Drafting Errors

Professor John Manning has argued that judicial reliance on legislative history violates the constitutional rule barring congressional self-delegation. This Article suggests that Manning is incorrect, because a statute's legislative history already exists at the time of the statute's passage. Delegation is inherenly forward-looking; judicial use of legislative history effectively amounts to saying that Congress incorporates such history by reference when it passes statutes. Incorporation by reference is permitted and does not violate any nondelegation doctrines.


The Use of Legislative History in a System of Separated Powers
53 Vand. L. Rev. 1457 (2000)

Abstract
	Professor John Manning has argued that judicial reliance on legislative history violates the constitutional rule barring congressional self-delegation. This Article suggests that Manning is incorrect, because a statute's legislative history already exists at the time of the statute's passage. Delegation is inherenly forward-looking; judicial use of legislative history effectively amounts to saying that Congress incorporates such history by reference when it passes statutes. Incorporation by reference is permitted and does not violate any nondelegation doctrines.