Phil Washington, President Biden’s nominee to serve as administrator of the Federal Aviation Administration, faces a potential obstacle to his confirmation: Some members of Congress believe that he is ineligible to serve in the position. The difficulty is that Washington is a U.S. Army retiree, and a statute requires that the FAA administrator be a “civilian.” Rep. Sam Graves (R-Mo.) recently asserted in The Hill that Washington “unequivocally fails to meet the very clear legal requirements to serve as FAA administrator, and thus requires a legislative waiver from Congress to serve.”
As a law professor who studies statutory interpretation, I have to say that Rep. Graves is incorrect. His explanation omits a crucial detail. It also disregards the Supreme Court’s current views on how to interpret a statutory command—views that were established thanks to the late Justice Antonin Scalia.
Let’s start by looking at the statute providing for the administrator’s appointment. This statute, 49 U.S.C. § 106(c), does indeed state that “[t]he Administrator must . . . be a civilian.” But—and this is very important—the statute does not define the term “civilian.” Basic principles of statutory interpretation therefore call for the term to receive its usual dictionary definition, which, according to Merriam-Webster, is “one not on active duty in the armed services.” Under this definition, Washington would be eligible to serve.
Graves, however, claims that when the statute was passed, “Congress made a point to elaborate further that the administrator must ‘be a civilian in the strictest sense of the word. Thus at the time he is nominated he may not be on the active or retired list of any regular component of the armed services…’ (emphasis added).” But this is where Graves omits a crucial detail. The elaboration to which he refers did not come from Congress. It came from a congressional committee report that is part of the statute’s “legislative history.”
The question of how much weight legislative history should receive in the process of statutory interpretation has been the subject of enormous debate over the last 40 years. Some judges and scholars have argued for an interpretive method known as “textualism.” The central tenet of textualism is that the meaning of a statute should be determined by reading the statute’s text. Textualists draw a sharp distinction between a statute’s text and its legislative history. Congress, textualists observe, votes for the statutory text, giving the text the force of law. Congress does not vote on the materials that make up a statute’s legislative history, such as committee reports, floor statements, and statements made in committee hearings. Textualists therefore decline to rely on these materials in giving meaning to a statute.
The late Justice Antonin Scalia (whom Republicans revere) was a leading champion of textualism. He thought legislative history should receive no weight whatsoever in statutory interpretation. As a result of Justice Scalia’s influence, the Supreme Court today places far more emphasis on statutory text, and far less on legislative history, than it did before Justice Scalia’s appointment to the court. Indeed, although for many years the divide over interpretive methods tended to follow ideological lines (conservative justices were more likely to embrace textualism and liberal justices were more likely to rely on other interpretative methods), Justice Elena Kagan recently declared that “we’re all textualists now.” Because of textualism’s increased influence on the Supreme Court’s interpretation of statutes, a committee report cannot definitively resolve the meaning of the statutory requirement that the FAA administrator “be a civilian.”
Now, Graves does not base his entire argument on the committee report. He notes as well that his interpretation is supported by practice. Graves points out that President Eisenhower, who signed the statute into law, required his first nominee for the administrator post not only to resign from the Air Force, but also to remove his name from the retired list. Over the ensuing years, several subsequent nominees either resigned their military commissions or received a waiver from Congress. This practice, Graves asserts, shows that the “intent” of the statute was clear.
This practice could indeed receive some weight in the interpretation of the FAA statute. But it cannot unequivocally resolve the statute’s meaning, even assuming Graves is correct that the practice establishes what Congress intended the statute to mean. Textualists don’t care what Congress intended when it passed a statute. They care what the statute says. Graves asserts that “[t]he letter of the law is clear.” But the letter—i.e. the text—of the statute says only that the administrator must be “a civilian.” It does not nail down the definition of that term. That leaves the door open for the term to receive its usual, dictionary meaning, which, as noted above, would encompass military retirees.
In the end, Graves may be right or wrong that his interpretation of the FAA statute is ultimately the best interpretation. Textualism does not always triumph, and long-accepted practice under a statute might influence the statute’s interpretation. But Graves is wrong to suggest that the statute “unequivocally” requires his interpretation. In light of the Supreme Court’s current interpretive methods, a sentence in a committee report does not unequivocally control the meaning of statutory text.
Jonathan R. Siegel is a Professor of Law at George Washington University Law School. He frequently writes about theories of statutory interpretation.