Christopher Walker on What Do Regulatory Drafters Do

Regular readers will know that I have no fondness for the idea that the “common objective” of courts and administrative decision-makers is the proper application of the principles of statutory interpretation.

In part, my position is that it is unrealistic to expect administrative decision-makers to apply these principles. Some empirical doubt is cast on that position by a recent paper by Christopher Walker, “Inside Agency Interpretation“:

The Constitution vests all legislative powers in Congress, yet Congress grants expansive lawmaking authority to federal agencies. As positive political theorists have long explored, Congress intends for federal agencies to faithfully exercise their delegated authority, but ensuring fidelity to congressional wishes is difficult due to asymmetries in information, expertise, and preferences that complicate congressional control and oversight. Indeed, this principal-agent problem has a democratic and constitutional dimension, as the legitimacy of administrative governance may well depend on whether the unelected bureaucracy is a faithful agent of Congress. Despite the predominance of lawmaking by regulation and the decades-long application of principal-agent theory to the regulatory state, we know very little about how federal agencies interpret statutes much less whether they are faithful congressional agents.

This Article looks inside this black box of agency statutory interpretation. The Article reports the findings of a 195-question survey of agency rule drafters at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (Federal Communications Commission and Federal Reserve). Of the 411 officials sent the survey, 128 responded, and their responses shed considerable light on the tools and approaches they use to interpret statutes and draft regulations. The findings uncovered both challenge some theories on agency interpretation while reinforcing others. As Congress, courts, and scholars gain more insight into how federal agencies use the canons, legislative history, and judicial deference doctrines in agency statutory interpretation, the principal-agent relationship between Congress and federal agencies should improve, as should the judicial branch’s ability to monitor and faithfully constrain lawmaking by regulation.

Here is an overview of the survey:

This study does not attempt to take sides on which is the appropriate approach for assessing fidelity in agency statutory interpretation. Instead, it explores a variety of different metrics, which can be grouped in three broad categories: (1) awareness and use of the canons of statutory interpretation, which judges have developed and utilize in part based on faithful agent theories (Part II); (2) awareness and use of legislative history and related legislative-process tools (Part III); and (3) awareness and use of administrative law doctrines that may reflect when and how much discretion Congress (the principal) intends to delegate to a federal agency (its agent) (Part IV). How these interpretive tools and doctrines may measure agency fidelity is explored in more detail in the relevant parts of the Article on each set of tools.

The agency rule-drafters surveyed by Walker generally had a very high level of knowledge of these technical legal principles. From the conclusion:

The findings reported in this Article shed unprecedented light on the black box that is agency statutory interpretation. It turns out that the rule drafters surveyed knew the canons of interpretation and administrative law doctrines as well as, if not better than, their congressional counterparts surveyed in the Bressman and Gluck study. Moreover, the findings suggest that federal agencies play a critical role in the legislative process such that the rule drafters have the intimate understanding of legislative history that Professor Strauss hypothesized nearly a quarter century ago. The study’s findings also provide an unprecedented window into how federal agencies view themselves as faithful agents of Congress as well as the role of courts in this relationship—at least from the viewpoint of the agency rule drafters surveyed. In sum, the rule drafters surveyed perceived the principal-agent relationship with Congress, where federal agencies—not courts—are the primary interpretive agents but courts play a meaningful oversight role, such that rule drafters often think about subsequent judicial review when interpreting statutes.

This is an excellent study, though as Walker acknowledges it raises many questions. An interesting one for me is how decision-makers resolve conflicts between agency objectives and interpretive principles. What weight are the principles of statutory interpretation given by rule-drafters (and their non-lawyer superiors) when they conflict with policy goals? Indeed, as a general matter, are the prescriptions of rule-drafters generally accepted by their superiors, or are they revised to cohere with the agency’s general orientation? One might also ask, in relation to my ‘realism’ point, whether all decision-makers have the same expertise as the rule-drafters surveyed for this paper. In systems where front-line decision-makers have interpretive authority they are (I hypothesize) likely to have less technical prowess in statutory interpretation.

This content has been updated on October 21, 2014 at 10:07.