# Wisconsin Public Intervenor v. Mortier/Concurrence Scalia

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* Case Syllabus
* Opinion of the Court
* Concurring Opinion Scalia
Justice SCALIA, concurring in the judgment.
I agree with the Court that FIFRA does not pre-empt local regulation, because I agree that the terms of the statute do not alone manifest a pre-emption of the entire field of pesticide regulation. Ante, 611-614. If there were field preemption, 7 U.S.C. § 136v would be understood not as restricting certain types of state regulation (for which purpose it makes little sense to restrict States but not their subdivisions) but as authorizing certain types of state regulation (for which purpose it makes eminent sense to authorize States but not their subdivisions). But the field-pre-emption question is certainly a close one. Congress' selective use of "State" and "State and political subdivisions thereof" would suggest the authorizing rather than restricting meaning of § 136v, were it not for the inconsistent usage pointed to in Part I of the Court's opinion.
As the Court today recognizes, see ante, at 606-607, the Wisconsin Justices agreed with me on this point, and would have come out the way that I and the Court do but for the Committee Reports contained in FIFRA's legislative history. I think they were entirely right about the tenor of those reports. Their only mistake was failing to recognize how unreliable Committee Reports are-not only as a genuine indicator of congressional intent but as a safe predictor of judicial construction. We use them when it is convenient, and ignore them when it is not.
Consider how the case would have been resolved if the committee reports were taken seriously: The bill to amend FIFRA (H.R. 10729) was reported out of the House Committee on Agriculture on September 25, 1971. According to the accompanying Committee Report:
"The Committee rejected a proposal which would have permitted political subdivisions to further regulate pesticides on the grounds that the 50 States and the Federal Government should provide an adequate number of regulatory jurisdictions." H.R.Rep. No. 92-511, p. 16 (1971).
Had the grounds for the rejection not been specified, it would be possible to entertain the Court's speculation, ante, at 609, that the Committee might have been opposing only direct conferral upon localities of authority to regulate, in contrast to state delegation of authority to regulate. But once it is specified that an excessive number of regulatory jurisdictions is the problem-that "50 States and the Federal Government" are enough then it becomes clear that the Committee wanted localities out of the picture, and thought that its bill placed them there.
The House Agriculture Committee's bill was passed by the full House on November 9, 1971, and upon transmittal to the Senate was referred to the Senate Committee on Agriculture and Forestry, which reported it out on June 7, 1972. The accompanying Committee Report both clearly confirms the foregoing interpretation of the House Committee Report, and clearly endorses the disposition that interpretation produces.
"[We have] considered the decision of the House Committee to deprive political subdivisions of States and other local authorities of any authority or jurisdiction over pesticides and concurs with the decision of the House of Representatives. Clearly, the fifty States and the Federal Government provide sufficient jurisdictions to properly regulate pesticides. Moreover, few, if any, local authorities whether towns, counties, villages, or municipalities have the financial wherewithal to provide necessary expert regulation comparable with that provided by the State and Federal Governments. On this basis and on the basis that permitting such regulation would be an extreme burden on interstate commerce, it is the intent that section [136v], by not providing any authority to political subdivisions and other local authorities of or in the States, should be understood as depriving such local authorities and political subdivisions of any and all jurisdiction and authority over pesticides and the regulation of pesticides." S.Rep. No. 92-838, pp. 16-17 (1972), U.S.Code Cong. & Admin.News 1972, p. 4008 (emphasis added).
Clearer committee language "directing" the courts how to interpret a statute of Congress could not be found, and if such a direction had any binding effect, the question of interpretation in this case would be no question at all.
But there is still more. After the Senate Agriculture Committee reported the bill to the floor, it was re-referred to the Committee on Commerce, which reported it out on July 19, 1972. The report of that Committee, plus the accompanying proposals for amendment of H.R. 10729, reconfirmed the interpretation of the Senate and House Agriculture committees. The Report said:
specifically prohibit local governments from regulating pesticides, the report of that committee states explicitly that local governments cannot regulate pesticides in any manner. Many local governments now regulate pesticides to meet their own specific needs which they are often better able to perceive than are State and Federal regulators." S.Rep. No. 92-970, p. 27 (1972), U.S.Code Cong. & Admin.News 1972, p. 4111.
The Court claims that this passage, plus the amendment that it explains, show that "the two principal committees responsible for the bill [were] in disagreement over whether it preempted pesticide regulation by political subdivisions." Ante, at 610. I confess that I am less practiced than others in the science of construing legislative history, but it seems to me that quite the opposite is the case. The Senate Commerce Committee Report does not offer a different interpretation of the pre-emptive effect of H.R. 10729. To the contrary, it acknowledges that the report of the originating committee "states explicitly that local governments cannot regulate pesticides in any manner," and then proceeds to a statement ("Many local governments now regulate pesticides, etc.") which questions not the existence but the desirability of that restriction on local regulatory power. And since it agreed with the interpretation but did not agree with the policy, the Senate Commerce Committee proposed an amendment to H.R. 10729, whose purpose, according to its report, was to "giv[e] local governments the authority to regulate the sale or use of a pesticide beyond the requirements imposed by State and Federal authorities." S.Rep. No. 92-970, at 27, U.S.Code Cong. & Admin.News 1972, p. 4111. In a supplemental Report, the Senate Agriculture Committee opposed the Commerce Committee's amendment, which it said would "giv[e] local governments the authority to regulate the sale or use of a pesticide," thereby "vitiat[ing]" the earlier Agriculture Committee Report. S.Rep. No. 92-838, pt. 2, at 46-47 (1972), U.S.Code Cong. & Admin.News 1972, p. 4066. This legislative history clearly demonstrates, I think, not (as the Court would have it) that the two principal Senate committees disagreed about whether H.R. 10729 pre-empted local regulation, but that they were in complete accord that it did, and in disagreement over whether it ought to.
