Timing and Delegation: A Reply

For two authors who come to such different conclusions, Professor Manning and I agree on a good deal. We agree that courts, in considering whether to consult legislative history in the course of statutory construction, must take heed of the special constitutional rule against congressional self-aggrandizement.\u27 Thus, we agree that the Constitution forbids courts to give authoritative weight to post-enactment legislative history, because the effect of such a judicial practice is to permit Congress to delegate a very important power, the power to elaborate the meaning of statutes, to its committees or Members. We also agree, however, that Congress may, by express statement in a statute, validate legislative materials through incorporation by reference, thereby investing such materials with authority. ... The sticking point, therefore, is only this: if Congress wants to create a regime in which courts may attribute authority to legislative history, must it do so by including an express statement to that effect in every statute, or may it pass one statute that makes this the general rule? Professor Manning inclines to the former view; I, to the latter. In this very brief reply, I have just a couple of comments on this difference between us. The root cause of our disagreement lies in our different understandings of the importance of timing in delegation doctrine. Professor Manning acknowledges that the Supreme Court\u27s cases concerning congressional self-delegation all deal with delegation of authority to take action after enactment of the authority-granting statute, but he regards this point as a mere detail that does not relate to the reasoning of those cases