Inside agency statutory interpretation.

• Author: Walker, Christopher J.
• Position: Introduction through III. Legislative History A. Federal Agencies in the Legislative Process, p. 999-1038

INTRODUCTION I. OVERVIEW OF EMPIRICAL STUDY A. Scope of Study and Relevant Literature B. Survey Methodology C. The 128 Rule Drafters Surveyed D. The 10,000-Foot View II. THE CANONS A. The Semantic Canons B. The Substantive Canons III. LEGISLATIVE HISTORY A. Federal Agencies in the Legislative Process B. Purposes of Legislative History C. Reliability of Legislative History IV. THE ADMINISTRATIVE LAW DOCTRINES A. Principal-Agent Interpretive Relationship B. Scope of Lawmaking Delegation C. The Judicial Deference Doctrines CONCLUSION SURVEY APPENDIX INTRODUCTION

Given the rise and rise of the modern administrative state, (1) the focus and function of lawmaking have shifted from judge-made common law, to congressionally enacted statutes, and now to agency-promulgated regulations. (2) As of 2013, the Code of Federal Regulations exceeded 175,000 pages and included

tens of thousands of rules. (3) In 2013 alone, federal agencies filled about 80,000 pages of the Federal Register with adopted rules, proposed rules, and notices. (4) By contrast, the 133rd Congress (2013-2014) enacted just 144 public laws for a total of 1750 pages in the Statutes at Large. (5) Such broad delegation of lawmaking authority by Congress to federal agencies creates a principal-agent problem: "[T]he legislature would like the agency to carry out its wishes faithfully, but ensuring the fidelity of the agency may be costly, if not impossible." (6)

Political scientists have spent decades exploring the difficulties involved in Congress's control and oversight of its bureaucratic agents. (7) Those difficulties can be attributed to, among other things, asymmetries in information, expertise, and preferences between Congress (the principal) and federal agencies (the agents). (8) Positive political theorists have also emphasized the dueling principals problem: many federal agencies report to at least two principals-- Congress and the President. (9) Other scholars have explored the justifications for congressional delegation of interpretive authority--for example, agency expertise, legislative drafting costs, and political insulation--and how these different justifications may affect what agency interpretive fidelity means. (10) Moreover, the principal-agent model has been criticized as overly simplistic as other actors--for example, the executive, interest groups, and the public--play an important role in the relationship. (11) For example, in critiquing one such model Adrian Vermeule has remarked that "the crucial simplifications seem not only artificial, but arbitrary--as though a political scientist decided to study only the behavior of left-handed senators, deferring right-handed ones to future research." (12) Indeed, the agency can even become the principal in manipulating the elected branches. (13)

These criticisms notwithstanding, this principal-agent problem may well implicate the democratic and constitutional legitimacy of administrative governance. After all, the Constitution vests "[a]ll legislative Powers herein granted ... in a Congress of the United States" (14)--not in either the executive or judicial branch, much less in an unelected bureaucracy. So the legitimacy of delegating expansive lawmaking authority to unelected regulators may well depend on whether those regulators are faithful agents of Congress (though, as noted above, assessing agency interpretive fidelity may vary based on the justification

for delegation, and the principal-agent model may be too simplistic to capture fully the relationship between Congress and the regulatory state). (15)

Despite the predominance of lawmaking by regulation and the decadeslong application of principal-agent theory to the administrative state, agency statutory interpretation remains, to a large extent, a black box. Terry Moe has explained how these information asymmetries create a "built-in control problem" because the bureaucratic

