282
Opinion of Scalia, J.
the conferral of rulemaking authority. Or, if it were thought essential to "consolidate" all the details of interbank disputes in subsection (f), it would still not have been necessary to specifically exclude interbank disputes from the general "civil liability" pronouncement of subsection (a). The prologue of that subsection, "[e]xcept as otherwise provided in this section," would have made it clear that interbank civil liability was limited as set forth in subsection (f). The most plausible explanation for specifically excluding interbank disputes from the "Civil liability" subsection when subsection (f) was added—and for avoiding any reference to "civil liability" in subsection (f) itself—is an intent to commit those disputes to a totally different regime, i. e., to Board adjudication rather than the normal civil-liability regime of the law courts.2
Today's opinion does not consider this argument, but nonetheless refutes it (in my view) conclusively. After recounting the drafting history, the Court states that "nothing in § 4010(f)'s text suggests that Congress meant the Federal Reserve Board to function as both regulator and adjudicator
2 I have explained why the "consolidation" explanation developed by Justice Stevens, ante, at 277, does not ring true. Even if it did, however, it would not be accurate to say that the legislative history thus provides "the answer to an otherwise puzzling aspect of the statutory text," ibid. What Justice Stevens calls "the answer" (viz., the wish to consolidate all the interbank provisions in one section) is no more evident from the legislative history than it is from the face of the statute itself. Nothing in the legislative history says "we will consolidate interbank matters in a new subsection (f)"; Justice Stevens simply surmises, from the fact that the final text contains such consolidation, that consolidation was the reason for excluding interbank disputes from subsection (a). What investigation of legislative history has produced, in other words, is not an answer (that, if there is one, is in the text), but rather the puzzlement to which an answer is necessary: Why were interbank disputes eliminated from subsection (a) when subsection (f) was adopted? Being innocent of legislative history, I would not have known of that curious excision if the Court's opinion had not told me. Thus, legislative history has produced what it usually produces: more questions rather than more answers.
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