Statutory interpretation from the inside - an empirical study of congressional drafting, delegation, and the canons.

• Author: Cluck, Abbe R.
• Position: Part 1 - Introduction through II. Congress and the Canons C. Substantive Canons, p. 901-948

INTRODUCTION I. THE STUDY AND WHY IT MATTERS A. Faithful Agency, Fictions, and Empirics in Statutory Interpretation 1. Fictions 2. Previous empirical work B. Methodology: Our Survey of 137 Congressional Staffers II. CONGRESS AND THE CANONS A. Overview of the Findings: A Spectrum of Canon Knowledge and Use B. Textual Canons: More Familiarity by Concept than by Name 1. Concepts in use: expressio, noscitur, and ejusdem 2. Canons known, but rejected: superfluities, consistent usage, and dictionaries a. Superfluities: redundancy to satisfy political stakeholders b. Committee jurisdiction and "unorthodox lawmaking" as barriers to the whole act and whole code rules c. "No one uses a freaking dictionary" C. Substantive Canons 1. Federalism, preemption, and clear statement rules a. A partial courts-Congress feedback loop for federalism and preemption b. The irrelevance of clear statement rules 2. Lenity unknown by name 3. Constitutional avoidance unknown but assumed D. Do the Data Matter? Linking the Findings with the Normative Justifications for the Canons 1. Textual rules as approximation canons and rejected canons a. Expressio, noscitur, and ejusdem as approximation canons b. Superfluities, consistent usage, and dictionaries as rejected canons 2. Substantive canons: disconnected, approximation, and feedback canons a. Different types of disconnected rules: lenity and clear statement rules b. Avoidance as approximation c. Federalism, preemption, and a "due process of lawmaking" feedback loop E. Alternative "Rule of Law" Justifications: Coherence, Coordination, and "Interpretive Activism" III. LEGISLATIVE HISTORY A. Legislative History-Specific Delegation Concerns About Staff and Committees Appear Unfounded B. A Textualist Approach Is Not Likely to Diminish the Production or Importance of Legislative History Because Legislative History Plays Many Other Roles 1. Legislative history as a tool for congressional oversight of agencies 2. Legislative history as intracongressional communication 3. Legislative history as political communication with the public 4. Legislative history as a vehicle for details that are inappropriate for statutory text C. Legislative History as Evidence of Congressional Intent 1. The centrality of committee-produced legislative history 2. Unorthodox lawmaking's relevance: distinguishing party leader, omnibus, and appropriations legislative history 3. Other factors: staffer involvement, timing, opposition, and centrality to the bargain a. Staff drafts everything but is not unaccountable b. Timing affects the reliability of legislative history c. Additional considerations volunteered by our respondents: personal and reputational factors, colloquies, and markups D. Conclusion: Smarter Judicial Use of Legislative History IV. THE ADMINISTRATIVE LAW CANONS A. Chevron and the Presumption of Delegation 1. Chevron is a feedback canon 2. Chevron is not a reason for ambiguity B. Mead and Other Signals of Delegation as Reasonable Approximations 1. Barnhart, agency participation in drafting, and divided government: substantiated but with qualifications 2. Different subject matters also validated with nuances 3. Major questions, preemption questions, and the obligation not to punt C. More than One Federal Agency and State Implementers of Federal Law 1. Multiple federal agencies and new linguistic conventions of delegation 2. Delegation to state agencies implementing federal statutes D. Theoretical and Doctrinal Interventions 1. Chevron Step One 2. The obligation not to punt difficult questions in broader context CONCLUSION: COMPARING THE CANONS, THE ENDURING ALLURE OF FAITHFUL AGENCY, AND CONGRESS AS "FAITHFUL PRINCIPAL" A. Comparing Canons B. The Allure of Faithful Agency and Judicial Reluctance to "Make Law". C. Canons as Collective Knowledge, the Shifting Effect of Legal Education, and the Potential for a Dynamic Interpretive Regime D. A Normative Framework for Congress's Side of the Relationship: Congress as "Faithful Principal"? METHODS APPENDIX http://www.stanfordlawreview.org/sites/default/files/Gluck_Bressman Stan._L._Rev._Methods_Appendix.pdf. INTRODUCTION

Judge Jones, a strict textualist, is interpreting an appropriations statute. He knows that, unlike other statutes, appropriations bills place most key directives in the legislative history rather than in the enacted text. Should the judge depart from his normal practice and consider legislative history?

