{"id":4768,"date":"2026-06-07T21:18:08","date_gmt":"2026-06-08T01:18:08","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=4768"},"modified":"2026-06-07T23:09:05","modified_gmt":"2026-06-08T03:09:05","slug":"the-major-questions-doctrine-and-post-enactment-legislative-history","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2026\/06\/07\/the-major-questions-doctrine-and-post-enactment-legislative-history\/","title":{"rendered":"The Major Questions Doctrine and Post-Enactment Legislative History"},"content":{"rendered":"

Aaron Baum[*]<\/a><\/span><\/strong><\/p>\n

ABSTRACT<\/h4>\n

The major questions doctrine (\u201cMQD\u201d) has quietly resurrected an interpretive tool that the Court foreswore during the textualist revolution: post-enactment legislative history. Starting with one of the earliest (proto) major questions cases, <\/em>FDA v. Brown & Williamson, and continuing through modern MQD cases like <\/em>Biden v. Nebraska, the Court has relied on rejected bills, post-enactment statements by individual legislators, and congressional inaction to deny the executive branch claimed statutory authority. Justice Gorsuch defends the practice by claiming such evidence is relevant only to the antecedent inquiry of whether a question is \u201cmajor.\u201d Justice Barrett, meanwhile, defends it on textualist grounds as ordinary statutory \u201ccontext.\u201d But both defenses fail. Justice Gorsuch\u2019s is belied by the \u201cantecedent\u201d inquiry\u2019s dominant role in deciding the merits of major questions cases, and Justice Barrett\u2019s is vulnerable to the same critiques that textualists levied against earlier uses of post-enactment legislative history.<\/em>\u00a0<\/em><\/p>\n

This Note then asks whether the practice might at least serve the goal that some Justices have for the MQD\u2014reinvigorating Congress as a lawmaking institution\u2014by giving Congress a more flexible lawmaking tool. Post-enactment legislative history does not live up to that hope, at least as deployed in the MQD. First, where pre-textualist uses of post-enactment legislative history reflected judicial modesty in affirming the status quo (whether the existing judicial or executive construction of a statute), the MQD deploys the same evidence to displace it, reflecting judicial hubris rather than congressional empowerment. Second, the MQD\u2019s embrace of sub-bicameral signaling functions as a one-way ratchet, available only to strip the executive of authority, but never to make new law. Third, by treating rejected bills and offhand legislator remarks as evidence against executive power, the doctrine chills legislative activity. It discourages Presidents from first seeking congressional ratification before acting unilaterally, and it raises the cost of messaging legislation that serves useful informational and bargaining functions. The Court, this Note concludes, must decide whether it believes in bicameralism or not.<\/em><\/p>\n

I. INTRODUCTION<\/strong><\/h4>\n

In the midst of an intra-party fight about how to accomplish student debt relief, then-Speaker of the House Nancy Pelosi claimed that President Biden would need to work with Congress\u2014he could not go it alone.1<\/a><\/sup>See<\/em> infra <\/em>Parts \u200eIII.C.4, \u200eIV.B.1 for a full description of this case. <\/span> But Speaker Pelosi eventually supported the President after Congress failed to act and President Biden turned to his independent statutory authority, supported by a new opinion from the Office of Legal Counsel. The Speaker must have been surprised, then, when the Supreme Court cited her earlier remark in striking down President Biden\u2019s action under the major questions doctrine (\u201cMQD\u201d) in Biden v. Nebraska<\/em>. Legislators who witnessed the saga play out might now think twice before questioning the authority of a President of their own party.<\/p>\n

Legislative history usually ends when the President signs a bill into law. For purposivists, anything said up until that point should help a judge understand what Congress was thinking in enacting the law. Any legislative history past that point is, particularly in the wake of the textualist revolution at the Supreme Court, considered worthless or nearly worthless for understanding the earlier statute. But in some cases\u2014both historically and today in MQD cases\u2014courts have extended the timeline past the President\u2019s signature, reading congressional action short of formally amending prior legislation back onto the earlier legislation to help inform its meaning.<\/p>\n

The Court\u2019s embrace of such sub-bicameralism-and-presentment congressional signals\u2014including hearings, committee reports, statements by legislators, or legislation that dies in committee or in one of the houses2<\/a><\/sup>See <\/em>William N. Eskridge, Jr., The New Textualism<\/em>, 37 UCLA L. REV. 621, 635 (1990).<\/span>\u2014might at first blush empower Congress, fulfilling some jurists\u2019 goal for the MQD. By crediting low-cost signals, the MQD might help gridlocked Congress get back in the game of controlling delegations of legislative power to the executive and judiciary\u2014particularly in construing so-called \u201ccommon law statutes,\u201d where post-enactment evidence often appeared in 20th century cases. But such evidence comes with three limits that make it ill-suited to achieve the Court\u2019s goal of energizing congressional action. First, the MQD uses of post-enactment legislative history speak in the language of legislative supremacy while operating as judicial supremacy, in comparison to the judicial modesty of the 20th century cases: The former use post-enactment legislative history to enact a change in the status quo, while the latter rely on it only to affirm the status quo. Second, the \u201ctool\u201d is a one-way ratchet\u2014the modern Court has only endorsed its use in MQD cases, so post-enactment legislative history can only dis<\/em>empower the executive, in contrast to its historical role in \u201ccongressional acquiescence\u201d cases where it could empower the executive. Third, resorting to failed<\/em> legislative enactments to prove what the President may not<\/em> do could end up counterproductively chilling worthwhile congressional dialogue, as legislators learn that their good ideas may be used against them in a future case to prove why the executive cannot<\/em> exercise the power that legislators proposed. This could also, contra the hopes of the Justices, encourage Presidents to take more unilateral action rather than first go to Congress for authorization (fearing that congressional rejection will bar later unilateral action).<\/p>\n

This Note proceeds in three parts. Part \u200eII defines \u201cpost-enactment legislative history\u201d (also sometimes called \u201csubsequent legislative history\u201d3<\/a><\/sup>Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J., concurring).<\/span>) and differentiates it from other similar evidence of legislative intent. Part \u200eIII traces the history of post-enactment legislative history, from the height of purposivism in the second half of the 20th century, to the death of post-enactment legislative history during the textualist revolution, and finally to its surprising revival by textualist judges in the MQD. A close read of those modern cases belies Justice Gorsuch\u2019s argument that post-enactment evidence goes only to the preliminary determination of whether an action is \u201cmajor,\u201d rather than the merits of what a statute authorizes. Nor, this Note concludes, does Justice Barrett\u2019s defense\u2014that the executive\u2019s post-enactment failure to exercise a power is probative evidence that it does not exist\u2014hold water. And Part \u200eIV explains why the Court\u2019s narrow endorsement of post-enactment legislative history will disappoint jurists hoping that the Court\u2019s MQD jurisprudence will reinvigorate congressional action.<\/p>\n

II. DEFINING POST-ENACTMENT LEGISLATIVE HISTORY<\/h4>\n

A brief aside before defining this Note\u2019s terms: carefully parsing the legal meaning of facially similar yet ontologically distinct pieces of evidence is crucial for sound statutory interpretation, where legal reasoning often bucks a straightforward \u201cnecessary or sufficient\u201d logic. Instead, judges compare conflicting sources of legislative history, ascertaining the \u201cweigh[t]\u201d of each source and \u201cbalanc[ing]\u201d the evidence on one side against the other.4<\/a><\/sup>See, e.g.<\/em>, Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 595\u201396, 596 n.14 (2010).<\/span> As a result, good jurisprudence demands careful reasoning about which types of legislative history arguments are appropriate depending on how one thinks Congress may constitutionally change the law.<\/p>\n

Post-enactment legislative history for this Note\u2019s purposes means (1) congressional actions or statements (including silence or acquiescence) (2) short of bicameralism and presentment (3) made after the President has signed a bill into law (4) that a court uses to inform its understanding of that law. Relevant congressional actions include actions and statements by individual members of Congress, congressional committees, or even acts by an entire chamber or by both chambers short of bicameralism and presentment. This definition of post-enactment legislative history also includes congressional silence or acquiescence, which commentators often consider separate from other congressional acts subsequent to enactment.5<\/a><\/sup>Compare, e.g.<\/em>, 2A SHAMBIE SINGER & NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION \u00a7 48:20 (7th ed. 2024) (including \u201cPost-enactment history\u201d in the chapter on \u201cExtrinsic Aids\u2014Legislative History\u201d), with<\/em> 2B id.<\/em> \u00a7 49:9 (including \u201cLegislative inaction following contemporaneous and practical interpretation\u201d in the chapter on \u201cContemporaneous Construction\u201d).<\/span> But congressional acquiescence is useful to consider as a form of post-enactment legislative history for this Note\u2019s purposes, given that neither post-enactment silence nor post-enactment speech can speak to the enacting Congress\u2019s intent.<\/p>\n

Congressional acquiescence overlaps with another source of post-enactment evidence that is somewhat beyond this Note\u2019s scope: post-enactment executive practice. For instance, Skidmore<\/em> (as recently reaffirmed in Loper Bright<\/em>) provides that agency \u201cinterpretations issued contemporaneously with the statute at issue, and which have remained consistent over time, may be especially useful in determining the statute\u2019s meaning.\u201d6<\/a><\/sup>Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2262 (2024) (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).<\/span> Professor Daniel Deacon has explored (and rejected) various theoretical justifications for crediting such evidence,7<\/a><\/sup>Daniel T. Deacon, Statutory Liquidation<\/em>, 77 ADMIN. L. REV. 503, 551\u201372 (2025).<\/span> including, as relevant here, that such evidence might be probative of the enacting Congress\u2019s intent (a traditional bicameralist view) or a later Congress\u2019s acquiescence.8<\/a><\/sup>See id.<\/em> at 540\u201341.<\/span> This Note overlaps with Deacon\u2019s account in identifying the MQD\u2019s reliance on post-enactment practice as difficult to square with modern textualism.9<\/a><\/sup>See id.<\/em> at 503.<\/span> But while Deacon focuses on the power of the executive to liquidate statutory meaning, this Note focuses on the power of the legislature to liquidate meaning.<\/p>\n

Two other types of congressional material are similar to and often considered alongside10<\/a><\/sup>See, e.g.<\/em>, William N. Eskridge, Jr., Interpreting Legislative Inaction<\/em>, 87 MICH. L. REV. 67, 84\u201385 (1988) (considering together the impact of \u201cthe rejection of [a given] interpretation by either the enacting Congress <\/em>[what this Note categorizes as drafting history] or a subsequent one<\/em> [what this Note categorizes as post-enactment legislative history]\u201d).<\/span> post-enactment legislative history given that all three lie outside of the typical sources of legislative meaning: (1) earlier but rejected drafts of the statute being considered by the court; and (2) post-enactment amendments to the statute at issue that made it through bicameralism and presentment. But this Note does not count those types of evidence as post-enactment legislative history. Both forms of evidence rely on ratification through bicameralism and presentment, and they thus do not operate through sub-bicameral signaling like post-enactment legislative history does. Professor Anita Krishnakumar terms these two categories \u201cdrafting history\u201d and \u201camendment history,\u201d respectively, and describes both together as subsets of \u201cstatutory history.\u201d11<\/a><\/sup>Anita S. Krishnakumar, Statutory History<\/em>, 108 VA. L. REV. 263, 271 (2022). <\/span> Statutory history is \u201cthe historical evolution of a statute\u201d12<\/a><\/sup>Hubbard v. United States, 514 U.S. 695, 702\u201303 (1995).<\/span>\u2014as distinguished from typical \u201clegislative history\u201d\u2014\u201cthe hearings, committee reports, and debate leading up to the enactment in question.\u201d13<\/a><\/sup>ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 256 (2012).<\/span><\/p>\n

Drafting history relies on traditional understandings of congressional intent: Earlier discarded versions of a statute speak to a given Congress\u2019s intent in enacting the final version.14<\/a><\/sup>See, e.g.<\/em>, Arizona v. United States, 567 U.S. 387, 405 (2012) (arguing that proposals rejected while drafting the statute at issue \u201cunderscore[d] . . . Congress[\u2019s] . . . deliberate choice . . . [and] considered judgment\u201d regarding the question presented); see also<\/em> Krishnakumar, supra<\/em> note 11, at 271.<\/span> Although drafting history is vulnerable to the criticism that it only went through consideration by a single committee or one, but not both, chambers,15<\/a><\/sup>See, e.g.<\/em>, United States v. United Mine Workers of Am., 330 U.S. 258, 282\u201383 (1947) (arguing that any intent reflected by an amendment considered only by the Senate, but not the House, cannot be imputed onto Congress as a whole); see also<\/em> BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting) (\u201c[T]he statutory history I have in mind here isn\u2019t the sort of unenacted legislative history that often is neither truly legislative (having failed to survive bicameralism and presentment)<\/em> nor truly historical (consisting of advocacy aimed at winning in future litigation what couldn\u2019t be won in past statutes).\u201d (emphasis added)).<\/span> traditional legislative history (floor statements, committee reports, etc.) is vulnerable to the same criticism.16<\/a><\/sup>See, e.g.<\/em>, SCALIA & GARNER, supra<\/em> note 13, at 376 (\u201cFloor statements may well have been (and in modern times very probably were) delivered to an almost-empty chamber . . . . As for committee reports, they are drafted by committee staff and are not voted on (and rarely even read) by the committee members, much less by the full house.\u201d).<\/span> As Krishnakumar argues, neither drafting nor amendment history is as different from legislative history as the textualists who employ them would hope.17<\/a><\/sup>See<\/em> Krishnakumar, supra<\/em> note 11, at 315\u201322.<\/span><\/p>\n

But amendment history\u2019s basis in bicameralism will take longer to explain. As the Supreme Court has recognized, subsequent successful amendments to earlier legislation, unlike other sources of post-enactment legislative history, are properly enacted law which at least modify the text of a statute passed previously.18<\/a><\/sup>Consumer Prod. Safety Comm\u2019n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13 (1980) (\u201cWith respect to subsequent legislation<\/em> . . . Congress has proceeded formally through the legislative process. A mere statement in a conference report of such legislation as to what the Committee believes an earlier statute meant is obviously less weighty.\u201d).<\/span> Those amendments might also arguably speak to the meaning of parts of an earlier law they did not<\/em> amend\u2014getting closer to, but not quite, exceeding typical bicameralism. Consider, for instance, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.<\/em>,19<\/a><\/sup>576 U.S. 519 (2015).<\/span> which held that the Fair Housing Act20<\/a><\/sup>42 U.S.C. \u00a7\u00a7 3601\u20133619.<\/span> (\u201cFHA\u201d) recognized disparate impact liability.21<\/a><\/sup>Inclusive Cmtys.<\/em>, 576 U.S. at 525.<\/span> Justice Kennedy, writing for the majority, argued in part that when Congress amended the FHA in 1988 to create certain liability exemptions,22<\/a><\/sup>See<\/em> Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, 102 Stat. 1619.<\/span> it was aware that all nine circuits to have considered the disparate impact question had held that the FHA did recognize disparate impact liability.23<\/a><\/sup>Inclusive Cmtys.<\/em>, 576 U.S. at 535\u201336.<\/span> Congress expressly exempting certain liability while leaving unchanged the provisions directly at issue in the case24<\/a><\/sup>The Court focused on 42 U.S.C. \u00a7\u00a7 3604(a) and 3605(a), which provide that it is unlawful to \u201cotherwise make unavailable\u201d (which the Court read to refer to the impact, rather than intent, of an action) housing \u201cbecause of\u201d a person\u2019s protected characteristics. Inclusive Cmtys.<\/em>, 576 U.S. at 533\u201335.<\/span> served as \u201cconvincing support for the conclusion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals.\u201d25<\/a><\/sup>Inclusive Cmtys.<\/em>, 576 U.S. at 536. <\/span> Moreover, the liability exemptions enacted by the amendment sounded to the Court like exemptions from disparate impact liability<\/em>, and thus would have been \u201csuperfluous\u201d if the FHA did not provide for disparate impact liability in the first place.26<\/a><\/sup>Id.<\/em> at 537\u201338.<\/span><\/p>\n

