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

• Author: Cluck, Abbe R.
• Position: Part 1 - IV. The Administrative Law Canons A. Chevron and the Presumption of Delegation 2. Chevron Is Not a Reason for Ambiguity through Conclusion, with footnotes and Appendix, p. 996-1025

2. Chevron is not a reason for ambiguity

   Our respondents did not strongly identify Chevron as an affirmative reason to leave an ambiguity. They told us that decisions to leave statutory terms ambiguous are typically made without regard to whether the courts will later defer to an agency interpretation. Almost half of our respondents (45%) expressed agreement with the statement that the deference rules allow drafters to leave statutory terms ambiguous because they know that agencies can fill the gaps. But 15% of that 45% (and 28% of all 137 respondents, including some respondents who did not agree with this statement about the deference rules) offered comments specifically directed at resisting the notion that Chevron itself was the reason that drafters leave aspects of statutes ambiguous. They stated, for example, "it's about punting to the agency and not about Chevron in particular, but you do know the agency can fill the gaps." (346) To be sure, respondents were quick to acknowledge the prevalence of ambiguity in statutes, and 91% reported that one reason for statutory ambiguity is a desire to delegate decisionmaking to agencies. (347) But an even greater number of our respondents also identified reasons apart from and unrelated to Chevron that account for statutory ambiguity, including lack of time (92%), the complexity of the issue (93%), and the need for consensus (99%). (348) "It's not because courts give deference," one explained, "but it's often intentional for other reasons. There are multiple reasons that statutes are ambiguous, sometimes political, getting consensus, sometimes quite intentional because regulators have the expertise and things get worked out better by the agency." (349) These are the reasons for ambiguity that the Court identified in Chevron; it appears that those remain the reasons for ambiguity. In other words, for our respondents, Chevron does not appear to have increased the likelihood of ambiguity or its use as an additional signal that drafters were not using before the Court's decision.

   What we take away from these findings is that Chevron now seems to be a relatively fixed point in many of our respondents' drafting practices, but that the doctrine's assumptions are not entirely reflective of their intent. While most of our respondents indicated that they would think about agency delegation even in the absence of these canons, our data suggest that Chevron itself encourages more thought about the questions at issue and how specific statutes should be. At the same time, for our respondents, Chevron itself does not seem to be a typical reason for ambiguity. Rather the reasons for ambiguity remain those that the Court identified in Chevron.

   We note a parallel to our observation about dictionary use. We did not ask respondents how they signal ambiguity or how they would define "ambiguity" if asked. Given that the Court has recently used the Chevron doctrine in cases concerning the meaning of words such as "charge," "percentile," and "student," (350) it seems unlikely here too that even those drafters who would use ambiguity as a signal would always--or often--be able to predict which words will ultimately become the cause of dispute. One reason this concern may not have received much previous attention is because most judges and scholars have assumed that Chevron's primary assumption--that Congress uses ambiguity to signal delegation--is a fiction in the first place. But our findings indicate that at least some staffers do seem to draft in Chevron's shadow. The potential feedback loop that we have identified faces an obstacle, however, if the length of Chevron's shadow is ultimately unpredictable.

   2. Mead and Other Signals of Delegation as Reasonable Approximations

   As mentioned above, our drafters were not familiar with Mead by name, undermining any argument that Congress has "received the message" of what the Court is looking for in that decision. The remaining question is whether it is otherwise a reasonable approximation of how Congress delegates. Mead has been subject to unrelenting attack, beginning on the very day that it was issued. Justice Scalia wrote a scathing dissent, arguing that Mead rests on a fiction about the circumstances under which Congress delegates--a pernicious fiction, he said, because Mead does not simply establish a presumption of delegation as Chevron does, but calls for a particularized analysis of delegation that creates confusion and uncertainty. (351) Specifically, Mead fixates on certain signals that the majority of the Court presumed Congress employs when it delegates to agencies, such as the authorization and use of certain relatively formal procedures. (352) Scholars have joined Justice Scalia, arguing that the connection between interpretive authority and procedural formality is neither what Congress intends nor otherwise defensible. (353)

   This argument has formed a cornerstone in the debate about maintaining the Skidmore-Chevron-Mead trilogy as opposed to the binary Chevron-or-no-Chevron choice. (354) If we consider this issue based solely on familiarity with the doctrines, the vast majority of our drafters think in terms of a binary choice between Chevron and no Chevron, as Justice Scalia has been advocating, rather than in terms of the basic trilogy that the majority of the Court has embraced.