Judge Smith is interpreting the term "work," which appears several times throughout a statute that she has learned was drafted in different parts by seven different congressional committees. Should the judge apply the usual "whole act rule" of interpretation, which presumes that words are used consistently throughout statutes?

Judge Jacobs is reviewing Agency A's interpretation of an ambiguous statute. He has information that insiders tell him counsels against deferring to A's interpretation, namely, that the Secretary of A has a bad reputation inside of Congress. Should the judge take this factor into account?

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? Although the past several decades have seen exhaustive debates about how courts and agencies should interpret federal statutes, almost no empirical work has been done to shed light on the relationship, if any, between the theories and doctrines of the fields and the actual statute-creating process.

From a theoretical perspective, the relevance of the realities of legislative drafting depends entirely on the answer to another fundamental question: namely, what is, or should be, the objective of the so-called "canons" of statutory interpretation, the default presumptions that judges apply to interpret ambiguous statutes? There are many possible normative frameworks judges could use to answer this question. Judges might believe that the canons reflect how Congress actually drafts, and therefore that applying them effectuates legislative supremacy. Or judges might use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely or in other ways that judges think would be preferable. Or the canons might be understood to effectuate judicial responsibilities that are essentially external to the legislative process--such as advancing constitutional values or furthering the "rule of law" by coordinating systemic behavior or imposing coherence on the U.S. Code.

Deciding which (or how many) of these objectives should be the goal is a foundational inquiry that goes to the nature of the courts-Congress relationship and the scope of the judicial power. But there has been some profound imprecision with respect to how this inquiry has been addressed. Most practicing judges claim allegiance to an exceedingly general model of the judge as a "faithful agent" of the legislature, and that model has been deployed to justify an enormous number of canons that seem to be doing very different types of work. There is arguably a major difference, for instance, between a theory of the judicial role in statutory interpretation that grounds its legitimacy in whether it is accurately reflective of congressional practice and one that, instead, aims to change how Congress itself deliberates and drafts. And there is perhaps an even greater difference between those visions and one grounded in the view that judges have an obligation to impose coherence on the U.S. Code, even where imposing such coherence achieves results never intended by its drafters. Allegiance to the faithful-agent model also often translates to claims that interpretive methods reflect actual congressional practice---claims at odds with the admission by most judges and scholars that many of the canons on which they rely are "fictions." (1)

This Article offers the most extensive empirical study to date about this intersection of statutory interpretation, administrative law doctrine, and the process of legislative drafting. Over five months in 2011 and 2012, we interviewed 137 congressional counsels with responsibilities over drafting legislation. (2) We surveyed counsels, rather than elected members of Congress, for several reasons, which we elaborate in Part I. Most importantly, current doctrine makes assumptions about what legislative drafters know, and it is widely acknowledged (and our study confirms) that members do not do the actual drafting. Interpretive doctrines designed to reflect how members actually participate in the drafting process would look very different, and certainly less text oriented, than the ones that we currently have. Moreover, doctrine rarely grapples with the role of staff, and judges often make assumptions about staff accountability to members in the drafting process that have never been empirically verified.

Our respondent-counsels were approximately equally divided between the House and the Senate, both political parties, and whether they worked for members in the majority or the minority in each legislative body. (3) They worked on twenty-six different committees, as well in as the professional drafting offices known as the Offices of House and Senate Legislative Counsel. Every survey consisted of the same 171 questions, (4) which covered topics ranging from the role of canons such as the presumption against preemption, expressio unius, and Chevron (5) deference, to legislative history, the legislative process, and the way that staffers perceive the responsibilities of courts and agencies in statutory interpretation. In addition, our survey provided unlimited opportunities for qualitative explanations. Our respondents used those opportunities not only to provide more texture to their responses, but also to highlight important influences in the drafting process not captured by our questions or legal doctrine.

Our findings shed light on some of the key debates of both fields. They...