Justice Alito\u2019s dissent disputed the majority\u2019s broad reading of the FHA\u2019s amendment history. He argued that \u201c[t]o change the meaning of language in an already enacted law, Congress must pass a new law amending that language. Intent that finds no expression in a statute is irrelevant.\u201d27<\/a><\/sup>Id.<\/em> at 569\u201370 (Alito, J., dissenting).<\/span> Addressing the majority\u2019s superfluity point, Justice Alito argued that \u201cwhat matters is what Congress did<\/em>, not what it might have \u2018assumed,\u2019\u201d pointing out that the liability exclusions \u201cmake no reference to\u201d the FHA provisions directly relevant to the question of disparate impact.28<\/a><\/sup>Id.<\/em> at 571.<\/span><\/p>\n

Yet one can still hold a bicameralist view of Congress and believe that a later amendment represented Congress\u2019s constitutionally recognized method for imbuing new statutory meaning into old law. The majority in Inclusive Communities<\/em> envisioned a Congress surveying the statute as a whole and \u201cma[king] a considered judgment to retain the relevant statutory text.\u201d29<\/a><\/sup>Id.<\/em> at 536.<\/span> On that view, when Congress amends a law, it updates the intent of the law with Congress\u2019s new intent by reenacting the parts of the law that live within the penumbras of the parts that Congress does<\/em> amend (for instance, adding certain liability carveouts reenacts the FHA as to the scope of liability generally). Scholars have described this type of inference as the \u201creenactment rule,\u201d30<\/a><\/sup>E.g.<\/em>, Eskridge, Interpreting Legislative Inaction<\/em>, supra<\/em> note 10, at 79; HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1365 (William N. Eskridge, Jr. & Philip Frickey eds., 1994); SCALIA & GARNER, supra<\/em> note 13, at 256. <\/span> reflecting the view that Congress breathes new meaning into the statute by reenacting it.31<\/a><\/sup>See<\/em> Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380\u201381 (1969) (\u201cSubsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction.\u201d).<\/span> This approach is a cousin of recent constitutional interpretation scholarship that argues the Bill of Rights should be read anew in light of the Reconstruction Amendments, the \u201cSecond Founding.\u201d32<\/a><\/sup>See, e.g.<\/em>, Bruce Ackerman, Constitutional Politics\/Constitutional Law<\/em>, 99 YALE L.J. 453, 460 (1989) (\u201c[W]hich fragments of the Founding order were now[, post-Reconstruction,] inconsistent with the new Republican constitution? . . . [T]he Court has self-consciously struggled with the synthetic problems involved in integrating Founding (time one) and Reconstruction (time two) into a principled doctrinal whole.\u201d); William M. Carter Jr., The Second Founding and the First Amendment<\/em>, 99 TEX. L. REV. 1065, 1065\u201382 (2021). <\/span><\/p>\n

The structure of Justice Kennedy\u2019s amendment history argument reveals his traditional, bicameral view. Justice Kennedy led his argument that the 1988 amendment had ratified disparate impact with the fact of the amendment itself and its legal backdrop (the unanimous courts of appeals).33<\/a><\/sup>See<\/em> Inclusive Cmtys.<\/em>, 576 U.S. at 535\u201336.<\/span> After that lead-in, Justice Kennedy bolstered his argument with sources from the legislative history and drafting history34<\/a><\/sup>See id.<\/em> (citing H.R. REP. NO. 100-711, at 89\u201393 (describing a rejected amendment that would have eliminated certain disparate impact liability)).<\/span> of the amendments. Without the successful amendment to cap off those sources of statutory meaning, Justice Kennedy may not have felt comfortable relying on the legislative and drafting history on its own. A House report, floor debate, hearing transcript, and rejected statutory language may have been useful to infer the purpose of the amendment that Congress ultimately adopted (and thus Congress\u2019s intent in \u201creenacting\u201d the FHA), but it would require some additional justification to argue that those post-enactment sources could be useful in interpreting the FHA itself without any post-enactment amendment to ratify that history. That latter form of reasoning is the focus of this Note.<\/p>\n

Two edge applications of the reenactment rule help define the boundary between amendment history, which can still rest on the traditional view of Congress, and post-enactment legislative history, which cannot. First, most formulations of the reenactment rule are limited to the inference that Congress \u201cincorporates any settled interpretations of the statute\u201d upon reenactment.35<\/a><\/sup>See, e.g.<\/em>, Eskridge, Interpreting Legislative Inaction<\/em>, supra<\/em> note 10, at 69.<\/span> That formulation does not permit courts to infer later congressional modification<\/em> of a statute sub silentio<\/em>, instead only allowing the inference that Congress ratified<\/em> the existing judicial interpretation of a statute, as recognized by its \u201csettled\u201d construction (which presumably reflects its original meaning). Thus, Inclusive Communities<\/em> perhaps goes beyond the traditional \u201creenactment rule\u201d if Justice Alito is correct that the original meaning of the relevant statute did not include disparate impact liability and that there was no settled interpretation for Congress to acquiesce to given that the Supreme Court had not yet weighed in.36<\/a><\/sup>See<\/em> 576 U.S. at 566, 568 (Alito, J., dissenting).<\/span> Regardless, Justice Kennedy\u2019s opinion rested on the opposite view, that Congress was aware of and tacitly approved the prevailing circuit court approach by amending the statute. Inclusive Communities<\/em> demonstrates, then, that even very aggressive uses of amendment history do not necessarily rely on a nontraditional view of Congress.<\/p>\n

Second, some courts have used the reenactment logic when Congress has not amended the statute at issue, but rather legislated on the same general topic. The Court in Zemel v. Rusk<\/em>37<\/a><\/sup>381 U.S. 1 (1965).<\/span> held that the Secretary of State could permissibly restrict where U.S. passport holders could travel under the Passport Act of 1926.38<\/a><\/sup>22 U.S.C. \u00a7 211; Zemel<\/em>, 381 U.S. at 7. <\/span> The Court argued that \u201c[d]espite 26 years of executive interpretation of the 1926 Act as authorizing the imposition of area restrictions, Congress in 1952, though it once again enacted legislation relating to passports, left completely untouched the broad rule-making authority granted in the earlier Act.\u201d39<\/a><\/sup>Id.<\/em> at 12. <\/span> The legislation in question was the Immigration and Nationality Act of 1952,40<\/a><\/sup>Pub. L. No. 82-414, 66 Stat. 163 (codified as amended in scattered sections of 8 U.S.C.).<\/span> which made it unlawful to enter or leave the United States without a valid passport after the President declares war or a national emergency.41<\/a><\/sup>See<\/em> 8 U.S.C. \u00a7 1185.<\/span> Assuming that that subsequent Act ratified executive practice still relies only on a bicameralist view of Congress, as it focuses on Congress positively enacting legislation and again pictures Congress looking over the existing legislation and deciding not to amend it.42<\/a><\/sup>See, e.g.<\/em>, Bob Jones Univ. v. United States, 461 U.S. 574, 601 (1983) (\u201cThe evidence of congressional approval of the policy embodied in [a decision by the Internal Revenue Service (IRS)] goes well beyond the failure of Congress to act on legislative proposals. Congress affirmatively manifested its acquiescence in the IRS policy when it enacted [a law subsequent to the statute at issue in the case].\u201d).<\/span> Whether that inference is valid<\/em> depends on how on-point the post-enactment legislation was. An amendment to the section at issue may strongly imply acquiescence, while a Zemel<\/em>-type statute may do so weakly. But the core logic remains the same. Lower courts have reflected a similar type of logic in providing that later appropriations statutes can \u201cchange[] substantive law.\u201d43<\/a><\/sup>Gillian E. Metzger, Taking Appropriations Seriously<\/em>, 121 COLUM. L. REV. 1075, 1127 (2021) (quoting Tin Cup, LLC v. U.S. Army Corps of Eng\u2019rs, 904 F.3d 1068, 1073 (9th Cir. 2018)).<\/span> At other times, courts have declined to recognize subsequent appropriations as overriding earlier substantive law.44<\/a><\/sup>Id.<\/em> at 1127\u201328 (citing, inter alia<\/em>, Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978)).<\/span> Again, whether a court will determine that the related statute modifies the earlier statute depends on the strength of the inference about whether an appropriations bill speaks to the appropriating Congress\u2019s intent to change the earlier law (e.g., requiring the language of \u201cfuturity,\u201d like the word \u201chereafter,\u201d in order to have effect beyond the appropriated fiscal year).45<\/a><\/sup>Id. <\/em>at 1127 (quoting Tin Cup<\/em>, 904 F.3d at 1073).<\/span><\/p>\n

Finally, where amendment history and post-enactment legislative history are used alongside each other, it is possible to tease apart their separate logics and assert that reliance on the latter still only makes sense if one also buys some theory of non-bicameralist congressional action. While many cases employ both simultaneously,46<\/a><\/sup>See, e.g.<\/em>, Bob Jones<\/em>, 461 U.S. at 600\u201301 (arguing that Congress demonstrated its acquiescence both by failing to pass several introduced bills that would have repudiated the administrative interpretation at issue, and<\/em> by amending the relevant statute without disturbing the reigning interpretation); N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 534 (1982) (same).<\/span> at least one statement of the doctrine of congressional acquiescence expressly conditions judicial recognition of acquiescence on Congress amending (not merely trying to amend) the statute at issue subsequent to the promulgation of the judicial or executive interpretation\u2014demonstrating that some courts have recognized that these types of evidence rely on separate rationales.47<\/a><\/sup>See<\/em> United States v. Rutherford, 442 U.S. 544, 554 n.10 (1979) (\u201c[When] an agency\u2019s statutory construction has been \u2018fully brought to the attention of the public and the Congress,\u2019 and the latter has not sought to alter that interpretation although it has amended the statute in other respects<\/em>, then presumably the legislative intent has been correctly discerned.\u201d (emphasis added)), quoted in, inter alia<\/em>, N. Haven<\/em>, 456 U.S. at 535.<\/span> As a result, separating out the two and independently critiquing their logic can help distinguish valid from invalid legal reasoning.<\/p>\n

Take United States v. Rutherford<\/em>.48<\/a><\/sup>442 U.S. 544 (1979). <\/span> The Court held that the Federal Food, Drug, and Cosmetic Act of 1938 (\u201cFDCA\u201d)49<\/a><\/sup>21 U.S.C. \u00a7\u00a7 301\u2013399.<\/span> did not impliedly exempt medication for terminally ill patients from the Act\u2019s requirements that \u201c[a]ny drug . . . not generally recognized . . . as safe and effective<\/em>\u201d be first approved for sale by the Secretary of Health, Education, and Welfare before going on the market.50<\/a><\/sup>Id.<\/em> \u00a7\u00a7 321(p)(1), 355 (1979) (emphasis added); Rutherford<\/em>, 442 U.S. at 551.<\/span> The Court thus rejected the appellate court\u2019s holding that \u201c\u2018safety\u2019 and \u2018effectiveness\u2019 . . . have no reasonable application to terminally ill cancer patients\u201d given they would \u201cdie of cancer regardless of what may be done.\u201d51<\/a><\/sup>Rutherford<\/em>, 442 U.S. at 551 (quoting Rutherford v. United States, 582 F.2d 1234, 1236\u201337 (10th Cir. 1978)).<\/span> The Court leveraged both amendment history and post-enactment legislative history to reach its holding: In 1962, Congress amended the FDCA to add \u201ceffective\u201d alongside the existing \u201csafe\u201d requirement.52<\/a><\/sup>Id.<\/em> at 552 n.8 (citing Drug Amendments, Pub. L. No. 87-781, 76 Stat. 780 (1962)).<\/span> The Court argued that the Senate and House reports on the amendment \u201cnote[d] with approval the [Food and Drug Administration\u2019s (\u201cFDA\u201d)] policy of considering effectiveness when passing on the safety of drugs prescribed for \u2018life-threatening disease.\u2019\u201d53<\/a><\/sup>Id.<\/em> at 553 & n.9 (citing S. REP. NO. 87-1744, at 15 (1962); H.R. REP. NO. 87-2464, at 3 (1962)).<\/span> The Court also highlighted that subsequent to the 1962 amendments, the particular drug at issue in the case, Laetrile, and the FDA\u2019s decision to require premarket approval for Laetrile had been \u201ca frequent subject of political debate,\u201d including in front of Congress.54<\/a><\/sup>Id.<\/em> at 554 n.10 (citing, inter alia, Banning of the Drug Laetrile from Interstate Commerce by FDA: Hearing Before the Subcomm. on Health & Sci. Rsch. of the S. Comm. on Hum. Res.<\/em>, 95th Cong. (1977)).<\/span><\/p>\n

Imagine that the FDA\u2019s policy was not settled enough for the amendment to have implicitly ratified it, or imagine that Laetrile was meaningfully different from the drugs Congress considered in 1962. If so, the Court could still argue that its conclusion holds on the basis of the post-1962 evidence. But if one holds only a traditional view of the enacting Congress, such reliance would make no sense, and the majority\u2019s reasoning would fall apart given that the post-1962 evidence could not have spoken to the intent of the last Congress to amend the statute.<\/p>\n

