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

• Author: Bressman, Lisa Schultz
• Position: Part 2 - I. Summary of the Study and Key Finding in the First Article through II. Unappreciated Structural Influences and Variety - and Their Implications for the Leading Interpretive Paradigms B. Statutes Are a 'They' and Not an 'It,' Too 2. The Stages of the Process Matter, p. 725-763

1. SUMMARY OF THE STUDY AND KEY FINDINGS IN THE FIRST ARTICLE II. UNAPPRECIATED STRUCTURAL INFLUENCES AND VARIETY--AND THEIR IMPLICATIONS FOR THE LEADING INTERPRETIVE PARADIGMS A. Interstaff Differences and the Disconnect Between Text and Policy 1. The central role of Legislative Counsel a. Legislative Counsel as the primary drafters of text; others as the primary makers of "policy " b. Implications of the Legislative Counsel story for a text-focused approach c. The limitations of Legislative Counsel as a bridge between Congress and courts i. Legislative Counsel lacks its assumed doctrinal expertise ii. Legislative Counsel's inability to be the coordinating arm--"the OIRA of Congress" 2. Committee jurisdiction as a fundamental organizing and interpretive principle a. Committees as drafting "silos" i. Different drafting practices and manuals ii. Different hiring practices: nonpartisan staff, lawyers, nonlawyers b. Committee turf guarding as a key interpretive presumption 3. Other staff differences: leadership vs. committee vs. personal staff a. Personal staff: often young, nonlawyers, and with different goals b. Drafting by leadership--dealmaking over policy or clarity B. Statutes Are a "They" and Not an "It," Too 1. The type of statute matters: omnibus vs. appropriations vs. ordinary bills 2. The stages of the process matter 3. The Congressional Budget Office as a case study in additional structural influences III. DELEGATION AND DIALOGUE A. Agencies as Statutory Interpreters B. Interpretation as Implementation--Implications for both Agencies and Courts C. Implications for Chevron D. No Partnership with the Courts 1. "Congress never wants courts to decide" 2. "It's a dance as long as we all know the steps" 3. Consistent rules do not have to reflect how Congress drafts IV. THEORETICAL AND DOCTRINAL IMPLICATIONS A. Directions for the Courts 1. For the current paradigm: a reorientation around structural and process-related influences a. Committee jurisdiction, type of statute, process, and the CBO--some examples i. Limitations and implications for textualism and purposivism ii. A defense of the current approach as a "best effort" without Congress's help 2. Alternatives to a Congress-reflecting approach a. Rule of law b. Transferring authority to agencies B. Congress's Share 1. Coordination and standardization through leadership 2. Change internal drafting norms to reflect judicial practice 3. Look to Congress for more direction when delegating to courts and agencies? 4. Do courts really want an interpretive dialogue with Congress? C. It's Happening: The Court Already Quietly Tailors Interpretive Rules to Particular Circumstances CONCLUSION Is the goal of statutory interpretation to reflect how Congress actually drafts legislation? Is such an accomplishment possible? Would courts actually desire it? Where would the responsibility lie--with the Court, Congress, or both--to effectuate it?

   The most common iterations of legislation and administrative-law theory view the goal of interpretive doctrine as reflecting congressional practice or expectations. Alternative theories have posited different roles for doctrine, less tethered to the details of how Congress works, including providing predictable coordinating rules for the legal system, or rules that assist judges, as partners of the legislature, in effectuating broad statutory purposes. Each of these theories, however, relies in different ways on empirical assumptions that appear mistaken. Each also presupposes the existence of some kind of Court-Congress interpretive relationship that does not seem to exist.

   This is the second of two Articles relaying the results of the most extensive survey to date of 137 congressional drafters about the doctrines of statutory interpretation and administrative delegation. The first Article focused on our respondents' knowledge and use of the interpretive principles that courts apply. (1) This second Article moves away from the judicial perspective. We focus here instead on the many other influences that our respondents told us have more relevance to the drafting process than most of the Court's interpretive rules. We also explore the implications of our respondents' views about delegation to courts and agencies, and their expectations of the Court-Congress relationship.

