Example 8.4

Takeaway point 8.4: Use legislative history to reveal that a legislature acted with an unlawful motive, for a reason other than the government’s current position in litigation, or without the proper factual basis to invoke constitutionally prescribed powers.

Although legislative history is most frequently used to construe an ambiguous statute or to illuminate a legislature’s goals, it serves three other valuable roles:

1. to spotlight the legislature’s unconstitutional or unseemly motives;

2. to show that the legislature’s motive for enacting a law differs from what its lawyers claim its goals were; and

3. to show that the legislative process failed to uncover facts that must exist for the legislature to invoke limited powers (e.g., if Congress failed to assess whether a problem that it sought to address through its Commerce Clause powers involved any interstate commerce).

The passage below illustrates the third technique. (Example 3.6 shows the other two moves.) Here, three Caucasian men attacked a developmentally disabled Navajo man, branding a swastika into his arm and drawing white supremacist symbols on his body. They were convicted of various felonies in New Mexico state court. They were also tried and convicted in federal court under a new federal law, the Hate Crimes Prevention Act (HCPA). The attackers were convicted under a provision of the HCPA (§ 249(a)(1)) that Congress enacted under the Thirteenth Amendment. But, as argued below, that amendment allows Congress to enact legislation only if states have failed to punish hate crimes. Here, the defendants use legislative history to assail the constitutionality of Section 249(a)(1).

Source: Brief of convicted hate-crime perpetrators in Hatch v. United States, 2012 WL 1966198 (10th Cir.).

The brief uses the absence of legislative evidence to suggest that Congress lacked power to fix the supposed problem of unpunished hate crimes.

The brief strengthens its legislative history argument by tying it to relevant case law. This brief shows how to make a credible argument out of a difficult, unpopular position. Remember this attack-the-law approach if you find yourself with unpalatable clients.

Hate crimes are common. That fact should hurt the defendants’ position because it shows that hate crimes occur frequently enough to worry Congress. But the lawyers transform this bad fact into a useful one by suggesting that the vast number of hate crimes should have enabled Congress to identify more than one case in which a state failed to prosecute a hate-crime perpetrator.

The brief lists multiple cases to try to convince the appellate court that it should scrutinize the grounds on which Congress acted. These cases provide anxious judges with confidence that they can probe Congress’s fact finding.