III. THE EVOLUTION OF POST-ENACTMENT LEGISLATIVE HISTORY<\/h4>\n

The loose doctrine of post-enactment legislative history has evolved over time. As Professor Nicholas Parrillo outlines, courts began routinely turning to any kind of legislative history around 1940, once government lawyers representing the newly expansive administrative state had the manpower, institutional incentive, and inside knowledge of statutory regimes necessary to plumb the previously impenetrable depths of legislative history.55<\/a><\/sup>See generally<\/em> Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950<\/em>, 123 YALE L.J. 266 (2013).<\/span> From then until the 1980s, the Court relied on post-enactment legislative history from time to time, in line with its expansive approach to using legislative history generally. As Professor William Eskridge described the approach in its latter days, \u201calmost anything that casts light upon what Congress attempted to do when it enacted a statute is potentially relevant.\u201d56<\/a><\/sup>Eskridge, The New Textualism<\/em>, supra<\/em> note 2, at 626.<\/span> The modern textualist revolution led by Justice Scalia in the mid-1980s57<\/a><\/sup>See generally<\/em> id.<\/em>; Stuart Minor Benjamin & Kristen M. Renberg, The Paradoxical Impact of Scalia\u2019s Campaign against Legislative History<\/em>, 105 CORNELL L. REV. 1023 (2020) (detailing the history of the textualist revolution).<\/span> sought to eradicate legislative history, particularly post-enactment<\/em> legislative history, which Justice Scalia saw as nonsensical even for purposivists. Since then, the mainstream view has been that post-enactment legislative history is worthless or next-to-worthless in statutory interpretation.58<\/a><\/sup>See generally<\/em> Brief of Members of Congress as Amici Curiae<\/em> in Support of Plaintiffs at 15\u201320, Wilderness Soc\u2019y v. Trump, No. 17-2587 (D.D.C. Nov. 19, 2018) (describing the modern state and evolution of the doctrine).<\/span> But post-enactment legislative history has reemerged in the MQD, with limited acknowledgment by its backers that such use is inconsistent with the rest of their textualist jurisprudence.59<\/a><\/sup>Two justices have defended the MQD\u2019s use of post-enactment legislative history. See<\/em> West Virginia v. EPA, 142 S. Ct. 2587, 2621 n.4 (2022) (Gorsuch, J., concurring); Biden v. Nebraska, 143 S. Ct. 2355, 2383 (2023) (Barrett, J., concurring). Both of these rationales are discussed in depth in Parts III.C.3\u20134.<\/span> The First Circuit recognized this confusion in a recent case, responding to a litigant\u2019s reliance on post-enactment legislative history by recognizing both the Supreme Court\u2019s \u201ceschewal of the importance of post-enactment legislative history outside the major questions context,\u201d and simultaneously \u201cthe absence of a clear statement by the Supreme Court that subsequent history has no bearing on the major questions determination.\u201d60<\/a><\/sup>United States v. Freeman, 147 F.4th 1, 21 (1st Cir. 2025).<\/span><\/p>\n

A. Post-Enactment Legislative History Before Scalia<\/em><\/strong><\/h4>\n

The Court occasionally turned to post-enactment legislative history during its several decades of broader reliance on legislative history from 1940 through the mid-1980s. Many of these uses went uncriticized or unremarked, in line with the sometimes instinctual or inconsistent approaches to statutory interpretation that typified the era,61<\/a><\/sup>See<\/em> HART & SACKS, supra<\/em> note 32, at 1169 (\u201cThe hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.\u201d).<\/span> making it difficult to craft a coherent \u201cdoctrine\u201d of post-enactment legislative history during this period.62<\/a><\/sup>See <\/em>Eskridge, Interpreting Legislative Inaction<\/em>, supra<\/em> note 10, at 90 (\u201c[O]ne might conclude that the Supreme Court\u2019s legislative inaction decisions are coherent . . . . These conclusions would be hasty. I have made the best effort I can to present the range of outcomes and the Court\u2019s reasoning as coherently as possible.\u201d).<\/span> In general, post-enactment legislative history was a weak but permissible source of congressional purpose. For instance, Professors Eskridge and Philip Frickey\u2019s hierarchy of sources of legislative history, built to reflect the pre-textualist Court\u2019s all-things-considered practice, included post-enactment legislative history but placed it at the bottom of the hierarchy\u2014the least authoritative source.63<\/a><\/sup>See, e.g.<\/em>, Eskridge, The New Textualism<\/em>, supra<\/em> note 2, at 636 (citing William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning<\/em>, 42 STAN. L. REV. 319, 353 (1990)).<\/span> This placement reflected the view that post-enactment legislative history \u201cform[ed] a hazardous basis for inferring the intent of an earlier [Congress].\u201d64<\/a><\/sup>United States v. Price, 361 U.S. 304, 313 (1960), quoted in, inter alia<\/em>, United States v. Phila. Nat\u2019l Bank, 374 U.S. 321, 349 (1963); Consumer Prod. Safety Comm\u2019n v. GTE Sylvania, Inc., 447 U.S. 102, 117 (1980).<\/span> Courts in this era would thus sometimes resort to such material only out of claimed necessity, where no other sources could speak to the enacting legislature\u2019s purpose.65<\/a><\/sup>See<\/em> Andrus v. Shell Oil Co., 446 U.S. 657, 666 n.8 (1980) (\u201c[W]e cannot fail to note Mr. Chief Justice Marshall\u2019s dictum that \u2018[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived.\u2019 In consequence, while arguments predicated upon subsequent congressional actions must be weighed with extreme care, they should not be rejected out of hand . . . .\u201d (citations omitted) (quoting United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805) (Marshall, C.J.)); see also<\/em> Eskridge, The New Textualism<\/em>, supra<\/em> note 2, at 635 (When the Court considers post-enactment legislative history, its \u201cstated reason is usually the dearth of other interpretive guides.\u201d). <\/span><\/p>\n

That suspicion was in line with the era\u2019s purposivism.66<\/a><\/sup>See<\/em> Anita S. Krishnakumar, Backdoor Purposivism<\/em>, 69 DUKE L.J. 1275, 1277 (2020) (describing the 1970s as \u201cthe heyday of purposive analysis\u201d).<\/span> Purposivists generally care about the purpose of the enacting<\/em> legislators, relying on the following logic: The Constitution\u2019s structure demands legislative supremacy, meaning judges must be faithful agents of the legislature.67<\/a><\/sup>See<\/em> John F. Manning, Textualism and the Equity of the Statute<\/em>, 101 COLUM. L. REV. 1, 58\u2013105 (2001).<\/span> But faithful to what, exactly? Because the legislative power is uniquely prone to abuse, the Framers required bicameralism and presentment to carefully circumscribe how the legislature could permissibly convey instructions to the judiciary.68<\/a><\/sup>See <\/em>Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1983) (\u201cIt emerges clearly that the prescription for legislative action in Art. I, \u00a7\u00a7 1, 7 [vesting clause and bicameralism & presentment], represents the Framers\u2019 decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.\u201d); accord<\/em> Frank H. Easterbrook, Statutes\u2019 Domains<\/em>, 50 U. CHI. L. REV. 533, 539 (1983) (\u201cA court could not treat these widely-supported but never-enacted proposals as law without dishonoring the procedural aspects of the legislative process . . . . Under article I of the Constitution, not to mention the rules of the chambers of Congress, support is not enough for legislation.\u201d).<\/span> Thus, judges should be faithful to the legislature\u2019s instructions as enacted in particular statutes.69<\/a><\/sup>Daniel A. Farber, Statutory Interpretation and Legislative Supremacy<\/em>, 78 GEO. L.J. 281, 288\u201389 (1989) (\u201cHence, to give legal effect to legislative intentions in the absence of any relevant statutory text would undermine the constitutional scheme. Disobedience, therefore, must relate to a text rather than merely to an unexpressed intention.\u201d). We will leave to the side the obvious next question, which has dominated most debates over statutory interpretation in the modern era: how best to adhere to the legislature\u2019s instructions\u2014by focusing on the text, or on the purpose? See<\/em> John F. Manning, What Divides Textualists from Purposivists?<\/em>, 106 COLUM. L. REV. 70, 95\u201396 (2006).<\/span> As Professors Henry Hart and Albert Sacks put it: When determining statutory purpose, \u201ca court should try to put itself in imagination in the position of the legislature which enacted the measure.\u201d70<\/a><\/sup>HART & SACKS, supra<\/em> note 32, at 1378.<\/span> As a result, most of the cases from this period citing atypical sources of legislative purpose relied more heavily on amendment history, even if also citing unenacted post-enactment legislative history.71<\/a><\/sup>See, e.g.<\/em>, Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380\u201381 (\u201cHere, the Congress has not just kept its silence by refusing to overturn the administrative construction, but has ratified it with positive legislation.\u201d).<\/span><\/p>\n

Yet a few cases from this period, like the two outlined below, bucked the trend, relying on post-enactment legislative history even where it made little sense under a faithful agent model focused on the enacting Congress\u2019s purpose. The common logic visible in these cases is that the Court would recognize a congressional policy where it saw a long and consistent history of congressional activity,72<\/a><\/sup>See <\/em>Flood v. Kuhn, 407 U.S. 258, 281 (1972).<\/span> or where Congress appeared aware of a divisive issue (through hearings and the like) even though never acting through bicameralism and presentment.73<\/a><\/sup>See <\/em>Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 732\u201333 (1975).<\/span> Another common thread is that the Court was willing to read congressional signaling to affirm the status quo\u2014whether the reigning judicial or executive construction of the statute\u2014but rarely to change the status quo.74<\/a><\/sup>See<\/em> Eskridge, Interpreting Legislative Inaction<\/em>, supra<\/em> note 10, at 71, 84; but<\/em> see, e.g.<\/em>, Bradley v. Sch. Bd., 416 U.S. 696, 716 n.23 (1974).<\/span> Finally, both cases construed \u201ccommon law statutes,\u201d where it may be even more important for judges to heed congressional signaling for fear of their own development of the statutes straying too far from congressional intent.75<\/a><\/sup>See<\/em> William N. Eskridge, Public Values in Statutory Interpretation<\/em>, 137 U. PA. L. REV. 1007, 1052 (1989) (describing Section 10(b) of the Securities Exchange Act (the statute at issue in Blue Chip Stamps<\/em>), as a \u201ccommon law statute\u201d given it was drafted with broad wording that demands gap-filling, like the Sherman Antitrust Act (the statute at issue in Flood v. Kuhn<\/em>), Section 1983, various civil rights laws, and others).<\/span> Focusing on these outliers that leaned on post-enactment legislative history alone showcases early forms of the unstated logic that has now reemerged in the MQD.<\/p>\n

1. Flood: Failed Bills as Acquiescence<\/em><\/strong><\/p>\n

In Flood v. Kuhn<\/em>,76<\/a><\/sup>407 U.S. 258 (1972).<\/span> the Court declined to overturn a prior decision, although acknowledging it was wrongly decided, on the basis that Congress had only ever attempted to expand, not overturn, that earlier decision. Fifty years before Flood<\/em>, the Court in Federal Baseball Club v. National League<\/em>77<\/a><\/sup>259 U.S. 200 (1922).<\/span> had exempted professional baseball from the Sherman Antitrust Act\u2019s78<\/a><\/sup>15 U.S.C. \u00a7\u00a7 1\u20137.<\/span> prohibition on contracts \u201cin restraint of trade or commerce among the several States\u201d79<\/a><\/sup>Id.<\/em> \u00a7 1.<\/span> on the logic that baseball did not involve commerce between the states.80<\/a><\/sup>Fed. Baseball<\/em>, 259 U.S. at 209.<\/span> By the time of Flood<\/em>, the Court recognized that reasoning was wrong: \u201cProfessional baseball is a business and it is engaged in interstate commerce.\u201d81<\/a><\/sup>Flood<\/em>, 407 U.S. at 282.<\/span> And, due to Federal Baseball<\/em>\u2019s poor reasoning, baseball had become an \u201caberration\u201d by the time of Flood<\/em> as courts had denied litigants\u2019 requests to extend the Federal Baseball<\/em> exemption to several other sports (football, basketball, etc.).82<\/a><\/sup>Id.<\/em> at 282\u201383.<\/span><\/p>\n

However, the Court highlighted that since 1953 (when the Court decided another case reaffirming Federal Baseball<\/em>), \u201cmore than 50 bills ha[d] been introduced in Congress relative to the applicability or nonapplicability of the antitrust laws to baseball.\u201d83<\/a><\/sup>Id.<\/em> at 281.<\/span> Of the bills that \u201cpassed one house or the other,\u201d all \u201cwould have expanded, not restricted, the . . . exemption to other . . . sports.\u201d84<\/a><\/sup>Id.<\/em><\/span> The Court concluded that failing to overturn the exception \u201cwith full and continuing congressional awareness\u201d demonstrated Congress\u2019s preference against<\/em> overturning it:85<\/a><\/sup>Id.<\/em> at 283.<\/span><\/p>\n

[The introduced legislation], obviously, has been deemed to be something other than mere congressional silence and passivity<\/em>. . . . Congress, by its positive inaction<\/em>, has allowed those decisions to stand for so long and, far beyond mere inference and implication, has clearly evinced a desire not to disapprove them legislatively.86<\/a><\/sup>Id.<\/em> at 283\u201384 (emphasis added).<\/span><\/p>\n

Justice Douglas, in dissent, advanced the opposite reading of the post-enactment legislative history. He argued that the 50 bills\u2019 failure to survive bicameralism demonstrated Congress\u2019s disapproval <\/em>of antitrust exemptions for sports leagues, not its approval of the status quo.87<\/a><\/sup>Flood<\/em>, 407 U.S. at 287 (Douglas, J., dissenting).<\/span> And Justice Douglas reminded the majority that, regardless, any reliance on congressional acquiescence is suspect.88<\/a><\/sup>Id.<\/em> at 287 n.3.<\/span> Justice Marshall\u2019s dissent added an argument sounding in political economy: by exempting baseball alone from antitrust law (and the player protections that would have come with that law), the Court isolated baseball players, making them incapable of mustering the political capital needed to get Congress to care enough about the issue to overturn Federal Baseball<\/em>.89<\/a><\/sup>Id.<\/em> at 292 (Marshall, J., dissenting).<\/span><\/p>\n

2. Blue Chip Stamps: Failed Bills and Common Law Statutes<\/em><\/strong><\/p>\n

Like in Flood<\/em>, the Court in Blue Chip Stamps v. Manor Drug Stores<\/em>90<\/a><\/sup>421 U.S. 723 (1975).<\/span> relied on failed legislative proposals to justify its holding that only plaintiffs who have actually purchased or sold shares that they allege were fraudulently marketed may maintain a private action under Section 10(b) of the Securities Exchange Act of 1934.91<\/a><\/sup>15 U.S.C. \u00a7 78j; Blue Chip<\/em>, 421 U.S. at 723.<\/span> That is, putative plaintiffs like those in Blue Chip<\/em>, who had some noncontractual opportunity to buy or sell shares that they rejected in reliance on allegedly misleading representations, cannot maintain an action.92<\/a><\/sup>Blue Chip<\/em>, 421 U.S. at 734.<\/span><\/p>\n

