TEXTUALISM AS A NONDELEGATION DOCTRINE

In the past decade self-described textualist judges have questioned th e legitimacy of wing legislative history as an ''authoritative'' sourc e of legislative intent. Textualists contend that multi-member legisla tive bodies possess no collective intent, and that committee reports a nd sponsors' statements do not, in any case, accurately reflect legisl ative intent. Furthermore, textualists note, such legislative history does not emerge from the constitutionally mandated process of bicamera lism and presentment. This Article critically analyzes the textualist judges' objections to legislative history and rerationalizes textualis m as a special application of the nondelegation doctrine Professor Man ning observes that the textualist critique of legislative history is i n apparent tension with other methods of interpretation employed by te xtualist judges. Such judges routinely rely on a variety of extrinsic sources (agency rules, treatises, judicial opinions, etc.) to interpre t ambiguous statutes, even though these sources do not reflect genuine congressional intent and are not subject to bicameralism and presentm ent. The Article seeks to resolve this apparent anomaly by arguing tha t interpretive reliance on legislative history creates an opportunity for legislative self-delegation, contrary to the clear assumptions of the constitutional structure. Given existing norms of interpretation, the creation of legislative history effectively permits agents of Cong ress to resolve ambiguities of Congress's own making This conflation o f lawmaking and law declaration functions makes it far too attractive for Congress to bypass bicameralism and presentment, assigning the spe cification of legislative detail to committees and sponsors. According ly, this Article concludes that courts should not impute a committee's or sponsor's declaration of intent to Congress as a whole.