   Our findings highlight the overlooked legislative underbelly: the personnel, structural, and process-related factors that, our respondents repeatedly volunteered, drive the details of legislative drafting. They also paint a picture of legislative staffers in a primary interpretive conversation with agencies, not with courts, and as using different kinds of signals for their communications with agencies than the signals courts consider. At the same time, our respondents were in some ways as court-centric as interpretive doctrine has been: they identified the need for more Court-Congress coordination, but put the entire onus on courts to deliver it, rather than viewing Congress as also responsible for the interbranch gap.

   Most of the personnel, structural, and process-related influences that our respondents emphasized have not been recognized by courts or scholars; but understanding them calls into question almost every presumption of statutory interpretation in current deployment. For example, our respondents told us that statutes are sometimes drafted in contorted ways to guard committee jurisdiction and agency oversight; that committee staff, leadership staff, Legislative Counsel, and personal staff all draft statutes, but that each type of staff has different goals and varied drafting practices; that legislative history plays different roles in omnibus, appropriations, and single-subject legislation; that the congressional budget score has an enormous impact on statutory language; and that whether a statute goes through committee or not--and which committee--should affect the interpretive presumptions applied.

   The committee system and the varied roles and practices of different types of staff emerged as central organizing features. The division of Congress into committees causes deep fragmentation that not only defeats common presumptions of textual consistency, but also drives decisions about delegation to agencies. With respect to the importance of personnel differences, for example, we uncovered an unappreciated disconnect between those staffers who help elected members make policy and draft legislative history, and the nonpartisan, professional staffers who are not directly accountable to members but nevertheless often take the primary role in drafting the actual text.

   These findings have significance for textualism, purposivism, and beyond. They undermine the current democracy-based claims of each theory, because none makes satisfactory efforts to really reflect congressional expectations. Our findings challenge textualism's operating assumption that text is always the best evidence of the legislative bargain and suggest more relevant--but still formalist--structural features that might do better. Our findings further reveal that although purposivists or eclectic theorists may have the right idea with a more contextual approach, many of the factors on which purposivists and eclecticists focus are not the same ones that Congress utilizes. With respect to delegation, for both types of theorists, Chevron now seems too text- and court-centric, in light of our findings, to actually capture congressional intent to delegate, although that has been its asserted purpose. And our respondents' strong resistance to any notion that Congress intends to delegate interpretation to courts raises the difficult question for partnership and pragmatic theorists about whether the democratic legitimacy of those approaches depends on Congress's assent.

   Different obstacles present themselves from Congress's side. Foremost are the new questions that we raise about whether Congress has obligations in this interbranch conversation, and how those obligations could be effectuated or enforced. If the democratic legitimacy of the interpretive effort depends on Congress's engagement in some way with judicial statutory interpretation--be it by overriding erroneous decisions, standardizing drafting practices to make them more transparent to courts, or otherwise altering its drafting practices to respond to judicial assumptions--how can Congress be incentivized to address existing barriers to such efforts, especially given its deep internal structural fragmentation? Relatedly, can we really fault courts for coming up short in their efforts at statutory translation if Congress has not offered substantial assistance? At the same time, we have doubts, notwithstanding the ubiquitous judicial embrace of the concept, that courts would really want Congress to be, if it could, an engaged principal, partner, or system co-coordinator in the first place.

   Part I summarizes the study design and the key findings of the first Article. Part II relates our findings about the personnel, structural, and process-related influences that our respondents emphasized. In Part III we move to delegation, exploring the implications, both for Chevron and for interpretive theory in general, of our respondents' assertions that their primary interpretive partners are agencies not courts, but that they nevertheless want the courts to coordinate with Congress.

   Part IV explores the broader implications of the findings. We begin with the obvious question: namely, given that legal doctrine cannot possibly reflect all of the intricacies of the legislative process that our study uncovered, should such a reflective theory still be the goal if it must be partially incomplete? To that end, we explore the two most commonly offered alternatives to the reflective paradigm that are less trained on the details of congressional practice: a "rule-of-law" model that sees the goal of interpretive doctrine as facilitating...