Just over twenty years prior, in 1952, the Second Circuit in Birnbaum v. Newport Steel Corp.93<\/a><\/sup><\/em>193 F.2d 461 (2d Cir. 1952).<\/span><\/em> announced the initial version of that rule based on Section 10(b)\u2019s proscription of fraudulent conduct \u201cin connection with the purchase or sale of any security.\u201d94<\/a><\/sup>Blue Chip<\/em>, 421 U.S. at 730; 15 U.S.C. \u00a7 78j(b).<\/span> Five years later, and again two years after that, the Securities and Exchange Commission requested Congress amend Section 10(b) to overturn Birnbaum<\/em> by extending Section 10(b)\u2019s coverage to include \u201cany attempt to purchase or sell.\u201d95<\/a><\/sup>Id.<\/em> at 732 (quoting S. 2545, 85th Cong. (1957); S. 1179, 86th Cong. (1959)).<\/span> Congress rejected both proposals.96<\/a><\/sup>Id.<\/em><\/span> Moreover, the Court pointed out, \u201cvirtually all lower federal courts facing the issue in the hundreds of reported cases presenting this question over the past quarter century\u201d followed Birnbaum<\/em>\u2019s rule.97<\/a><\/sup>Id.<\/em> at 731.<\/span> \u201cThe longstanding acceptance by the courts, coupled with Congress\u2019 failure to reject Birnbaum<\/em>[] . . . argue[d] significantly in favor of acceptance of the Birnbaum <\/em>rule by [the] Court.\u201d98<\/a><\/sup>Id.<\/em> at 733.<\/span><\/p>\n

Notably, the Court disclaimed its role as a faithful agent of Congress, seemingly because it felt empowered by Section 10(b)\u2019s broad language to exercise common law-esque powers. The present state of Section 10(b) law, the Court recognized, was \u201ca judicial oak which ha[d] grown from little more than a legislative acorn.\u201d99<\/a><\/sup>Id.<\/em> at 737.<\/span> As to the question presented, the Court could not \u201cdivine from the language of \u00a7 10(b) the express \u2018intent of Congress,\u2019\u201d and Section 10(b)\u2019s contemporaneous legislative history was only moderately useful as the Court found no \u201cindication that Congress considered the problem of private suits . . . at the time of its passage.\u201d100<\/a><\/sup>Blue Chip<\/em>, 421 U.S. at 729, 737.<\/span> Thus, the Court considered it \u201cproper\u201d to weigh \u201cpolicy considerations\u201d in \u201cflesh[ing] out the portions of the law with respect to which neither the congressional enactment nor the administrative regulations offer[ed] conclusive guidance.\u201d101<\/a><\/sup>Id.<\/em> at 737.<\/span><\/p>\n

C. Post-Enactment Legislative History After Scalia<\/em><\/strong><\/h4>\n

Although the Warren and Burger Courts already reflected skepticism of post-enactment legislative history, Justice Scalia\u2019s elevation to the Court in 1986 shifted it decisively away from such evidence. During his first term on the Court, Justice Scalia penned a scathing dissent in Johnson v. Transportation Agency<\/em>102<\/a><\/sup>480 U.S. 616 (1987).<\/span> in response to a congressional acquiescence argument by the majority. Justice Brennan, writing for the Court, advanced the then-typical cautious post-enactment legislative history argument: the Court had earlier held that Title VII, which prohibits racial (and other) discrimination in employment, permits voluntary affirmative action programs.103<\/a><\/sup>United Steelworkers of Am. v. Weber, <\/em>443 U.S. 193 (1979).<\/span> In the eight years following that decision, Congress had neither amended nor even attempted to amend Title VII despite the case being \u201cwidely publicized\u201d and \u201caddress[ing] a prominent issue of public debate,\u201d and Congress had separately amended Title VII in response to a different Court opinion.104<\/a><\/sup>Johnson<\/em>, 480 U.S. at 629 n.7.<\/span> As a result, the Court now \u201cassume[d] that [its] interpretation was correct.\u201d105<\/a><\/sup>Id.<\/em> <\/span> Justice Brennan acknowledged that although such evidence \u201cmay not always provide crystalline revelation, . . . it may be probative to varying degrees.\u201d106<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Justice Scalia argued that such acquiescence logic, \u201cwhich frequently haunts our opinions, should be put to rest. It is based . . . on the patently false premise that the correctness of statutory construction is to be measured by what the current Congress desires, rather than by what the law as enacted meant.\u201d107<\/a><\/sup>Id.<\/em> at 671 (Scalia, J., dissenting). <\/span> He added that reliance on Congress\u2019s failure to legislate \u201cignore[s] rudimentary principles of political science\u201d by ignoring the multiple permissible inferences that the Court could have drawn from bare congressional silence: \u201c(1) approval of the status quo, as opposed to (2) inability to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the status quo, or even (5) political cowardice.\u201d108<\/a><\/sup>Id.<\/em> at 672. <\/span><\/p>\n

Federal courts have, at least facially, come around to Justice Scalia\u2019s view. Most modern treatises agree that post-enactment legislative history is not a fruitful source of statutory meaning.109<\/a><\/sup>See, e.g.<\/em>, 2B SINGER & SINGER, supra<\/em> note 5, \u00a7 48:20 (\u201cA legislator\u2019s post enactment statements about legislative intent have limited value to clarify a statute\u2019s meaning . . . .\u201d).<\/span> Modern courts will often quote110<\/a><\/sup>See, e.g.<\/em>, United States v. Woods, 571 U.S. 31, 48 (2013); Kisor v. Wilkie, 139 S. Ct. 2400, 2446 (2019) (Gorsuch, J., concurring in the judgment).<\/span> Justice Scalia\u2019s statement of the \u201claw\u201d of post-enactment legislative history, which abandoned the little weight it was afforded by purposivists in favor of no weight:<\/p>\n

Post-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation. Real (pre-enactment) legislative history is persuasive to some because it is thought to shed light on what legislators understood an ambiguous statutory text to mean when they voted to enact it into law. But post-enactment legislative history by definition \u201ccould have had no effect on the congressional vote.\u201d111<\/a><\/sup>Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011) (quoting District of Columbia v. Heller, 554 U.S. 570, 605 (2008) (Scalia, J.)).<\/span><\/p>\n

When federal courts do rely on post-enactment legislative history, as in the litigation over whether Title VII bars discrimination based on sexual orientation, they are often reversed.112<\/a><\/sup>Hively v. Ivy Tech Community College<\/em>, 830 F.3d 698 (7th Cir. 2016), Simonton v. Runyon<\/em>, 232 F.3d 33 (2d Cir. 2000), and other circuit panels relied on Congress \u201ctime and time again\u201d rejecting \u201cevery attempt to add sexual orientation to the list of categories protected from discrimination by Title VII\u201d to conclude that Title VII does not protect sexual orientation. Hively<\/em>, 830 F.3d at 717; see also Simonton<\/em>, 232 F.3d at 35 (similar). Both were overturned by subsequent en banc decisions of their respective circuits. See <\/em>Zarda v. Altitude Express, Inc., 883 F.3d 100, 108 (2d Cir. 2018) (en banc); Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 341 (7th Cir. 2017) (en banc). And the other circuit opinions left standing were overturned by the Supreme Court in Bostock v. Clayton County<\/em>, 140 S. Ct. 1731 (2020), which rejected the post-enactment legislative history argument made by Justice Kavanaugh in dissent. Id.<\/em> at 1747 (citing id.<\/em> at 1823\u201324, 1830\u201331 (Kavanaugh, J., dissenting)). But see <\/em>Gov\u2019t Emps. Ret. Sys. of Virgin Islands v. Gov\u2019t of Virgin Islands, 995 F.3d 66, 115 (3d Cir. 2021) (Matey, J., concurring in part and dissenting in part) (pointing out that the majority impermissibly relied on post-enactment legislative history).<\/span> Any modern federal courts that occasionally rely on post-enactment legislative history should, under this logic, limit their reliance to post-enactment legislative history produced by \u201cthose who drafted or voted for the law.\u201d113<\/a><\/sup>Heller<\/em>, 554 U.S. at 605. <\/span> In that context, at least, a purposivist could argue the legislative history reflected the views of legislators in the enacting Congress.114<\/a><\/sup>Sullivan v. Finkelstein, 496 U.S. 617, 631 (1990) (Scalia, J., concurring in part) (\u201cIt seems to be a rule for the use of subsequent legislative history that the legislators or committees of legislators whose post-enactment views are consulted must belong to the institution that passed the statute.\u201d).<\/span><\/p>\n

The modern rejection of post-enactment history and congressional acquiescence may even undermine the landmark precedent governing the exercise of executive power, Youngstown Sheet & Tube Co. v. Sawyer<\/em>.115<\/a><\/sup>343 U.S. 579 (1952).<\/span> In particular, the modern doctrine calls into question whether it is possible for \u201ccongressional inertia, indifference or quiescence\u201d116<\/a><\/sup>Id.<\/em> at 637 (Jackson, J., concurring in the judgment and opinion of the Court).<\/span> to be read as enabling independent presidential action.117<\/a><\/sup>See <\/em>Kristin E. Eichensehr, Courts, Congress, and the Conduct of Foreign Relations<\/em>, 85 U. CHI. L. REV. 609, 655 (2018) (\u201c[T]raditional Youngstown<\/em> Category 2 cases involve congressional silence, and \u201cassigning interpretive consequences to congressional silence or inaction is perilous at best\u201d because congressional silence may indicate agreement or simply reflect inertia . . . .\u201d (quoting Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and the Separation of Powers<\/em>, 126 HARV. L. REV. 411, 451 (2012)); David B. Froomkin, The Nondelegation Doctrine and the Structure of the Executive<\/em>, 41 YALE J. ON REGUL. 60, 94 (2024) (\u201cCases following Youngstown<\/em>, in confronting situations with a less clear congressional statement, have encountered more difficulty. The Court has often presumed broad presidential authority from vague statutory language and has even sometimes taken post-enactment congressional silence to indicate congressional approval of adventurous presidential conduct. In a post-Chadha<\/em> world, . . . relying on congressional silence to legitimate presidential action is particularly perverse . . . .\u201d (footnotes omitted)).<\/span> The impact on Youngstown<\/em>, however, may still be up for grabs: the Court has been less hostile to recognizing historical gloss on the Constitution<\/em>,118<\/a><\/sup>See <\/em>Sherif Girgis, Living Traditionalism<\/em>, 98 N.Y.U. L. REV. 1477, 1477 (2023) (\u201cToday\u2019s Supreme Court is committed to originalism\u2014the idea that the Constitution\u2019s meaning is fixed at ratification. But it often rests decisions on the post-ratification practices of other actors . . . . Call this method \u2018living traditionalism\u2019 . . . .\u201d).<\/span> the focus of Youngstown<\/em>, than it has been to recognizing historical gloss on statutes<\/em>, the focus of this Note.<\/p>\n

D. MQD Complicating the Modern Doctrine<\/em><\/strong><\/h4>\n

Despite that near abandonment, post-enactment legislative history has made a comeback in the Court\u2019s new MQD jurisprudence. MCI Telecommunications Corp. v. American Telephone & Telegraph Co.<\/em>,119<\/a><\/sup>512 U.S. 218 (1994).<\/span> what some consider the very first MQD case,120<\/a><\/sup>See<\/em> Cass R. Sunstein, Chevron Step Zero<\/em>, 92 VA. L. REV. 187, 236 (2006) (describing MCI<\/em> Telecomms.<\/em> as such). But see <\/em>Cass R. Sunstein, Two Justifications for the Major Questions Doctrine<\/em>, 76 FLA. L. REV. 251, 262 (2024) (arguing that MCI Telecomms. <\/em>\u201ccould have rested only on the ordinary meaning\u201d of the relevant term, and that its \u201cmain thrust . . . was textualist, and did not involve the major questions doctrine at all\u201d). Justice Gorsuch traces \u201c[s]ome version of\u201d the MQD \u201cto at least 1897.\u201d West Virginia v. EPA, 142 S. Ct. 2587, 2619 (2022) (Gorsuch, J., concurring) (citing ICC v. Cincinnati, N. O. & T. P. R. Co., 167 U.S. 479, 499 (1897)).<\/span> repudiated the use of amendment history in a majority opinion authored by Justice Scalia.121<\/a><\/sup>See<\/em> MCI Telecomms.<\/em>, 512 U.S. at 232\u201333.<\/span> But several of the MQD cases since have looked to the views of subsequent Congresses at least to determine whether an issue is major, and thus whether it is subject to the MQD\u2019s requirement that Congress provide clear authorization for the agency\u2019s claimed authority.122<\/a><\/sup>West Virginia<\/em>, 142 S. Ct. at 2610.<\/span> And the close reading of the cases below123<\/a><\/sup>Gonzales v. Oregon<\/em>, 546 U.S. 243 (2006), one of the early few major questions cases, deployed post-enactment legislative history in a brief paragraph supporting its holding rejecting the Attorney General\u2019s claim of authority. See<\/em> id.<\/em> at 266. Because its use was sparse and not mentioned by either dissent, this Note will not closely analyze the case.<\/span> shows that the MQD cases may use post-enactment legislative history beyond the \u201cmajorness\u201d question, instead using it to understand the meaning of an earlier statute\u2014the same purpose as the pre-textualist revolution cases. Post-enactment evidence relied on by MQD cases has included later quasi-on-point legislation (\u00e0 la Zemel<\/em>),124<\/a><\/sup>See<\/em> FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000); Gonzales<\/em>, 546 U.S. at 266; Nat\u2019l Fed\u2019n of Indep. Bus. v. Dep\u2019t of Lab., 142 S. Ct. 661, 667 (2022) (Gorsuch, J., concurring).<\/span> Congress rejecting bills that would have delegated the claimed authority,125<\/a><\/sup>See Brown & Williamson<\/em>, 529 U.S. at 144; Nat\u2019l Fed\u2019n of Indep. Bus.<\/em>, 142 S. Ct. at 668 (Gorsuch, J., concurring); West Virginia<\/em>, 142 S. Ct. at 2610; Biden v. Nebraska, 143 S. Ct. 2355, 2373 & n.8 (2023).<\/span> statements and practice by executive agencies (especially the historical failure to assert the now-claimed authority),126<\/a><\/sup>See Brown & Williamson<\/em>, 529 U.S. at 144; West Virginia<\/em>, 142 S. Ct. at 2610. <\/span> and statements by individual lawmakers.127<\/a><\/sup>See<\/em> Nebraska<\/em>, 143 S. Ct. at 2374.<\/span><\/p>\n

