C.
The Department's remaining arguments fare no better. Each directs the Court's attention to a purported source of authority outside the statute. Of course, the Department's cause of action, if any, must come from Title II itself. Newport News, 514 U.S. at 136; Marshall, 584 F.2d at 676. Even so, the sources on which the Department relies do not withstand scrutiny.
The Department argues that Executive Order 13217, which directs the Attorney General to "fully enforce Title II of the ADA," supports its authority to bring suit. Exec. Order No. 13217, 66 Fed. Reg. 33,155 (June 18, 2001). The circular nature of this argument should be readily apparent (the Executive Branch has authority to enforce Title II through litigation because the Executive Branch says it has authority to enforce Title II through litigation). Moreover, Executive Order 13217 refers to cooperative efforts with states and alternative dispute resolution, not litigation. See id.
Next, the Department points to a committee report from the House of Representatives that dealt with a previous dealt of Title II's enforcement section. Whatever limited use some courts may find in such legislative history, it certainly cannot be used to override the unambiguous terms Congress chose to enact--particularly where, as here, the legislative history cited concerns language Congress rejected. See, e.g., Harris v. Garner, 216 F.3d 970, 977 (11th Cir. 2000) ("When the import of the words Congress has used is clear, as it is here, we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language.").12
The Department's last redoubt is what it contends to be a "substantial history of federal enforcement..." DE 226 at 9.13 In support, the Department cites several district court opinions for the proposition that Title II authorizes it to participate in litigation. Most are not on point, and the remainder are not persuasive. In two of the cases the Department cites, the parties never raised, and the court never considered, the issue of the Department's standing. See United States v. N. Ill. Special Recreation Ass'n, Case No. 12-CV-07613 (N.D. Ill. Apr. 11, 2013); United States v City of Balt., Case No. 09-CV-01049 (D. Md. Feb. 29, 2012). Four others concern the Department's intervention in existing litigation. See Lane v. Brown, Case No. 12-CV-138 (D. Or. May 22, 2013); Steward v. Perry, Case No. 10-CV-01025 (W.D. Tex. Sept. 20, 2012): Lynn E. v. Lvnch, Case No. 12-CV-53 (D.N.H. Apr. 4, 2012); Disability Advocates, Inc. v. Paterson, Case No. 03-CV-03209 (E.D.N.Y. Nov. 23, 2009). In Lynn E., all parties assented to the Department's intervention; in Paterson, no party opposed it; and in Lane and Stewart, no party opposed the Department's intervention on the ground that the Department lacked standing. Thus, none of these cases furthers the Department's position because none actually addressed its standing.
The Court is not persuaded by the three cases that do concern the Department's standing under Title II. In United States v. City and County of Denver, the court found that Title II authorizes suit by the Department because the phrase ''other means authorized by law'' found in Title VI allows the Department to sue. 927 F. Supp. 1396, 1400 (D. Colo. 1996) (citing Marion Cty., 625 F. Supp. at 612).14 However, the court neither discussed the meaning of the ''provides to any person alleging discrimination'' language in Title II, nor analyzed Title Il's enforcement section against that of Titles I and III. Smith v. City of Philadelphia follows the same pattern--looking to Title VI without conducting analysis of Title Il's language and structure. 345 F. Supp. 2d 482, 489-90 (E.D. Pa. 2004). And United States v. Virginia, simply adopts the reasoning of City and County of Denver without any further analysis. Case No. 12-CV-00059 (E.D. Va. June 5, 2012). The Court finds that the language and structure of the ADA compel the opposite conclusion reached in these cases.
12 The Court echoes the sentiments of Justice Antonin Scalia regarding this fictitious hunt for the collective intentions of the Congressional body:
A reliance on legislative history also assumes that the legislature even had a view on the matter at issue. This is pure fantasy. In the ordinary case, most legislators could not possibly have focused on the narrow point before the court. The few who did undoubtedly had varying views. There is no reason to believe, in other words, that a "legislative intent'' ever existed.
Even if legislative intent did exist, there would be little reason to think it might be found in the sources that the courts consult. Floor statements may well have been (and in modern times very probably were) delivered to an almost-empty chamber--or even inserted into the Congressional Record as a virtually invisible "extension of remarks'' after adjournment. Even if the chamber was full, there is no assurance that everyone present listened, much less agreed. As for committee reports, they are drafted by committee staff and are not voted on (and rarely even read) by the committee members, much less by the full house. And there is little reason to believe that members of the committee reporting the bill hold views representative of the full chamber. Quite the contrary, the conventional wisdom is that the Committee on Agriculture, for example, will be dominated by representatives from farming states. (While some political scientists have challenged that view, it is at least clear that the representativeness of committees is unproved.) Statements in committee hearings are so far removed from what the full house possibly could have had in mind that their asserted relevance is comical. And all these doings of the houses of a bicameral legislature could not possibly have entered into the thinking of the other house--or of the President who signed the bill. The stark reality is that the only thing that one can say for sure was agreed to by both houses and the President (on signing the bill) is the text of the statute. The rest is legal fiction.
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 376 (2012). Committee reports are not a useful aid in discerning the meaning of statutory language. However, because the Court has been dragged into this morass anyway, it will make some passing observations. The Committee on Education and Labor Report cited by the Department which does contemplate Department lawsuits to enforce Title II, dealt with a prior draft of Title II's enforcement section. That prior draft made the Rehabilitation Act's remedies available ''with respect to any individual who believes that he or she is being subjected to discrimination on the basis of disability.'' H.R. Rep. No. 101-485-II at 98. However, the Committee on the Judiciary rejected the ''with respect to'' language, instead deciding that Rehabilitation Act remedies should be "provide[d] to'' persons alleging discrimination. See H.R. Rep. No. 101-485-111 at 52. That committee's report speaks only of a private right of action. Id. The Senate initially proposed utilizing the "with respect to'' language, but receded from that position in favor of the "provides to'' language. See H.R. Conf. Rep. 101-558 at ¶ 23. One might conclude that these revisions compel the result the Court has reached here. But the Court need not speculate about what interpretive changes were intended by the compromises of persons not charged with a duty to "say what the law is.'' Marbury v. Madison, 5 U.S. 137 (1 Cranch 137), 177 (1803). The text carries the day, and the exercise of sifting through these reports offers no interpretive help.
13 As part of this history, the Department advises that it has entered several settlement agreements and consent decrees to redress Title II violations. See DE 226 at 8. While these efforts to encourage compliance are commendable, they have nothing to do with whether the statute authorizes the Department to sue.
14 The court in City and County of Denver did not consider whether this authority to sue derives from a contractual assurance or from the statute itself--a question the Marion County court expressly avoided. See supra, note 9.
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