
"original intent" and for "original understanding," what if legislative
committees started writing their reports *after* the passage of
legislation, offering a helpful guide to how members of Congress understand
the language that is now in the statute books?  Or would we say that a New
York Times (or Wall Street Journal) editorial trumped such a guide?

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That's what happens (sort of) in the tax law. The so-called "Blue Book" (years ago it was printed with a blue cover) is put together by the staff of the Joint Committee on Taxation AFTER the legislation is enacted. Generally, they take the portion of each report (House, Senate, Conference, and sometimes there are multiple House or Senate reports) dealing with each provision and re-arrange them in a chronological order. That's all very helpful, of course.

But what happens is that as the legislation goes through Conference to the White House for signature and back to the Hill for enrollment, question arise on account of ambiguity, situations not dealt with, etc. The staff adds sentences, footnotes, etc giving "answers" to these questions.

Where the IRS has authority to issue regulations, it usually follows these "suggestions" on resolving the questions. The big issue, however, is when the IRS fails to do so, or is silent, or in some other way one or the other of the parties to tax litigation cites the Blue Book provision (which appears nowhere else) as authority. The Tax Court generally declines to consider it as authority, but there's no question it has influence.

The other thing that happens is that members of Congress write to the Treasury asking for explanations of new tax legislation (perhaps to give to constituents), even though the legislation is legislation for which the member voted....



Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)