Such reliance is striking given the authors of modern MQD opinions are avowed textualists.128<\/a><\/sup>See<\/em> John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance<\/em>, 2000 SUP. CT. REV. 223, 263\u201367 (critiquing Brown & Williamson<\/em>\u2019s use of post-enactment legislative history as inconsistent with textualism); Daniel T. Deacon & Leah M. Litman, The New Major Questions Doctrine<\/em>, 109 VA. L. REV. 1009, 1062 (2023); Anita S. Krishnakumar, What the New Major Questions Doctrine Is <\/em>Not, 92 GEO. WASH. L. REV. 1117, 1149 (2024); Chad Squitieri, Who Determines Majorness?<\/em>, 44 HARV. J.L. & PUB. POL\u2019Y 463, 485\u201386 (2021).<\/span> As explored below, this dissonance could be explained by the reliance on post-enactment legislative history in a foundational MQD case, FDA v. Brown & Williamson Tobacco Corp.<\/em>,129<\/a><\/sup>529 U.S. 120 (2000).<\/span> written by a non-textualist. Despite the shift in methodology toward textualism, that case\u2019s initial approach persisted. Reliance on post-enactment history is especially problematic for the textualists who believe (like Justice Gorsuch) that the text is defined not by the meaning we would give to it today, but instead by its \u201coriginal meaning\u201d\u2014the meaning that the drafters or the public would have given it.130<\/a><\/sup>See<\/em> Victoria Nourse, Textualism 3.0: Statutory Interpretation After Justice Scalia<\/em>, 70 ALA. L. REV. 667, 676 (2019) (explaining that originalism has seeped into textualism).<\/span> On that view, whatever \u201ccontext\u201d post-enactment history provides for a certain text is irrelevant to the original<\/em> meaning of a statute. The original public meaning textualist justices have landed in the same place as the purposivists who struggled to justify post-enactment history given their focus on the purpose of the enacting Congress. Indeed, Justice Barrett\u2019s textualist defense of the MQD\u2019s use of post-enactment legislative history in Biden v. Nebraska131<\/a><\/sup><\/em>143 S. Ct. 2355 (2023).<\/span> <\/em>is liable to the same critiques to which Justice Scalia subjected the 20th century post-enactment history cases.132<\/a><\/sup>See infra <\/em>notes 187\u2013190 and accompanying text. <\/span><\/p>\n

1. Brown & Williamson: Origins of Post-Enactment History in the MQD<\/em><\/strong><\/p>\n

In Brown & Williamson<\/em>, now cited by the Court as the second proto-MQD case (i.e., deploying MQD logic before the MQD label existed),133<\/a><\/sup>See West Virginia<\/em>, 142 S. Ct. at 2609 (citing as proto-MQD cases MCI Telecomms.<\/em>, 512 U.S. 218 (1994), Brown & Williamson<\/em>, 529 U.S. 120 (2000); Gonzales v. Oregon, 546 U.S. 243 (2006); Utility Air Regul. Grp. v. EPA, 573 U.S. 302 (2014); King v. Burwell, 576 U.S. 473 (2015)).<\/span> the Court held that the Food, Drug, and Cosmetic Act\u2019s grant of authority to the FDA to regulate \u201cdrugs\u201d and \u201cdevices\u201d134<\/a><\/sup>21 U.S.C. \u00a7 321(g)\u2013(h).<\/span> did not include the \u201cdrug\u201d nicotine or the \u201cdevice\u201d of a cigarette, invalidating an FDA regulation of tobacco products for minors.135<\/a><\/sup>Brown & Williamson<\/em>, 529 U.S. at 125\u201326.<\/span> Justice O\u2019Connor, writing for the majority, applied Chevron<\/em>\u2019s136<\/a><\/sup>Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984).<\/span> two-step framework to determine whether the Court must defer to the FDA\u2019s interpretation of the FDCA.137<\/a><\/sup>Brown & Williamson<\/em>, 529 U.S. at 133.<\/span> She concluded at Step One that \u201cCongress ha[d] directly spoken to the issue\u201d and precluded the FDA\u2019s interpretation.138<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Much of the Court\u2019s analysis hinged on six pieces of tobacco-related legislation that Congress enacted subsequent to the FDCA.139<\/a><\/sup>Id.<\/em> at 143. <\/span> Justice O\u2019Connor argued that such statutes were enacted against the \u201cbackdrop of the FDA\u2019s consistent and repeated statements that it lacked authority under the FDCA to regulate tobacco,\u201d and Congress\u2019s consideration and rejection of legislation that would have granted that jurisdiction.140<\/a><\/sup>Id.<\/em> at 144.<\/span> She concluded that those statutes \u201ceffectively ratified the FDA\u2019s long-held position.\u201d141<\/a><\/sup>Id.<\/em><\/span> As opposed to the more modern MQD cases that claim to use post-enactment legislative history only to determine whether an issue is major, thus mitigating some of the textualist critiques, Brown & Williamson<\/em> explicitly used such evidence to determine the merits of whether Congress delegated the claimed power. That reliance on post-enactment history prompted Justice Breyer\u2019s dissent to quote from a Justice Scalia opinion: \u201cArguments based on subsequent legislative history . . . should not be taken seriously, not even in a footnote.\u201d142<\/a><\/sup>Id.<\/em> at 181\u201382 (Breyer, J., dissenting) (quoting Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J., concurring)).<\/span><\/p>\n

Although the Court\u2019s reasoning based on subsequent positive law could conceivably have been supported by Zemel<\/em>-like logic on the border between amendment history and post-enactment legislative history,143<\/a><\/sup>See supra <\/em>notes 34\u201342 and accompanying text.<\/span> the Court seemed to instead reject a traditional bicameralist view of Congress: Justice O\u2019Connor theorized that, upon enactment, a statute \u201cmay have a range of plausible meanings\u201d that \u201c[o]ver time\u201d become \u201cshape[d] or focus[ed]\u201d by \u201csubsequent acts.\u201d144<\/a><\/sup>Brown & Williamson<\/em>, 529 U.S. at 143.<\/span> The \u201cclassic judicial task\u201d is to reconcile those laws, which may mean \u201cthat the implications of a statute may be altered by the implications of a later statute.\u201d145<\/a><\/sup>Id.<\/em> (quoting United States v. Fausto, 484 U.S. 439, 453 (1988)).<\/span> Justice O\u2019Connor observed that there was no evidence that the FDCA-enacting Congress considered whether the Act would apply to tobacco products.146<\/a><\/sup>Id.<\/em> at 146\u201347.<\/span> However, the tobacco statutes passed over the course of thirty-five years \u201cconsistently evidenced [Congress\u2019s] intent\u201d\u2014together, they reflected a \u201ccollective premise\u201d and a coherent \u201ccongressional policy.\u201d147<\/a><\/sup>Id.<\/em> at 139, 157.<\/span> Unlike the amendment history cases that rely on reenactment rule logic\u2014that a later Congress substantially reenacts a statute upon amending it, thus imbuing it with new meaning\u2014the Brown & Williamson<\/em> Court seemed to instead believe that Congress could send signals of its general intent over time.<\/p>\n

That more flexible approach to statutory interpretation accorded with the non-textualist Justice O\u2019Connor\u2019s \u201cpractical\u201d approach to judging.148<\/a><\/sup>See <\/em>Stewart J. Schwab, Tribute, Justice O\u2019Connor as the Good Judge<\/em>, 137 HARV. L. REV. 1809, 1811 (2024) (\u201cShe employed a variety of approaches in her judicial opinions and was not wedded to any label, be it textualism, originalism, purposivism, or doctrinalism.\u201d).<\/span> And Brown & Williamson<\/em> came a decade before John Manning wrote that textualism was \u201cuncontroversial\u201d at the Supreme Court.149<\/a><\/sup>John F. Manning, The New Purposivism<\/em>, 2011 SUP. CT. REV. 113, 114 (2012).<\/span> It was thus not inconsistent for Justice O\u2019Connor to deploy an atextualist source of meaning at that time. But that original consistency has bred later inconsistency. The modern MQD cases relying on post-enactment legislative history routinely cite Brown & Williamson<\/em> while considering post-enactment legislative history,150<\/a><\/sup>See <\/em>West Virginia v. EPA, 142 S. Ct. 2587, 2610 (2022) (citing Brown & Williamson<\/em>, 529 U.S. at 159\u201360); id.<\/em> at <\/em>2623 (Gorsuch, J., concurring) (citing Brown & Williamson<\/em>, 529 U.S. at 158\u201359); Biden v. Nebraska, 143 S. Ct. 2355, 2383 (2023) (Barrett, J., concurring) (citing Brown & Williamson<\/em>, 529 U.S. at 159).<\/span> disregarding the fact that the methodological foundation of the earlier reasoning has fallen away. This precedent, perhaps, is the source of the Court\u2019s confusion in the MQD doctrine.<\/p>\n

2. NFIB: More Post-Enactment History in the Proto-MQD<\/em><\/strong><\/p>\n

The Court in National Federation of Independent Business v. Department of Labor151<\/a><\/sup><\/em>142 S. Ct. 661 (2022) (per curiam).<\/span><\/em> stayed implementation of an Occupational Safety and Health Administration (\u201cOSHA\u201d) rule that would have required employers with at least 100 employees to implement a COVID-19 vaccine mandate for their workers on the grounds that the rule exceeded OSHA\u2019s statutory power \u201cto set workplace<\/em> safety standards, not broad public health measures.\u201d152<\/a><\/sup>Id.<\/em> at 662\u201363, 665.<\/span><\/p>\n

Although the per curiam opinion did not engage much with post-enactment legislative history,153<\/a><\/sup>See<\/em> id.<\/em> at 666 (mentioning post-enactment legislative history briefly to refute the dissent\u2019s use of it). <\/span> Justice Gorsuch\u2019s concurrence, joined by Justices Thomas and Alito, relied heavily on such evidence to determine\u2014as in Brown & Williamson<\/em>\u2014the merits of whether Congress delegated to OSHA the power to issue a vaccine mandate. Although it would be another five months until a majority of the Court, in West Virginia v. EPA<\/em>, recognized the MQD by name, Justice Gorsuch argued that the rule counted as a major question (citing his own dissent naming the MQD in an earlier case154<\/a><\/sup>Id.<\/em> at 667 (Gorsuch, J., concurring) (citing Gundy v. United States, 139 S. Ct. 2116, 2141 (2019) (Gorsuch, J., dissenting)).<\/span>) because it would \u201cforce 84 million Americans to receive a vaccine or undergo regular testing.\u201d155<\/a><\/sup>Id.<\/em> <\/span> Next, Justice Gorsuch brought in post-enactment legislative history to support his assertion that \u201cCongress has nowhere clearly assigned so much power to OSHA\u201d: \u201cCongress has adopted several major pieces of legislation aimed at combating COVID-19. But Congress has chosen not to afford OSHA\u2014or any federal agency\u2014the authority to issue a vaccine mandate. Indeed, a majority of the Senate even voted to disapprove<\/em> OSHA\u2019s regulation.\u201d156<\/a><\/sup>Nat\u2019l Fed\u2019n of Indep. Bus.<\/em>, 142 S. Ct. at 667\u201368 (citation omitted) (citing American Rescue Plan Act of 2021, Pub. L. No. 117-2, 135 Stat. 4; S.J. Res. 29, 117th Cong. (2021)).<\/span> His concurrence went even further than Brown & Williamson<\/em> in leaning on this evidence: Brown & Williamson<\/em> led with an argument about the statute\u2019s text and structure,157<\/a><\/sup>See<\/em> FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133\u201343 (2000).<\/span> introducing the post-enactment legislative history only after first addressing the statute itself.158<\/a><\/sup>See id.<\/em> at 143\u201359.<\/span> But Justice Gorsuch\u2019s concurrence appeared comfortable relying on post-enactment legislative history alone<\/em>, only analyzing the text of OSHA\u2019s claimed statutory authority in the context of rebutting \u201cOSHA\u2019s reply\u201d to the otherwise conclusive argument that \u201cOSHA\u2019s mandate fails [the MQD\u2019s] test.\u201d159<\/a><\/sup>Nat\u2019l Fed\u2019n of Indep. Bus.<\/em>, 142 S. Ct. at 667\u201368. Perhaps Justice Gorsuch focused less on the text because he felt the majority had already sufficiently addressed it.<\/span><\/p>\n

3. West Virginia v. EPA: Separating \u201cMajorness\u201d and Merits<\/em><\/strong><\/p>\n

The Court again relied on post-enactment legislative history in West Virginia v. EPA<\/em>,160<\/a><\/sup>142 S. Ct. 2587 (2022).<\/span> the first case to explicitly name the MQD161<\/a><\/sup>See<\/em> id.<\/em> at 2634 (Kagan, J., dissenting).<\/span> and (equivocally) explain its theoretical basis: \u201cboth separation of powers principles and a practical understanding of legislative intent.\u201d162<\/a><\/sup>Id.<\/em> at 2609 (majority).<\/span> The Court held that the Environmental Protection Agency (\u201cEPA\u201d) during the first Trump Administration correctly concluded in rescinding an Obama-era EPA rule that the EPA could not seek to restructure the country\u2019s overall mix of electricity generation using its narrower Clean Air Act163<\/a><\/sup>42 U.S.C. \u00a7\u00a7 7401\u20137671q.<\/span> authority to set topline limits on emissions by new sources of pollution.164<\/a><\/sup>See West Virginia<\/em>, 142 S. Ct. at 2602, 2604\u201307 (citing 42 U.S.C. \u00a77411(a)(1)).<\/span><\/p>\n

West Virginia<\/em> was also the first case to frame its use of post-enactment legislative history as answering the preliminary question of whether the MQD applies to the claimed statutory authority, rather than whether the statute in fact authorized the regulation. The Court relied on two sources of post-enactment legislative history: the inconsistency between the EPA\u2019s traditional use of its Clean Air Act authority and the use now asserted, and Congress\u2019s consideration and rejection of various schemes similar to the one the EPA promulgated.165<\/a><\/sup>See id.<\/em> at 2610, 2614.<\/span> Chief Justice Roberts\u2019s majority opinion implied that such evidence only went to the majorness question by separating the majorness and merits inquiries into two different subsections and mentioning post-enactment legislative history only in the former. But Justice Gorsuch\u2019s concurrence made the argument explicit: to Justice Kagan\u2019s reminder in dissent that \u201cnormal principles of statutory construction\u201d instruct the Court to \u201cignore\u201d post-enactment legislative history,166<\/a><\/sup>See id.<\/em> at 2641 (Kagan, J., dissenting) (citing Bostock v. Clayton County, 140 S. Ct. 1731, 1747 (2020) (Gorsuch, J.); Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J., concurring in part)).<\/span> Justice Gorsuch responded that \u201cthe Court has not pointed to failed legislation to resolve what a duly enacted statutory text means, only to help resolve the antecedent question whether the agency\u2019s challenged action implicates a major question.\u201d167<\/a><\/sup>Id.<\/em> at 2621 n.4 (Gorsuch, J., concurring).<\/span><\/p>\n

Despite Justice Gorsuch\u2019s protest, Chief Justice Roberts\u2019s framing of that \u201cantecedent question\u201d still seemed focused on the enacting Congress\u2019s intent, thus re-raising the question of how post-enactment legislative history can speak to original intent: when an agency\u2019s \u201cdiscovery [of newfound power] allow[s] it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself, . . . there is every reason to \u2018hesitate before concluding that Congress\u2019 meant to confer on [the agency] the authority it claims under [the relevant statute].\u201d168<\/a><\/sup>Id.<\/em> at 2610 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159\u201360 (2000)).<\/span> Chief Justice Roberts\u2019s interest in the scope of power Congress meant<\/em> to delegate indicates that whether an act is major or not turns, to some extent, on what Congress considers<\/em> major.<\/p>\n