   But when we asked about the doctrines by concept, we saw a different picture entirely. Indeed, Mead was a "big winner" in our study--the canon whose underlying assumption was most validated by our respondents after Chevron: 88% told us that the authorization of notice-and-comment rulemaking (the signal identified by the Court in Mead) is always or often relevant to whether drafters intend for an agency to have gap-filling authority. (355) Of the small number (nine respondents or 7%) who said that the authorization of rulemaking authority is only sometimes relevant, four offered comments that still supported the Mead assumption. For example: "If an agency doesn't have rulemaking authority, they have less flexibility of interpretation," (356) and "Anything related to technology, you don't want to prescribe that an agency meets a specific goal to get performance standards. You leave it up to the agency.... Rulemaking authority is relevant." (357) Only one respondent said that the authorization of rulemaking was rarely relevant and none said it never was. (358)

   Moreover, our respondents did not qualify their endorsement of Mead's assumption in the same way that they qualified their endorsement of Chevron's. Whereas in the context of Chevron, they emphasized that not every statutory ambiguity signals an intent to delegate--that is, that Chevron assumes too much--they did not say the same about statutes that give rulemaking authority to agencies.

   Our respondents also substantiated, although not as overwhelmingly, the other signals of delegation that the Court and some scholars have identified. Figure 10, above, provides a summary, and we elaborate on these findings below. We note that some of the connections between our respondents' assumptions and the current doctrines are weaker than others; identifying these gaps may contribute to ongoing discussion of whether or how to streamline the doctrines to improve their judicial administrability.

1. Barnhart, agency participation in drafting, and divided government: substantiated but with qualifications

   In addition to Mead, the Court has articulated several other doctrines that make assumptions about what matters to Congress when it delegates. Foremost among these is Barnhart v. Walton, which presumes that Congress intends to delegate when there is a longstanding agency interpretation, even if that interpretation was not issued through formalized procedures. (359) We also asked about two factors that scholars have argued may be relevant to the delegation of interpretive authority--namely, the participation of the agency in drafting (an argument that one of us has advanced (360)) and the existence of divided government. (361)

   Sixty-six percent of our respondents told us that the longstanding nature or consistency of the agency's interpretation was relevant to their decision to delegate interpretive authority, 19% said it was sometimes relevant, and only 10% said it was never or rarely relevant. (362) With respect to the participation of the agency in drafting, half of our respondents thought that this factor was often or always relevant in the delegation of interpretive authority, 23% said that it was sometimes relevant, and 23% said that it was rarely or never relevant. (363) This is not to say that our drafters did not value agency participation in drafting; they told us that agencies often do participate in drafting and can be very useful partners in the drafting process. (364) Some simply qualified whether that participation is relevant to delegation.

   A substantial minority (40%) of our respondents also indicated that whether the same political party controls both Congress and the White House at the time of enactment is always or often relevant to whether drafters intend for an agency to have gap-filling authority, but 36% said sometimes and 22% said never or rarely. (365)

   All of these findings were more qualified, and more nuanced, than our findings with respect to Mead. For at least some of our respondents, each of these factors at times had precisely the opposite effect of encouraging delegation. Here, again, we saw the idea that personal familiarity with the agency staff or its positions affects drafting decisions. For instance, with respect to the Barnhart assumption, sixteen respondents (12%) made comments on the order of: "If you are writing something with a long history, you are hyper-aware of the agency view and you decide whether you want to change that"; (366) "It would depend on what that position has been and whether drafters intend to redirect or not"; (367) and "If an agency is...