Agency Legislative History

• Publication year: 2018

Agency Legislative History

Jarrod Shobe

AGENCY LEGISLATIVE HISTORY

Jarrod Shobe^*

No tool of statutory construction has drawn as much scholarly and judicial attention and controversy as legislative history. This Article shows that the standard account of legislative history often fails to account for legislative history generated through agency—Congress legislative communications, which are often among the most relevant legislative history. These communications, which this Article terms "agency legislative history," have important implications for theories and the practice of statutory interpretation and agency delegation.

The account of agency legislative history provided here offers a new perspective on the legislative history debate and questions of how empirical realities of the legislative process should influence statutory interpretation. Agency legislative history also sheds new light on the ongoing debate over Chevron's domain. Agency legislative history reinforces arguments in favor of deference to agencies by raising novel questions about courts' institutional capacity to effectively uncover congressional deals, and by providing new reasons to believe that agencies may be better statutory interpreters than courts. At the same time, for the many judges skeptical of broad deference but unsure how to limit it, agency legislative history can allow for more narrowly tailored and empirically supported deference decisions that reflect the variety of ways legislation is made.

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Introduction.............................................................................................285

I. Legislative History's Domain....................................................291
II. Types of Agency Legislative History.......................................293

A. Formal vs. Informal Agency Legislative History...................... 293
B. Agency-Proposed Legislation................................................... 295
C. Agency Involvement in the Drafting Process............................ 297
D. Agency Legislative Analysis ..................................................... 299

1. Section-by-Section Analyses............................................... 300
2. Views Letters ...................................................................... 301
3. Pre-Drafting Reports and Memos ...................................... 302
4. Agency Testimony............................................................... 303
5. Courts' Use of Agency Legislative Analysis....................... 304

E. Accessibility of Agency Legislative History.............................. 308

III. Implications of Agency Legislative History...........................313

A. Implications for Deference ....................................................... 313

1. Support for Deference ........................................................ 314
2. Concerns with Deference ................................................... 317
3. Contextual Deference ......................................................... 321

B. Implications for Interpretation ................................................. 328

1. Interpreting Statutes in Light of Agency Legislative History ................................................................................ 328
2. Agency Legislative History and Empirical Realities of the Legislative Process ............................................................. 331

Conclusion.................................................................................................332

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Introduction

Whether, and how, to use legislative history continues to be the most hotly contested issue in statutory interpretation.¹ This controversy is understandable given how important legislative history has been in many of the most noteworthy judicial decisions of the last forty years.² In this debate, legislative history's domain is traditionally thought to begin and end with congressional documents, actions, or inactions.³ Absent from the discussion of legislative history is almost any mention of agency communications with Congress throughout the legislative process,⁴ even though agencies are often intimately involved in

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drafting, revising, and negotiating legislation because of their on-the-groundexpertise.⁵

Although scholars and courts traditionally imagine a sharp divide between legislation passed by Congress and implementation by agencies, this Article shows that in reality, there is often a blurred line—with Congress communicating with agencies to understand how they intend to implement statutes and agencies communicating with Congress in a variety of ways and at various stages of the legislative process to influence drafting.⁶ These communications are often an integral part of forming Congress's intentions and expectations with respect to legislation. It is not surprising that the specifics of these communications have gone mostly unrecognized and untheorized given how little scholars have studied agencies' role in the legislative process.⁷ The lack of understanding about agency—Congress interactions is problematic because it has at times created a mismatch between current statutory interpretation and agency delegation debates, and the realities of the legislative process. This Article aims to remedy this by providing a typology and analysis of these agency—Congress legislative interactions, which this Article collectively terms "agency legislative history." In doing so, it provides a new perspective on what legislative history is, which is relevant to both textualists who eschew congressional legislative history and purposivists who embrace it.

To understand the implications agency legislative history could have for interpretation, consider the following hypothetical scenarios. Suppose Congress has passed legislation requiring the EPA to implement new environmental restrictions on coal-burning power plants. Throughout the process leading up to enactment, Congress worked closely with the EPA, and the EPA provided hundreds of pages of background material, dozens of hours of testimony, several written letters detailing the Agency's concerns with the legislation, and a number

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of written explanations of how the legislation would work on the ground. Much of these materials ended up in congressional committee reports. The owner of a coal-burning power plant has challenged the EPA's implementation of the legislation. Should the EPA's voluminous communications with Congress influence a judge's approach to statutory interpretation and deference?

Now suppose Congress passed a different bill, which was drafted almost entirely by the Department of Defense (DoD). The relevant congressional committee also adopted, as part of its own committee report, language from a section-by-section analysis of the bill provided by the DoD. A number of years later, after the election of a new President, the Department interprets the statute in a way that goes against the description it provided to Congress in the section-by-section analysis, although arguably within the scope of the somewhat vague legislative language. Should a judge interpreting the statute consider the fact that the bill came directly from the DoD when deciding whether to defer to the agency's interpretation? Should a purposivist judge give more or less weight to the agency's analysis included in the committee report than other legislative history? And should a textualist judge treat the agency's analysis included in the committee report like any other legislative history and exclude it from consideration?

Alternatively, suppose an agency sends a letter to Congress opposing a bill and proposing modifications. Congress, despite the agency's protestations, votes to pass the bill unchanged. A group challenges the agency's interpretation of the statute. Should a court consider the interactions between the agency and Congress when deciding whether to defer to the agency's interpretation?

This Article begins to examine how courts could approach questions like these in light of the existence of agency legislative history. One way it does this is by looking at how courts have used agency legislative history in situations similar to those described above. Based on the author's extensive search of references to agency legislative history in judicial decisions, some courts have used it to help determine whether to uphold agency statutory interpretations, albeit infrequently, inconsistently, and predominantly in the pre-Chevron era.⁸ This earlier practice appears to have been mostly lost to modern developments in statutory interpretation and agency delegation, which perhaps helps explain why it has received scant attention from scholars. These pre-Chevron cases

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provide useful examples of how modern courts could, or perhaps should not, apply agency legislative history in the future.⁹

Agency legislative history is also relevant to ongoing debates about Chevron's domain. A number of scholars and judges have advocated for a broad application of Chevron that allocates interpretive authority to agencies instead of the judicial branch.¹⁰ These arguments are often based on agencies' relative expertise and institutional competence.¹¹ Agency legislative history lends support to these arguments by showing that the creation of legislation is a multi-layered and multi-actor process that often turns on bargains necessary to achieve enactment that may be impossible, or at least incredibly costly, for a court to uncover. It also shows that agencies may be better statutory interpreters than courts because they have rich legislative repositories that record and explain statutory deals and purposes.¹² These records are often inaccessible to courts, and even if they were available they would be difficult and time-consuming for generalist judges, entirely absent from the legislative process, to make sense of. Perhaps, in light of agency legislative history, we should...