4. Biden v. Nebraska: Betraying the Majorness\/Merits Divide.<\/em><\/strong><\/p>\n

Regardless of the believability of Justice Gorsuch\u2019s cautionary note in West Virginia<\/em>, the Court\u2019s very next MQD case failed to clearly distinguish between using post-enactment legislative history for majorness versus merits. In Biden v.<\/em> Nebraska<\/em>, the Court held that the Higher Education Relief Opportunities for Students Act of 2003169<\/a><\/sup>Pub. L. No. 108-76, 117 Stat. 904.<\/span> (\u201cHEROES Act\u201d), which authorizes the Secretary of Education to \u201cwaive or modify any statutory or regulatory provision applicable to . . . student financial assistance programs,\u201d170<\/a><\/sup>20 U.S.C. \u00a7 1098bb(a)(1).<\/span> did not permit the Secretary to completely cancel around $430 billion of student debt to provide relief during the COVID-19 pandemic.171<\/a><\/sup>Nebraska<\/em>, 143 S. Ct. at 2362.<\/span> Chief Justice Roberts\u2019s majority opinion rested on two arguments: first, that the plain text of the HEROES Act did not support the Secretary\u2019s claimed authority, and second, that the Secretary could not use the Act to answer the major question of student debt forgiveness.172<\/a><\/sup>Id.<\/em> at 2368, 2372.<\/span><\/p>\n

In its MQD analysis, the Court eschewed the clean separation between the antecedent and merits inquiries from West Virginia<\/em>. Instead, the majority spent several pages purportedly just establishing the question\u2019s majorness,173<\/a><\/sup>See id.<\/em> at 2372\u201375.<\/span> followed by one paragraph on the merits:<\/p>\n

All this leads us to conclude [that this is a major question]. In such circumstances, we have required . . . \u201cclear congressional authorization\u201d . . . . And as we have already shown, the HEROES Act provides no authorization for the Secretary\u2019s plan even when examined using the ordinary tools of statutory interpretation.174<\/a><\/sup>Id.<\/em> at 2375 (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)) (citations omitted).<\/span><\/p>\n

Nebraska <\/em>thus seems to indicate that most of the MQD\u2019s work is being done by the question Justice Gorsuch described as merely \u201cantecedent.\u201d And insofar as the Court incorporates by reference the evidence from the antecedent \u201cmajorness\u201d question into the merits question (\u201cas we have already shown\u201d), post-enactment legislative history that the Court uses to determine majorness also goes to the merits, despite Justice Gorsuch\u2019s claim to the contrary.<\/p>\n

Moreover, while notionally focused on majorness, the majority opinion\u2019s several pages of analysis still sounded in congressional intent. The Court argued that the debt cancellation program \u201cassert[ed] . . . administrative authority . . . that Congress has chosen not to enact itself,\u201d pointing to over eighty pieces of student loan-related legislation considered in the 116th Congress (which covered the first year of COVID-19), as well as two resolutions calling on the executive branch to cancel student debt that both \u201cfailed to reach a vote.\u201d175<\/a><\/sup>Id.<\/em> at 2373 & n.8.<\/span> The Court argued that those modern-day \u201csharp debates\u201d showed that the enacting Congress would not answer \u201cyes\u201d if asked whether the Secretary could cancel $430 billion in student loans using his HEROES Act authority\u2014\u201cCongress did not unanimously pass the HEROES Act with such power in mind.\u201d176<\/a><\/sup>Id.<\/em> at 2374. <\/span> The Court capped its argument by quoting then-Speaker of the House Nancy Pelosi\u2019s comment at a press conference that the President does not have authority to forgive student debt.177<\/a><\/sup>Nebraska<\/em>, 143 S. Ct. at 2374 (quoting Press Conference, Office of the Speaker of the House (July 28, 2021)).<\/span> That the Court would rely on a statement made not on the floor of the House, nearly two decades after the bill\u2019s passage, by a Representative who did not sponsor the bill178<\/a><\/sup>See<\/em> Cosponsors: H.R.1412 \u2014 108th Congress (2003-2004)<\/em>, CONGRESS.GOV, https:\/\/www.congress.gov\/bill\/108th-congress\/house-bill\/1412\/cosponsors [https:\/\/perma.cc\/8MFE-ZEV9].<\/span> is surprising given the Court\u2019s traditional aversion to post-enactment statements by individual legislators even when published in the Congressional Record, made shortly after enactment, by the bill\u2019s sponsor.179<\/a><\/sup>See, e.g.<\/em>, Heintz v. Jenkins, 514 U.S. 291, 298 (1995).<\/span> Quoting Speaker Pelosi\u2019s statement did not meaningfully advance the Court\u2019s argument that the question was a politically divisive one, nor even the Court\u2019s understanding of the enacting Congress\u2019s intent. And whether the 116th Congress succeeded or failed to pass resolutions asking the executive for debt relief could not have influenced the 108th Congress\u2019s ex ante answer to whether the HEROES Act granted such power.<\/p>\n

Justice Barrett concurred, arguing that the MQD and its reliance on post-enactment legislative history are consistent with textualism.180<\/a><\/sup>See Nebraska<\/em>, 143 S. Ct. at 2376 (Barrett, J., concurring).<\/span> By forthrightly defending post-enactment legislative history, Justice Barrett\u2019s approach seemed to clash with Justice Gorsuch\u2019s attempts to cabin that evidence to only the \u201cmajorness\u201d question. Justice Barrett premised her opinion on faithful agent textualism (even citing the Third Restatement of the Law of Agency), arguing that truly faithful agents will consider the \u201ccontext<\/em> in which the principal and agent interact\u201d alongside the plain text.181<\/a><\/sup>Id.<\/em> at 2378\u201379 (citing RESTATEMENT (THIRD) OF AGENCY \u00a7 2.02(1) (A.L.I. 2005)).<\/span> But rather than repudiate Brown & Williamson<\/em>\u2019s reliance on post-enactment legislative history, or narrow it as Justice Gorsuch did, Justice Barrett argued that such evidence went to \u201ccontext\u201d: \u201cthe FDA\u2019s longstanding disavowal of authority to regulate [tobacco and] Congress\u2019s creation of \u2018a distinct regulatory scheme for tobacco products\u2019\u201d proved that \u201cCongress could not have intended<\/em> to delegate\u201d authority over tobacco.182<\/a><\/sup>Id.<\/em> at 2382 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159\u201360 (2000)) (emphasis added).<\/span> Justice Barrett acknowledged that \u201c[o]f course, an agency\u2019s post-enactment conduct does not control the meaning of a statute,\u201d but reasoned that such evidence could be \u201cprobative\u201d because \u201c[a] longstanding \u2018want of assertion of power by those who presumably would be alert to exercise it\u2019 may provide some clue that the power was never conferred.\u201d183<\/a><\/sup>Id.<\/em> at 2383 (citing FTC v. Bunte Bros., Inc., 312 U.S. 349, 352 (1941)).<\/span> She also cited Skidmore<\/em> for the proposition that the consistency of an interpretation bears on its persuasiveness.184<\/a><\/sup>Id.<\/em> (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). <\/span><\/p>\n

Recast in the terms of original meaning textualism, Justice Barrett\u2019s argument might go something like the following: Skidmore<\/em> (as incorporated into Loper Bright<\/em>) provides that an interpretation an agency issued \u201ccontemporaneously with enactment of the statute [that] remained consistent over time\u201d could speak to a statute\u2019s original meaning given that those promulgating the interpretation often worked with Congress to draft the statute.185<\/a><\/sup>Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2258 (2024).<\/span> In this context, the agency\u2019s contemporaneous decision to not <\/em>exercise a certain power could similarly speak to how those who framed a statute understood its meaning.<\/p>\n

This Note leaves a full treatment of post-enactment executive <\/em>(rather than legislative) liquidation of statutory meaning to Professor Daniel Deacon\u2019s recent work.186<\/a><\/sup>See supra <\/em>notes 6\u20139 and accompanying text.<\/span> One additional response here, however: Justice Barrett\u2019s view relies on both a particular set of factual circumstances that is never discussed in the MQD cases (the agency\u2019s involvement in statutory drafting) and a view of legislative action that seems at odds with the otherwise formalist separation of powers view endorsed by the MQD (legislative action puppeteered by executive drafters). Justice Barrett\u2019s approach is also subject to the same critique that dogged post-enactment legislative history: just like congressional silence, executive silence is subject to multiple permissible inferences.187<\/a><\/sup>See supra<\/em> note 108 and accompanying text.<\/span> Although the executive branch declining to exercise a certain power in the early years of a statute could mean \u201cthat the power was never conferred,\u201d it could also mean that the executive saw no need to exercise power at that time. In Nebraska<\/em>, for instance, the predicate for issuing nationwide debt relief was the nationwide COVID-19 emergency, under which the government \u201cdeclared every State, the District of Columbia, and all five permanently populated United States territories to be disaster areas.\u201d188<\/a><\/sup>See <\/em>Federal Student Aid Programs (Federal Perkins Loan Program, Federal Family Education Loan Program, and William D. Ford Federal Direct Loan Program), 87 Fed. Reg. 61512, 61513 (Oct. 12, 2022).<\/span> Never before (and relevantly, never since the enactment of the HEROES Act) had the federal government designated the entire country as a disaster area189<\/a><\/sup>Justine Coleman, All 50 States Under Disaster Declaration for First Time in US History<\/em>, THE HILL (Apr. 12, 2020, at 16:31 ET), https:\/\/thehill.com\/policy\/healthcare\/public-global-health\/492433-all-50-states-under-disaster-declaration-for-first\/ [https:\/\/perma.cc\/U6YR-G5LN].<\/span>\u2014in such circumstances, the executive might understandably assert \u201cnever previously claimed powers of this magnitude.\u201d190<\/a><\/sup>Nebraska<\/em>, 143 S. Ct. at 2372 (majority).<\/span><\/p>\n

IV. CONGRESSIONAL CONTROL OF LAWMAKING<\/strong><\/h4>\n

The MQD\u2019s narrow acceptance of post-enactment legislative history does not, in fact, reinvigorate Congress. The doctrine\u2019s choice to credit subtle congressional signaling accords with the views of some political scientists, who theorize that doing so would help courts avoid embarrassment and better track democratic will. But the MQD\u2019s use of post-enactment legislative history operates less as a genuine empowerment of Congress than as a one-way anti-executive ratchet\u2014one that may chill productive legislative action while encouraging unilateral presidential action.<\/p>\n

A. Post-Enactment Legislative History\u2019s Potential to Reinvigorate Congress<\/em><\/strong><\/p>\n

Both the pre-Scalia post-enactment legislative history cases and the modern MQD cases at least implicitly endorse sub-bicameral congressional signaling. Even accepting arguendo <\/em>Justice Gorsuch\u2019s footnote that such evidence is merely probative of majorness, that use still implicates Congress wielding legislative power via sub-bicameralism: why are a subsequent Congress\u2019s views especially relevant to what makes a certain exercise of authority major, as opposed to other social or economic indicators of majorness to which the Court also turns?191<\/a><\/sup>See<\/em> Ala. Ass\u2019n. of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021) (pointing to numerical indicators of majorness\u2014including number of people impacted and federal funds spent\u2014as well as the regulation\u2019s \u201cintru[sion] into an area that is the particular domain of state law\u201d).<\/span> Under Justice Barrett\u2019s view of the MQD as a form of regular statutory interpretation, whether an issue is of \u201cvast \u2018economic and political significance\u2019\u201d such that the Court should \u201cexpect Congress to speak clearly\u201d before delegating such issues to the executive branch should be determined, it seems, by what the enacting Congress considered to be significant.192<\/a><\/sup>Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)).<\/span> One would not \u201cexpect\u201d a Congress to explicitly delegate a power that it does not consider significant enough to explicitly delegate. For instance, as Justice Kavanaugh argued in dissent in Learning Resources<\/em>, it should be sufficient to defeat the MQD if the enacting<\/em> Congress did not consider the use of delegated authority to make across-the-board tariffs to be significant enough to demand more precise language than already existed.193<\/a><\/sup>See<\/em> Learning Res., Inc. v. Trump, 146 S. Ct. 628, 690 (2026) (Kavanaugh, J., dissenting).<\/span> Turning to evidence other than the evidence of the enacting Congress would thus appear to provide that Congress and its members can take actions to change the law without going through bicameralism and presentment.<\/p>\n

At first blush, that endorsement would appear to empower<\/em> Congress in the separation of powers vis-\u00e0-vis the executive\u2014particularly because it appears to grant Congress the authority to overturn the status quo. Pre-Scalia purposivists mainly employed post-enactment legislative history to affirm the status quo, whether the existing administrative194<\/a><\/sup>See, e.g.<\/em>, Zemel v. Rusk, 381 U.S. 1, 12 (1965) (acquiescence to the Secretary of State\u2019s interpretation of a statute).<\/span> or judicial195<\/a><\/sup>See, e.g.<\/em>, Flood v. Kuhn, 407 U.S. 258, 283 (1972) (acquiescence to an earlier Supreme Court interpretation of a statute).<\/span> interpretation. In contrast, MQD cases use post-enactment legislative history to negate the status quo executive interpretation.<\/p>\n

More generally, permitting Congress to exercise legal power without going through bicameralism and presentment\u2014whether in the MQD or outside the MQD\u2014could have democratic benefits. Some public choice theorists argue that it could, among other benefits: improve judicial legitimacy by allowing courts to heed democratically legitimate signals and avoid embarrassing legislative overrulings; allow legislators to save political capital for big-ticket policy goals, using cheaper speech to signal when the courts should make minor fixes that would otherwise require formal adoption;196<\/a><\/sup>See, e.g.<\/em>, King v. Burwell, 576 U.S. 473 (2015); Abbe R. Gluck, Comment, Imperfect Statutes, Imperfect Courts: Understanding Congress\u2019s Plan in the Era of Unorthodox Lawmaking<\/em>, 129 HARV. L. REV. 62, 62\u201364, 100 (2015) (suggesting that King<\/em> may have been a pragmatic opinion focused on helping Congress function by fixing its errors).<\/span> and lower the ex ante transaction costs of legislating by permitting the drafting legislators to trust that later legislators can use low-cost signaling to fix any unforeseen problems.197<\/a><\/sup>See, e.g.<\/em>, Edward P. Schwartz, Pablo T. Spiller & Santiago Urbiztondo, A Positive Theory of Legislative Intent<\/em>, 57 LAW & CONTEMP. PROBS. 51, 71\u201374 (1994). But see <\/em>Kenneth A. Shepsle, Congress Is a \u201cThey,\u201d Not an \u201cIt\u201d: Legislative Intent as Oxymoron<\/em>, 12 INT\u2019L REV. L. & ECON. 239, 254 (1992) (arguing that public choice theory demonstrates that legislative intent is \u201cmeaningless[]\u201d because while \u201c[i]ndividuals have intentions and purpose and motives; collections of individuals do not\u201d). See generally <\/em>William N. Eskridge, Jr., Post-Enactment Legislative Signals<\/em>, 57 LAW & CONTEMP. PROBS. 75 (1994) (applying these arguments to the practice of the Burger and Rehnquist Courts, and finding that while the Burger Court acted like these political scientists would assume, the Rehnquist Court did not). But see <\/em>James J. Brudney & Ethan J. Leib, Statutory Interpretation as \u201cInterbranch Dialogue\u201d?<\/em>, 66 UCLA L. REV. 346, 379\u201380 (2019) (laying out a model of interbranch dialogue that is suspicious of sub-bicameral signaling).<\/span><\/p>\n

