Abbe Gluck & Lisa Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901 (2013).
This coming year marks Chevron’s 30th anniversary. Westlaw reports that Chevron has been cited in over 66,000 sources, including in nearly 13,000 articles. Despite the ink already spilled, until now no one had empirically investigated the core assumption underpinning Chevron deference—that Congress actually intends to delegate interpretative authority to federal agencies when it leaves ambiguities in statutes the agencies administer.
Professors Abbe R. Gluck and Lisa Schultz Bressman recently sought answers to this question (and many others). They interviewed 137 congressional counsels, asking them 171 questions about the canons, legislative history, and administrative law doctrines. Their findings will appear in a two-part series in the Stanford Law Review. The 125-page part one was just published, along with a methods appendix, and there is a lot to like about this piece.
Because this is Jotwell’s Administrative Law Section, I’ll focus on the administrative law findings (Part IV). But for those (like me) who also teach legislation, the findings on Congress’s use of various interpretative tools are well worth a read. As set forth in a table perfect for classroom use, congressional drafters did not know many of our favorite Latin canons (expressio unius, noscitur a sociis, ejudsem generis) by name but actually used them in practice. Other court-created tools were well known but ultimately rejected. For instance, more than 50% said dictionaries were never or rarely used to determine what terms to use in statutes; as one drafter put it, “no one uses a freaking dictionary.” (I remain curious about the distinct and unasked question whether congressional drafters think courts should consult dictionaries to help discern the meaning of statutory terms.)
Gluck and Bressman asked 45 questions about administrative law. Chevron, it turns out, was the most known, by name, of any canon in the study. In other words, the overwhelming majority (82%) of drafters are aware of—and thus legislate against—this background principle. Of those interviewed, 58% said Chevron plays a role when drafting; 31% indicated in comments that statutory ambiguity results in judicial deference to agency interpretations; and 29% reported that Chevron forces them to think about how precisely to draft. Nine in ten (91%) stated that one reason for statutory ambiguity is to delegate decision-making to agencies, with lack of time (92%), complexity of issue (93%), and need for consensus (99%) being other predominant reasons. Gluck and Bressman conclude that Chevron deference is not the reason drafters leave ambiguities; instead, the reasons mirror those articulated in Chevron—delegation of decision-making, implementation, expertise, etc. Notwithstanding, Chevron forces agencies to think more about delegation and precision in drafting.
Mead is a different story. Unlike Chevron’s 82% name recognition, only 28% knew Mead by name. Yet, by concept, Gluck and Bressman conclude that Mead was a “big winner,” in that 88% indicated that the signal emphasized in Mead—authorization of notice-and-comment rulemaking—is always or often relevant to whether drafters intend for an agency to have interpretative authority. In other words, contrary to Justice Scalia’s Mead dissent, Congress’s authorization of agency rulemaking or formal adjudication may be one of the stronger signals of its intent to delegate interpretative authority to agencies. (To be sure, Justice Scalia has made clear—most recently this Term in City of Arlington v. FCC—that procedural formality is a sufficient, though not necessary, signal for deference.)
Speaking of City of Arlington, Gluck and Bressman asked drafters if they delegate major policy questions to agencies. Confirming Justice Scalia’s intuition that Congress does not “hide elephants in mouseholes,” more than 60% said Congress does not intend to delegate major policy questions. Gluck and Bressman provide another classroom-ready chart to illustrate the types of ambiguities drafters intend agencies to fill—with implementation details (99%) and areas of agency expertise (93%) leading the way and major questions garnering less than 40%. The survey did not ask whether drafters intend to delegate by ambiguity authority for agencies to determine the scope of their own statutory jurisdiction—the question City of Arlington answered in the affirmative. But based on their responses regarding major questions, it is probably sensible to infer that congressional drafters would take issue with the majority’s conclusion in City of Arlington.
Gluck and Bressman uncover many other insights, including how Congress deals with multiple federal agencies, federal/state agency interaction, and longstanding agency interpretations. But I’ll conclude with legislative history. As I have explored elsewhere, courts and scholars have long debated which (and when) interpretative tools should be used under Chevron. For instance, many judges use legislative history at Chevron step one to determine the meaning of ambiguous terms. This study’s findings suggest alternative uses. In particular, 94% of drafters indicated that one purpose of legislative history is to shape the way agencies interpret statutes, and 21% described it as a mechanism for agency oversight. Gluck and Bressman suggest that these findings support the use of legislative history “as a relevant signal of delegation” (perhaps at step zero or one). That’s not an unreasonable conclusion. If a main purpose of legislative history is to shape agency interpretation (beyond shedding light on ambiguous terms), however, there may be a stronger argument that it is best used at Chevron step two to ascertain the reasonableness of an agency’s interpretation.
In all events, to borrow a line from Justice Scalia, “[i]t is indeed a wonderful new world that the [Gluck and Bressman study] creates, one full of promise for administrative-law professors in need of tenure articles and, of course, for litigators.” I, for one, am following their lead and surveying agency rule drafters to explore their understanding and use of various interpretative tools and administrative law doctrines in the rulemaking process. I look forward to reading part two of their study when published later this year.