Of course that does not necessarily say anything about what Congress as a whole thought. Assuming that all the members of the three committees in question (as opposed to just the relevant subcommittees) actually adverted to the interpretive point at issue here-which is probably an unrealistic assumption-and assuming further that they were in unanimous agreement on the point, they would still represent less than two-fifths of the Senate, and less than one-tenth of the House. It is most unlikely that many Members of either chamber read the pertinent portions of the Committee Reports before voting on the bill-assuming (we cannot be sure) that the Reports were available before the vote. Those pertinent portions, though they dominate our discussion today, constituted less than a quarter-page of the 82-page House Agriculture Committee Report, and less than a half-page each of the 74-page Senate Agriculture Committee Report, the 46-page Senate Commerce Committee Report, and the 73-page Senate Agriculture Committee Supplemental Report. Those Reports in turn were a minuscule portion of the total number of reports that the Members of Congress were receiving (and presumably even writing) during the period in question. In the Senate, at least, there was a vote on an amendment (the Commerce Committee proposal) that would have changed the result of the supposed interpretation. But the full Senate could have rejected that either because a majority of its Members disagreed with the Commerce Committee's proposed policy; or because they disagreed with the Commerce Committee's and the Agriculture Committee's interpretation (and thus thought the amendment superfluous); or because they were blissfully ignorant of the entire dispute and simply thought that the Commerce Committee, by asking for recommittal and proposing 15 amendments, was being a troublemaker; or because three different minorities (enough to make a majority) had each of these respective reasons. We have no way of knowing; indeed, we have no way of knowing that they had any rational motive at all.
All we know for sure is that the full Senate adopted the text that we have before us here, as did the full House, pursuant to the procedures prescribed by the Constitution; and that that text, having been transmitted to the President and approved by him, again pursuant to the procedures prescribed by the Constitution, became law. On the important question before us today, whether that law denies local communities throughout the Nation significant powers of self-protection, we should try to give the text its fair meaning, whatever various committees might have had to say-thereby affirming the proposition that we are a Government of laws not of committee reports. That is, at least, the way I prefer to proceed.
If I believed, however, that the meaning of a statute is to be determined by committee reports, I would have to conclude that a meaning opposite to our judgment has been commanded three times over-not only by one committee in each house, but by two committees in one of them. Today's decision reveals that, in their judicial application, committee reports are a forensic rather than an interpretive device, to be invoked when they support the decision and ignored when they do not. To my mind that is infinitely better than honestly giving them dispositive effect. But it would be better still to stop confusing the Wisconsin Supreme Court, and not to use committee reports at all.
The Court responds to this concurrence in a footnote, ante, at 610-612 n. 4, asserting that the legislative history is really ambiguous. I leave it to the reader to judge. I must reply, however, to the Court's assertion that the "practice of utilizing legislative history reaches well into [our] past," ante, at 612 n. 4, for which proposition it cites an opinion written by none other than John Marshall himself, Wallace v. Parker, 6 Pet. 680, 8 L.Ed. 543 (1832). What the Court neglects to explain is that what it means by "the practice of utilizing legislative history" is not the practice of utilizing legislative history for the purpose of giving authoritative content to the meaning of a statutory text-which is the only practice I object to. Marshall used factual statements in the report of an Ohio legislative committee "as part of the record" in the case, id., at 689, 690, assuming that that was permissible "under the laws of Ohio," ibid. I do not object to such use. But that is quite different from the recent practice of relying upon legislative material to provide an authoritative interpretation of a statutory text. That would have shocked John Marshall. As late as 1897, we stated quite clearly that there is "a general acquiescence in the doctrine that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body." United States v. Trans-Missouri Freight Assn., 166 U.S. 290, 318, 17 S.Ct. 540, 550, 41 L.Ed. 1007. And even as late as 1953, the practice of using legislative history in that fashion was novel enough that Justice Jackson could dismiss it as a "psychoanalysis of Congress," and a "weird endeavor." United States v. Public Utilities Comm'n, 345 U.S. 295, 319, 73 S.Ct. 706, 719, 97 L.Ed. 1020 (Jackson, J., concurring). It is, in short, almost entirely a phenomenon of this century-and in its extensive use a very recent phenomenon. See, e.g., Carro & Brann, Use of Legislative Histories by the United States Supreme Court: A Statistical Analysis, 9 J. Legis. 282 (1982); Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L.Rev. 195, 196-197 (1983).
I am depressed if the Court is predicting that the use of legislative history for the purpose I have criticized "will . . . reach well into the future." But if it is, and its prediction of the future is as accurate as its perception that it is continuing a "practice . . . reach[ing] well into [our] past," I may have nothing to fear.

## Notes

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