Consider, for instance, Tennessee Valley Authority v. Hill<\/em>, which demonstrated the peril of ignoring congressional signaling.198<\/a><\/sup>437 U.S. 153 (1978).<\/span> Despite Congress sending the message via the relatively inexpensive (but still democratically legitimate) means of appropriations legislation that it preferred a challenged dam project to move forward despite the risk to an endangered fish, the Supreme Court blocked the project after concluding that the appropriations bill did not supersede the Endangered Species Act (ESA).199<\/a><\/sup>See id.<\/em> at 189\u201390.<\/span> Following the Court\u2019s ruling, Congress not only amended the ESA to provide additional flexibility in similar situations, but also pushed the dam project forward by explicitly exempting it from the ESA.200<\/a><\/sup>See<\/em> Telling the Story of Tellico: It\u2019s Complicated<\/em>, TENN. VALLEY AUTH., https:\/\/www.tva.com\/about-tva\/our-history\/built-for-the-people\/telling-the-story-of-tellico-it-s-complicated [https:\/\/perma.cc\/87VC-A29P].<\/span> Forcing such overrides not only costs Congress (and here, the Tennessee Valley Authority) time and resources, but also imposes institutional legitimacy costs on the Court. In line with the reigning rejection of the use of post-enactment statutory interpretation, however, a 2002 review of the empirical literature concluded that there is no support for the theory that the Supreme Court seeks to anticipate congressional preferences in order to avoid being overturned.201<\/a><\/sup>JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 326\u201327, 349 (2002).<\/span><\/p>\n

Post-enactment legislative history could be especially useful for checking the judiciary\u2019s implementation of \u201ccommon law\u201d statutes, as in Blue Chip<\/em>. Common law statutes\u2014like those governing economic competition and securities trading\u2014often regulate complex areas of the economy where sophisticated actors could find workarounds to detailed and rigid legislative schemes. So common law statutes instead employ \u201cbrief and imprecise\u201d language to allow courts to police the boundaries of bad behavior case-by-case\u2014such an approach is \u201csuitable for a vast and ever-changing array of conduct and circumstances, the effects of which might be discernible only after extensive, detailed, and case-specific factual inquiry.\u201d202<\/a><\/sup>Michael L. Katz & A. Douglas Melamed, Competition Law as Common Law: <\/em>American Express and the Evolution of Antitrust<\/em>, 168 U. PA. L. REV. 2061, 2062 & n.2 (2020).<\/span> Congress cannot be expected to amend these common law statutes as frequently as it would others, for fear of replacing simple language barring \u201crestraint of trade\u201d203<\/a><\/sup>15 U.S.C. \u00a7 1.<\/span> or \u201cmonopoliz[ation]\u201d204<\/a><\/sup>Id.<\/em> \u00a7 2.<\/span> with something more complex and thus easier to exploit. Considering post-enactment legislative history in this context instead enables Congress to exercise oversight of the judiciary\u2019s implementation of these statutes without over-specifying the black-letter law. Just as executive agencies that implement statutes care about what congressional committees or even individual members of Congress think about their implementation, so too could the judiciary when it is entrusted with carrying out a statute.<\/p>\n

Some on the Court might celebrate the opportunity to reinvigorate congressional power by more closely aligning the Court\u2019s decisions with what the modern Congress wants. Though scholars disagree on why<\/em> the modern Congress is ineffective, they largely agree on the modern fact of congressional impotence as a lawmaking institution.205<\/a><\/sup>See<\/em> Sarah Binder, The Dysfunctional Congress<\/em>, 18 ANN. REV. POL. SCI. 85, 86 (2015). <\/span> Neomi Rao, then writing as a scholar and now serving as an influential conservative jurist, argued in 2015 that congressional gridlock has incentivized Congress to delegate authority to the executive given Congress\u2019s inability to wield its own authority, and that courts ought to respond by reinvigorating the doctrine barring such expansive delegations to force Congress back into action.206<\/a><\/sup>See<\/em> Neomi Rao, Administrative Collusion<\/em>, 90 N.Y.U. L. REV. 1463, 1488, 1509\u201311 (2015).<\/span> Some Justices, Justice Gorsuch in particular, have endorsed similar reasoning in recent nondelegation and MQD cases.207<\/a><\/sup>See, e.g.<\/em>, Gundy v. United States, 139 S. Ct. 2116, 2134\u201335 (2019) (Gorsuch, J., joined by Roberts, C.J., and Thomas, J., dissenting) (permitting \u201cCongress [to] pass off its legislative power\u201d would undermine \u201c[a]ccountability\u201d and \u201cdeliberation\u201d by diverse interests); West Virginia v. EPA, 142 S. Ct. 2587, 2618 (2022) (Gorsuch, J., joined by Alito, J., concurring) (similar). See also <\/em>Daniel Farber, The Major Question Doctrine, Nondelegation, and Presidential Power<\/em>, YALE J. ON REGUL.: NOTICE & COMMENT (Nov. 2, 2022), https:\/\/www.yalejreg.com\/nc\/synposium-shane-democracy-chief-executive-07\/ [https:\/\/perma.cc\/5ZFK-X46A] (The MQD is \u201cnot so much . . . a way of preventing Congress from giving away too much power as a way to prevent Presidents from snatching powers they were not given.\u201d).<\/span> In Learning Resources, Inc. v. Trump<\/em>, for instance,208<\/a><\/sup>146 S. Ct. 628 (2026).<\/span> Justice Gorsuch described the MQD as \u201cpro-Congress\u201d209<\/a><\/sup>Id.<\/em> at 654 (Gorsuch, J., concurring).<\/span> and chided those trying \u201cto impose more tariffs\u201d for attempting to \u201cbypass Congress,\u201d210<\/a><\/sup>Id.<\/em> at 671\u201372.<\/span> thus pushing Congress to do its job.211<\/a><\/sup>Catie Edmondson, In Gorsuch\u2019s Homage to Legislative Power, a Subtle Reproach of a Neutered Congress<\/em>, N.Y. TIMES (Feb. 21, 2026) https:\/\/www.nytimes.com\/2026\/02\/21\/us\/politics\/gorsuch-congress-trump-tariffs.html [https:\/\/perma.cc\/MA3T-3JAH] (Justice \u201cGorsuch made a forceful case for the sanctity of the legislative process\u2014and an implicit critique of its current dysfunction.\u201d).<\/span> Justice Thomas embraced similar logic in Loper Bright Enterprises v. Raimondo<\/em>,212<\/a><\/sup>144 S. Ct. 2244 (2024).<\/span> hoping that the decision to overturn Chevron<\/em>\u2019s regime of judicial deference to executive interpretations would protect Congress\u2019s \u201clegislative power\u201d from seizure by the executive branch.213<\/a><\/sup>Id.<\/em> at 2275 (Thomas, J., concurring).<\/span><\/p>\n

B. The Reality of the MQD\u2019s Institutional Incentives<\/em><\/strong><\/p>\n

But the MQD\u2019s resort to post-enactment legislative history does not, in fact, empower Congress as against the executive. Instead, it is more a trap for unwary legislators than a tool to be wielded by Congress.<\/p>\n

First, although MQD cases do change the status quo, they do so more at the Court\u2019s behest than at Congress\u2019s. The 20th century approach reflected judicial modesty both in deferring to the executive and in leaving judicial precedent in place.214<\/a><\/sup>See <\/em>RICHARD A. POSNER, LAW AND LEGAL THEORY IN THE UK AND THE USA 90 (1996) (describing stare decisis as a doctrine of modesty).<\/span> By using similar (weak) sources of evidence to overturn the actions of a coordinate branch, rather than merely leave them in place, the MQD instead reflects judicial hubris.215<\/a><\/sup>Daniel E. Walters, The Major Questions Doctrine at the Boundaries of Interpretive Law<\/em>, 109 IOWA L. REV. 465, 492 (\u201c[T]he major questions doctrine runs substantial risks of a systemic judicial takeover of the legislative power that goes well beyond the bounds of the judicial power.\u201d); Jody Freeman & Matthew C. Stephenson, The Anti-Democratic Major Questions Doctrine<\/em>, 2022 SUP. CT. REV. 1, 21 (2023) (\u201c[T]he MQD shifts substantial policy discretion to unelected federal judges.\u201d).<\/span> That the MQD is based more on the modern Court\u2019s view of a challenged presidential action, rather than the modern Congress\u2019s view, is made clear in MQD cases relying on congressional action post-enactment but pre-presidential action216<\/a><\/sup>See<\/em> FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143 (2000); West Virginia v. EPA, 142 S. Ct. 2587, 2614 (2022).<\/span>\u2014i.e., evidence that could speak to neither what the statutory drafters thought nor what the Congress responding to this particular action thought.<\/p>\n

Second, the use of post-enactment legislative history cabined largely to the MQD can restrict the executive but cannot make new law. That is precisely the MQD\u2019s goal for those like Justice Gorsuch, who want to recenter lawmaking in Congress not because they want more legislating, but instead because they want less.217<\/a><\/sup>Justice Gorsuch has separately laid out his view that there is simply \u201ctoo much law.\u201d See generally <\/em>NEIL GORSUCH & JANIE NITZE, OVER RULED: THE HUMAN TOLL OF TOO MUCH LAW (2024).<\/span> As Justice Gorsuch has argued, the Constitution intentionally makes legislating slow and arduous in order to mitigate the \u201cthreat to individual liberty\u201d posed by heavy-handed lawmaking; the MQD is meant to enforce that constitutional design.218<\/a><\/sup>West Virginia<\/em>, 142 S. Ct. at 2618\u201319 (Gorsuch, J., concurring).<\/span> But some scholars think that sub-bicameral congressional control of the executive is normatively desirable not because it means there will always be less <\/em>law, but instead because it means that there will be more democratically responsive law219<\/a><\/sup>Note, Separating the Powers in the Administrative State: Article I<\/em>, 139 HARV. L. REV. 1139 (2026) (Proposing a novel model of \u201cArticle I agencies\u201d that could \u201cpass rules pursuant to statutory delegations without bicameralism and presentment,\u201d id.<\/em> at 1147, in order to \u201creinvigorate[]\u201d Congress. Id.<\/em> at 1159. \u201cCongressional elections might once again become independently important rather than mere referenda on the President. Thus, to the extent one\u2019s democratic sympathies lie with Congress, sending power back to Congress in this way would be a functional upgrade.\u201d Id.<\/em> (footnote omitted)).<\/span> or that the judicial understanding of Congress will more closely match the reality of how Congress acts.220<\/a><\/sup>See <\/em>Bradley & Morrison, supra<\/em> note 117, at 451 (\u201cExpanding the [Youngstown<\/em>] inquiry to include a wider array of congressional responses to executive action will substantially shrink the universe of cases where Congress can truly be said to have remained silent, which will in turn shrink the number of cases drawing inferences from such silence. That is all to the good . . . . [A]ssigning interpretive consequences to congressional silence or inaction is perilous at best. . . . [C]ourts and other interpreters should strongly prefer affirmative evidence of that understanding, [even if sub-bicameral evidence], not just silence.\u201d).<\/span> As in Youngstown <\/em>cases where the Court saw in post-enactment history either implicit congressional approval of executive action or silence as acquiescence,221<\/a><\/sup>See, e.g.<\/em>, Dames & Moore v. Regan, 453 U.S. 654, 678 (1981).<\/span> this could sometimes mean there is more<\/em> law. Deeming post-enactment history legally effective only when it serves to reject executive power thus implicitly embraces a libertarian \u201cminimal-state philosophy that appears nowhere in the Constitution.\u201d222<\/a><\/sup>Andrew Koppelman, The Mystery of Neil Gorsuch<\/em>, L.A. REV. BOOKS (Mar. 19, 2025) (reviewing GORSUCH & NITZE, supra<\/em> note 217), https:\/\/lareviewofbooks.org\/article\/the-mystery-of-neil-gorsuch [https:\/\/perma.cc\/NEQ8-NCPX]. See also<\/em> David G. Savage, On an Often Unpredictable Supreme Court, Justice Gorsuch Is the Latest Wild Card<\/em>, L.A. TIMES (July 12, 2019, at 04:00 PT), https:\/\/www.latimes.com\/politics\/la-na-pol-gorsuch-supreme-court-conservative-20190712-story.html [https:\/\/perma.cc\/7AGS-GDQV] (describing Justice Gorsuch as a libertarian).<\/span> Yes, the Constitution embraces bicameralism and presentment. But there is no principled reason to allow Congress to skip bicameralism when it wants the President to do less, but not when it wants the President to do more.<\/p>\n

And third, the MQD\u2019s use of post-enactment legislative history may be counterproductive even for Justice Gorsuch, as it disincentivizes constructive legislative deliberation by raising the cost of political discourse. Consider West Virginia<\/em>, which relied on rejected legislative proposals in determining that the executive did not have the authority that had been proposed and rejected. That judicial signal tells legislators to be wary of such proposals in the future unless they are certain they will be enacted, for fear that proposing that power will conversely mean stripping the President of it. This is primarily a problem for unified governments, where a congressional majority has a chance, but not a certain one, of passing legislation. In that setting, consideration of failed legislative efforts will in particular discourage two policy tools: first, as Professors Freeman and Stephenson have argued,223<\/a><\/sup>See<\/em> Freeman & Stephenson, supra<\/em> note 215, at 43.<\/span> it will discourage the President from asking Congress for authority to act, in favor of acting unilaterally in the first instance. Second, it will raise the cost of so-called \u201cmessaging bills.\u201d<\/p>\n