agent has expertise and other information--about his own diligence and aptitude, for example, or his actual behavior on the job--that are largely unavailable to the principal, and this asymmetry makes it difficult for the principal to ensure that his own interests are being faithfully pursued by the agent. (16) This control problem affects not only how Congress delegates its lawmaking authority to and then oversees federal agencies but also how courts patrol such delegations. We do not know if federal agencies are familiar with, much less adhere to, the rules, customs, and practices that Congress and courts would expect an agent of Congress to follow. Nor do we know how federal agencies distinguish circumstances in which Congress has delegated by ambiguity a measure of broader authority for agencies to pursue policies in the public interest from those in which it has delegated only narrower authority to enforce the law "as written"--to the extent there is even a meaningful difference between these two functions. Jerry Mashaw has underscored the critical need for empirical work on these matters: "Inquiry into the empirical realities of agency interpretive practice can provide a crucial window on these issues and an essential step in the assessment of the legitimacy of administrative governance." (17)

To better understand the empirical realties of statutory interpretation inside the administrative state, this Article reports the findings of a 195-question survey of agency rule drafters that covers a variety of topics related to agency rule drafting and statutory interpretation. (18) The survey is modeled on the pathbreaking empirical work Lisa Bressman and Abbe Gluck have conducted on congressional drafting, though it differs in substantial respects. (19) The author administered the survey during a five-month span at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (the Federal Communications Commission and the Federal Reserve). Responses were received from 128 agency officials whose primary duties included statutory interpretation and rulemaking (for a thirty-one percent response rate). Although agency concerns for confidentiality placed methodological constraints on the study--including anonymity as to the individual respondent and the respondent's respective agency--the findings shed considerable light on agency rule drafting and the role of the canons, legislative history, and administrative law doctrines in agency statutory interpretation.

The Article proceeds as follows: Part I provides an overview of the empirical study. Part FA defines the scope of the study and situates it within the existing literature as the first comprehensive investigation into agency statutory interpretation. Part LB then details the survey methodology and its limitations, with Part I.C introducing the background of the survey respondents. Part I.D concludes by providing a 10,000-foot view of the survey findings--comparing the interpretive tools explored in this survey based on the rule drafters' reported familiarity with and use of those tools.

Part II presents the findings regarding the fifty-four questions asked about the rule drafters' familiarity with and use of the canons of interpretation. The canons are considered by many to be key indicia of interpreter fidelity because they purport to reflect the meaning of the statutory language (semantic canons) or at least what the words should mean in light of background principles (substantive canons). The rule drafters were generally more familiar with the semantic canons by concept than by name, and this was particularly true of the canons with Latin names. Of the ten semantic canons covered in the survey,

those most reported as used in interpretation are two pairs of related principles: the whole act rule and consistent usage canon; and noscitur a sociis (associated words canon) and ejusdem generis (residual clause canon). The ordinary meaning canon was another clear winner. By contrast, two related canons were generally known by name but rejected in practice: the whole code rule and in pari materia (similar statutory provisions should be interpreted similarly). These findings are similar in many respects to those in the Bressman and Gluck study on congressional drafters, including the conclusion that dictionaries are not used when drafting. (20) But they also challenge some of those findings. The agency rule drafters, for instance, reported that they were more than twice as amenable to using a dictionary when interpreting as opposed to when drafting.

Part II.B turns to the substantive canons. The federalism canons--the presumptions against preemption of state law and against the waiver of state sovereign immunity--were the most known by the agency rule drafters surveyed of the six substantive canons covered, followed by constitutional avoidance. The agency rule drafters' reported use of the substantive canons, however, was substantially lower, with the presumption against preemption the only one reported as being used by more than a third of the rule drafters. These findings of varied awareness and usage add to the ongoing debate about the role substantive canons should play in agency statutory interpretation (and subsequent judicial review).

Part III explores the findings from the thirty-five questions on legislative history and the role of federal agencies in the legislative process. With respect to the legislative process as discussed in Part III.A, nearly four in five rule drafters reported that their agencies always or often participate in a technical drafting role of statutes they administer, whereas three in five indicated that their agencies similarly participate in a policy or substantive drafting role. The rule drafters reported that their personal participation in the legislative process was less involved, though still significant. The lower personal participation may be...