SUPREME COURT OF THE UNITED STATES

No. 94–1175

BANK ONE CHICAGO, N. A., PETITIONER v. MIDWEST BANK & TRUST COMPANY

on writ of certiorari to the united states court of appeals for the seventh circuit

[January 17, 1996]

Justice Scalia, concurring in part and concurring in the judgment.

I agree with the Court's opinion, except that portion of it which enters into a discussion of "[t]he drafting history of §4010." Ante, at 8. In my view a law means what its text most appropriately conveys, whatever the Congress that enacted it might have "intended." The law is what the law says, and we should content ourselves with reading it rather than psychoanalyzing those who enacted it. See United States v. Public Util. Comm'n of Cal., 345 U. S. 295, 319 (1953) (Jackson, J., concurring). Moreover, even if subjective intent rather than textually expressed intent were the touchstone, it is a fiction of Jack-and-the-Beanstalk proportions to assume that more than a handful of those Senators and Members of the House who voted for the final version of the Expedited Funds Availability Act, and the President who signed it, were, when they took those actions, aware of the drafting evolution that the Court describes; and if they were, that their actions in voting for or signing the final bill show that they had the same "intent" which that evolution suggests was in the minds of the drafters.

Justice Stevens acknowledges that this is so, but asserts that the intent of a few committee members is nonetheless dispositive because legislators are "busy people," and "most members [of Congress] are content to endorse the views of the responsible committees." Ante, at 1. I do not know the factual basis for that assurance. Many congressional committees tend not to be representative of the full house, but are dispro portionately populated by Members whose constitu- ents have a particular stake in the subject matter—agriculture, merchant marine and fisheries, science and technology, etc. I think it quite unlikely that the House of Representatives would be "content to endorse the views" that its Agriculture Committee would come up with if that committee knew (as it knows in drafting Committee Reports) that those views need not be moderated to survive a floor vote. And even more unlikely that the Senate would be "content to endorse the views" of the House Agriculture Committee. But assuming Justice Stevens is right about this desire to leave details to the committees, the very first provision of the Constitution forbids it. Article I, Section 1 provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives." It has always been assumed that these powers are nondelegable—or, as John Locke put it, that legislative power consists of the power "to make laws, . . . not to make legislators." J. Locke, Second Treatise of Government 87 (R. Cox ed. 1982). No one would think that the House of Representatives could operate in such fashion that only the broad outlines of bills would be adopted by vote of the full House, leaving minor details to be written, adopted, and voted upon, only by the cognizant committees. Thus, if legislation consists of forming an "intent" rather than adopting a text (a proposition with which I do not agree), Congress cannot leave the formation of that intent to a small band of its number, but must, as the Constitution says, form an intent of the Congress. There is no escaping the point: Legislative history that does not represent the intent of the whole Congress is nonprobative; and legislative history that does represent the intent of the whole Congress is fanciful.

Our opinions using legislative history are often curiously casual, sometimes even careless, in their analysis of what "intent" the legislative history shows. See Wisconsin Public Intervenor v. Mortier, 501 U. S. 597, 617–620 (1991) (Scalia, J., concurring). Perhaps that is because legislative history is in any event a make-weight; the Court really makes up its mind on the basis of other factors. Or perhaps it is simply hard to maintain a rigorously analytical attitude, when the point of departure for the inquiry is the fairyland in which legislative history reflects what was in "the Congress's mind."

In any case, it seems to me that if legislative history is capable of injecting into a statute an "intent" that its text alone does not express, the drafting history alluded to in today's opinion should have sufficed to win this case for respondent. It shows that interbank liability was not merely omitted from subsection (a), entitled "Civil liability." It was removed from that subsection, simultaneously with the addition of subsection (f), 12 U. S. C. §4010(f), which gave the Federal Reserve Board power to "impose on or allocate among depository institutions the risks of loss and liability in connection with any aspect of the payment system" (language that is at least as compatible with adjudication as with rulemaking). Now if the only function of this new subsection (f) had been to give the Board rulemaking power, there would have been no logical reason to eliminate interbank disputes from the "Civil liability" subsection, whose basic prescription (banks are civilly liable for violations of the statute or of rules issued under the statute) applies no less in the interbank than in the bank-customer context. Nor can the removal of interbank disputes from subsection (a) be explained on the ground that Congress had decided to apply different damages limits to those disputes. The former subsection (a), in both House and Senate versions, already provided varying damages limits for individual suits and class actions, see S. 790, 100th Cong., 1st Sess., §609(a) (1987); H. R. Rep. No. 100–52, pp. 10–11 (1987), and it would have been logical to set forth the newly desired interbank variation there as well, leaving to the new subsection (f) only the conferral of rulemaking authority. Or, if it were thought essential to "consolidate" all the details of interbank disputes in subsection (f), it would still not have been necessary to specifically exclude interbank disputes from the general "civil liability" pronouncement of subsection (a). The prologue of that subsection, "[e]xcept as otherwise provided in this section," would have made it clear that interbank civil liability was limited as set forth in subsection (f). The most plausible explanation for specifically excluding interbank disputes from the "Civil liability" subsection when subsection (f) was added—and for avoiding any reference to "civil liability" in subsection (f) itself—is an intent to commit those disputes to a totally different regime, i.e., to Board adjudication rather than the normal civil-liability regime of the law courts.

Today's opinion does not consider this argument, but nonetheless refutes it (in my view) conclusively. After recounting the drafting history, the Court states that "nothing in §4010(f)'s text suggests that Congress meant the Federal Reserve Board to function as both regulator and adjudicator in interbank controversies." Ante, at 9 (emphasis added). Quite so. The text's the thing. We should therefore ignore drafting history without discussing it, instead of after discussing it.