1. The President: Avoiding Congressional Ratification<\/em><\/strong><\/p>\n

Headline policies in the Obama, Trump I, and Biden Administrations went through similar policymaking cycles: the President first went to Congress to try to achieve his policy goal, and when Congress was too gridlocked (often stymied by the filibuster) to produce results, the President took unilateral action. That approach was typified by President Obama\u2019s statement during a speech in 2011: \u201cWhere they won\u2019t act, I will.\u201d224<\/a><\/sup>President Barack Obama, Remarks in Las Vegas: We Can\u2019t Wait (Oct. 24, 2011), https:\/\/www.presidency.ucsb.edu\/documents\/remarks-las-vegas [https:\/\/perma.cc\/47C7-DNNU].<\/span> With a job bill aimed at staving off recession stuck in Congress, President Obama used the speech to kick off a series of executive actions that would provide economic relief.225<\/a><\/sup>Jackie Calmes, Jobs Plan Stalled, Obama to Try New Economic Drive<\/em>, N.Y. TIMES (Oct. 23, 2011), https:\/\/www.nytimes.com\/2011\/10\/24\/us\/politics\/jobs-plan-stalled-obama-to-try-new-economic-drive.html [https:\/\/perma.cc\/F26N-QYXN].<\/span> President Obama took a similar approach to immigration reform\u2014providing protection for \u201cDreamers\u201d after Congress refused to pass the DREAM Act.226<\/a><\/sup>Barack Obama, President, United States of America, Remarks by the President on Immigration (June 15, 2012), https:\/\/obamawhitehouse.archives.gov\/the-press-office\/2012\/06\/15\/remarks-president-immigration [https:\/\/perma.cc\/D9PL-NUR3] (\u201cThis morning, Secretary Napolitano announced new actions my administration will take to mend our nation\u2019s immigration policy . . . . I have said time and time and time again to Congress that, send me the DREAM Act, put it on my desk, and I will sign it right away. . . . [A] year and a half ago, Democrats passed the DREAM Act in the House, but Republicans walked away from it. . . . It\u2019s still the right thing to do.\u201d).<\/span> Same for both President Trump and President Biden: in his first term, President Trump took executive action to redirect funds to building a border wall after Congress refused to provide the level of appropriations he requested.227<\/a><\/sup>Jeff Mason & Roberta Rampton, Trump Vetoes Measure to End His Emergency Declaration on Border Wall<\/em>, REUTERS (Mar. 15, 2019, at 19:00 ET), https:\/\/www.reuters.com\/article\/world\/trump-vetoes-measure-to-end-his-emergency-declaration-on-border-wall-idUSKCN1QW29O\/ [https:\/\/perma.cc\/9PM8-LKC6].<\/span> And President Biden did the same for both the COVID-19 eviction moratorium228<\/a><\/sup>David Shepardson, CDC Rebuffs Biden Bid to Reinstate COVID-19 Eviction Moratorium<\/em>, REUTERS (Aug. 2, 2021, at 19:02 ET), https:\/\/www.reuters.com\/world\/us\/pelosi-urges-white-house-reinstate-expired-covid-19-eviction-moratorium-2021-08-02\/ [https:\/\/perma.cc\/P5X7-A4XE].<\/span> and his clean energy agenda229<\/a><\/sup>Kelsey Tamborrino, Biden Unveils New Wind Power Push as Congress Stalls on His Clean Energy Agenda<\/em>, POLITICO PRO (Jan. 12, 2022, at 10:31 ET), https:\/\/subscriber.politicopro.com\/article\/2022\/01\/biden-unveils-new-wind-power-push-as-congress-stalls-on-his-clean-energy-agenda-2102227 [https:\/\/perma.cc\/YGD8-6W26].<\/span> when they stalled in Congress.<\/p>\n

But that strategy of starting with Congress, and working unilaterally only if the President cannot get congressional approval, is made riskier now that Congress\u2019s decision to turn down that power could be evidence that the President does not have it. Nebraska<\/em>\u2019s citation to Speaker Pelosi\u2019s press conference is a useful example: when Speaker Pelosi said she did not believe President Biden could unilaterally cancel student debt, Democrats controlled both the House and Senate. At that press conference, Speaker Pelosi raised the prospect of congressional action to cancel student debt, and discussed the policy considerations that would go into that decision.230<\/a><\/sup>Press Conference, Office of the Speaker of the House (July 28, 2021), https:\/\/pelosi.house.gov\/news\/press-releases\/transcript-of-pelosi-weekly-press-conference-today-111 [https:\/\/perma.cc\/7TJ8-RDYP].<\/span> And she praised President Biden\u2019s eventual unilateral action231<\/a><\/sup>Press Release, Office of the Speaker of the House (Aug. 24, 2022), https:\/\/pelosi.house.gov\/news\/press-releases\/pelosi-statement-on-president-biden-s-historic-student-debt-relief [https:\/\/perma.cc\/DV2L-6Q2Z].<\/span> (the legality of which was backed up by a new Office of Legal Counsel opinion232<\/a><\/sup>Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans, 2022 WL 3975075 (O.L.C. Aug. 23, 2022).<\/span> not available when Speaker Pelosi made her initial comments), and decried the Supreme Court blocking that action.233<\/a><\/sup>Press Release, Office of Speaker Emerita Nancy Pelosi (June 30, 2023), https:\/\/pelosi.house.gov\/news\/press-releases\/pelosi-statement-on-supreme-court-decision-on-president-biden-s-student-loan [https:\/\/perma.cc\/32AC-5R3Y].<\/span> Her statement that President Biden did not have that power, then, was potentially part of an intra-party negotiation between executive and congressional authority, with Speaker Pelosi on board for the policy outcome but defending Congress\u2019s institutional role. Her former Chief of Staff once confirmed that Speaker Pelosi \u201cviews herself as a defender of the institution of the House of Representatives.\u201d234<\/a><\/sup>Interview with John Lawrence<\/em>, FRONTLINE: PELOSI\u2019S POWER, https:\/\/www.pbs.org\/wgbh\/frontline\/interview\/john-lawrence\/ [https:\/\/perma.cc\/L3JF-L2AY].<\/span> But by seizing on Speaker Pelosi\u2019s statement, the Court disincentivizes similar statements that would normally be part of the give-and-take of the separation of powers. That back-and-forth will be forced, then, out of the public eye, incentivizing parties to shore up the party line, avoid spats with the executive, and leave action to the President alone.<\/p>\n

That trend may already be emerging during President Trump\u2019s second term, during which the President has preferred to start with executive action, rather than first asking Congress for permission.235<\/a><\/sup>INTERESTING TIMES WITH ROSS DOUTHAT: Trump Is the End of a 100-Year Experiment<\/em>, at 24:24 (Spotify, Apr. 16, 2026) (\u201cWhat makes Trump kind of unique is that Joe Biden actually did <\/em>try to move legislation about student loan debt forgiveness. . . . It failed. Obama tried to move legislation on immigration. It failed. Trump hasn\u2019t even tried. And remember before the election, in fact, he told Republicans not to vote for immigration legislation changes, because one gets the sense he wanted to do government by executive order because this is more fun.\u201d).<\/span> For instance, President Trump proposed a sweeping government restructuring agenda in his first term premised on congressional approval.236<\/a><\/sup>See<\/em> Clare Lombardo & Alexis Arnold, White House Proposes Merging Education and Labor Departments<\/em>, NPR (June 21, 2018, at 15:51 ET), https:\/\/www.npr.org\/sections\/ed\/2018\/06\/21\/622189097\/white-house-proposes-merging-education-and-labor-departments [https:\/\/perma.cc\/DHP7-EQG4].<\/span> That plan proposed, among other changes, merging the Departments of Education and Labor in line with President Trump\u2019s stated interest in closing or substantially shrinking the Department of Education.237<\/a><\/sup>Id.<\/em><\/span> President Trump pursued the same goal unilaterally in his second term, purporting to \u201cclos[e]\u201d the agency via Executive Order and later transferring many of its responsibilities to other agencies like the Department of Labor via interagency agreements.238<\/a><\/sup>See <\/em>Katharine Meyer et al., FAQs: Checking in on the Department of Education<\/em>, BROOKINGS INST. (Feb. 20, 2026), https:\/\/www.brookings.edu\/articles\/faqs-checking-in-on-the-department-of-education\/ [https:\/\/perma.cc\/YX4B-7YQQ].<\/span> Similarly, while President Trump sought congressional authorization for across-the-board tariff power from Congress in his first term,239<\/a><\/sup>See <\/em>Gary Clyde Hufbauer & Eujin Jung, Navarro Asks Congress to Give Trump Absolute Authority over the US Tariff Schedule<\/em>, PETERSON INST. FOR INT\u2019L ECON. (Jan. 18, 2019, at 09:15 ET), https:\/\/www.piie.com\/blogs\/trade-and-investment-policy-watch\/2019\/navarro-asks-congress-give-trump-absolute-authority [https:\/\/perma.cc\/5SGB-4FLZ].<\/span> he relied on existing authority in the International Emergency Economic Powers Act to do much the same in his second. Even after the Supreme Court rejected that initial go-it-alone approach, President Trump responded to questions about whether he would seek congressional approval for his new round of tariffs by stating: \u201cNo, I don\u2019t need to, it\u2019s already been approved.\u201d240<\/a><\/sup>Trevor Hunnicutt & Jarrett Renshaw, Supreme Court Checks Trump\u2019s Expansive View of Executive Power<\/em>, REUTERS (Feb. 20, 2026, at 19:59 ET), https:\/\/www.reuters.com\/legal\/government\/supreme-court-checks-trumps-expansive-view-executive-power-2026-02-21\/ [https:\/\/perma.cc\/3DAX-ZGH3].<\/span> As Professors Freeman and Stephenson stipulated, \u201cit would be better\u2014both as a matter of democratic legitimacy and as a matter of public policy\u2014if major public problems were addressed through legislation than through unilateral agency action.\u201d241<\/a><\/sup>Freeman & Stephenson, supra <\/em>note 215, at 43.<\/span> Between a regime where the executive acts unilaterally only after trying to achieve policy results through Congress, and one where the executive acts unilaterally and ignores Congress altogether, the former at least has the benefit of potential congressional participation in policymaking.<\/p>\n

Some MQD supporters might reason that the consideration of this evidence is precisely aimed at preventing the President from doing unilaterally what could only be done through Congress. Stopping at Congress first is thus evidence that the President could not take this action on his own. But this counter considers the issue at too high a level of generality. The economic relief President Obama could achieve on his own was different from the jobs program he hoped to pass through Congress.242<\/a><\/sup>See<\/em> Calmes, supra <\/em>note 225.<\/span> And President Trump worked through alternative, but existing, statutory mechanisms to reroute already-appropriated funds to the border wall when he failed to get new money.243<\/a><\/sup>Mason & Rampton, supra <\/em>note 227.<\/span> Evidence that the President asked for one specific authority does not necessarily mean that a different authority (even if addressing the same problem) does not exist.<\/p>\n

2. Congress: Avoiding Political Messaging<\/em><\/strong><\/p>\n

One (perhaps, but not certainly) salutary outcome of raising the cost of public statements by Members of Congress is decreasing the use of so-called \u201cmessaging bills.\u201d As Senator Olympia Snowe of Maine explained, much of the legislation introduced in Congress today \u201cis not intended to ever actually pass,\u201d but is instead meant to either present a fa\u00e7ade of productivity to voters, or simply embarrass or pressure the other party.244<\/a><\/sup>Olympia J. Snowe, Essay, The Effect of Modern Partisanship on Legislative Effectiveness in the 112th Congress<\/em>, 50 HARV. J. ON LEGIS. 21, 27 (2013).<\/span> The New York Times<\/em> editorial board has complained that such efforts are a \u201ccolossal waste of time.\u201d245<\/a><\/sup>Editorial, The Bills to Nowhere<\/em>, N.Y. TIMES (June 7, 2012), https:\/\/www.nytimes.com\/2012\/06\/08\/opinion\/the-bills-to-nowhere.html [https:\/\/perma.cc\/JW2Z-SAWV].<\/span> In the face of a Court that will read failed legislation as meaningful, these messaging bills may no longer be cheap political signals\u2014rather, members could become wary of introducing legislation that fails and then later is counted against them. If messaging bills send the false signal to voters that their representative is a productive member, thus perpetuating the tenure of unproductive members, tamping down on that tactic could encourage congressional productivity. One empirical study suggests that voters do reward legislators who advance messaging bills.246<\/a><\/sup>Nicole Huffman, John Kane & David Stack, Worth a Try? The Electoral Consequences of Symbolic Legislation<\/em> (Feb. 3, 2025) (unpublished working paper), https:\/\/preprints.apsanet.org\/engage\/apsa\/article-details\/679daa3ffa469535b9a16b76 [https:\/\/perma.cc\/H5LQ-NPGM].<\/span><\/p>\n

On the other hand, messaging bills may be unfairly maligned. First, messaging bills may enable compromise. As Christian Fong and Nicolas Hernandez Florez argue, party leaders can propose a messaging bill that takes an extreme position, knowing that they will eventually land on a bipartisan compromise.247<\/a><\/sup>Christian Fong & Nicolas Hernandez Florez, Enabling Compromise <\/em>3 (Ctr. for Effective Lawmaking, Working Paper No. 2024-06, 2024), https:\/\/thelawmakers.org\/wp-content\/uploads\/2024\/10\/Enabling_compromise.pdf [https:\/\/perma.cc\/343W-ZEDN].<\/span> The messaging bill, however, provides the political \u201ccover\u201d necessary to agree on the ultimate compromise without alienating the party\u2019s base\u2014in particular, the relatively more extreme voters who control primary elections.248<\/a><\/sup>Id.<\/em><\/span> Second, messaging bills can help voters understand who to blame, and thus who to punish electorally. Where a majority is blocked by the filibuster in the Senate, congressional leadership may regardless bring legislation to a vote, knowing it will fail, so that voters see that the minority party is blocking important legislation.249<\/a><\/sup>See <\/em>Jim Saksa, Messaging Bills Are Loud, But Do Voters Hear Them?<\/em>, ROLL CALL (July 25, 2024, at 16:29 ET), https:\/\/rollcall.com\/2024\/07\/25\/messaging-bills-are-loud-but-do-voters-hear-them\/ [https:\/\/perma.cc\/UY3D-DZN5].<\/span> And finally, messaging bills can put legislators \u201con the record.\u201d Majority party members can propose legislation that they know will not pass, but will force minority members to cast potentially politically unpopular votes.250<\/a><\/sup>Id.<\/em><\/span> Empirical research shows that how members vote on messaging bills closely matches how they vote on \u201creal\u201d legislation\u2014that is, messaging votes reflect members\u2019 \u201ctrue\u201d preferences.251<\/a><\/sup>Thomas R. Gray & Jeffery A. Jenkins, Messaging, Policy and \u201cCredible\u201d Votes: Do Members of Congress Vote Differently When Policy Is on the Line?<\/em>, 42 J. PUB. POL\u2019Y 637 (2022).<\/span> As a result, such forced votes on uncomfortable issues may help reveal candidate stances, providing valuable information to voters.<\/p>\n

VI. CONCLUSION<\/strong><\/h4>\n

In theory, judicial consideration of post-enactment legislative history holds promise for our constitutional system. But as incorporated into the MQD, post-enactment legislative history cannot realize this promise. Instead, it will more likely quiet Congress\u2014discouraging already weakened legislators from carrying out their constitutional obligations. And regardless of whether considering post-enactment legislative history is a normative good, there is no principled reason to consider it only<\/em> in MQD cases. The Court should make up its mind: does it believe in bicameralism, or not?<\/p>\n\n\n

\n\n\n

[*]<\/a> J.D. 2026, Harvard Law School; B.S. 2020, Georgetown University. I am grateful to Brian Frazelle, Todd Rakoff, Daphna Renan, Matthew Stephenson, and Ganesh Sitaraman for thoughtful comments, advice, and encouragement. Thank you to the editors of the Harvard Journal on Legislation<\/em> for their helpful edits.<\/p>\n\n\n

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