Working with Statutes is a love letter to administrative agencies, and, if I may be so bold, to those of us who have been privileged to serve as their custodians.
Anya Bernstein and Cristina Rodriguez make a case for agency legitimacy rooted in loyalty, care, and – in my reading of their fine piece – affection. In contrast to the stereotype of the clockwatching bureaucrat, Bernstein and Rodriguez explain how agency staffers enthusiastically take on the mantle of caretaker, acting zealously to bring their law to bear on problems that fall under the congressional mandate. In this way – through the people who care for it – Congress ensures that a legislative program committed to an administrative agency remains efficacious across time and societal change.
Rejecting an approach that evaluates agency action through prisms of judicial review or legislative drafting, Bernstein and Rodriguez conduct a series of thirty-nine interviews with political and career appointees at eleven federal agencies to better understand agency authority from the inside out. From their extensive interviews, Bernstein and Rodriguez posit that agency superintendents’ commitment to a healthy statute is grounded in twin duties of loyalty and care to their administrative regimes. The duty of loyalty emanates from the agencies’ organic statutory text and the mission that flows from that text. The two are symbiotic: statutory language informs mission, and mission informs statutory construction. In this way, agency personnel distill their statutes to an “overarching set of values and objectives served by the regulatory regimes.” (P. 937.) These values allow agencies to identify problems that enter their statutes’ orbit and are appropriate for their administrative machinery to resolve through regulatory means.
If you’re loyal to a statute and committed to its mission as Congress intended, you’re going to approach potential solutions to problems arising under that law with care. And that’s the second duty Bernstein and Rodriguez identify: the duty of care. (You don’t break something you love.) In this way, “[a]gencies seek practicable paths to implement statutes in an admittedly provisional way, subject to adjustment down the line” and “ensure that their policy plans address[] lived experience, changing circumstances, and the goals and needs of the regulated public.” (P. 953.) Administering a statute carefully requires attention to democratic principles, an overriding concern identified by Bernstein and Rodriguez’s interviewees. So, in making policy, agency caretakers seek (and attempt to incorporate) input from Presidential leadership, public stakeholders, and Members of Congress and their expert staff. And they consider the federal courts, as they analyze the judiciary’s take on their statutes and evaluate litigation risk in policymaking. This is dynamic work that advances our democratic project. The loyalty and care demonstrated by committed public servants ballasts the administrative system and justifies respecting agency action as reflective of the polity’s priorities.
Congress presumably does not intend for its laws to be moribund; duties of loyalty and care propel robust agency action that advances legislative mandates over the shifting sands of time. As Bernstein and Rodriguez show, the allocation of primary responsibility to agency personnel to protect statutory relevance reflects the system Congress wanted. Agencies did not delegate power to themselves; rather, “delegation to agencies embodies the choice of the legislature itself.” Indeed, by the New Deal, Congress was no stranger to how agencies work. Especially after the enactment of the Pendleton Act of 1883 that established a merit-based civil service, Congress well understood that the people who execute a statute are the ones who “make it real,” as one of the paper’s interviewees commented. (P. 952.) It is no accident that the Constitution requires every federal employee to take an oath in which they promise to “faithfully discharge the duties of the office on which [they are] about to enter.” Statutory caretakers would violate their oath if they failed Bernstein and Rodriguez’s duties of loyalty and care.
I must confess that I am biased. For almost my entire 30-plus-year legal career, culminating in my current position as Solicitor of the National Labor Relations Board (although I write this in my personal capacity), I have been one of the agency caretakers Working with Statutes describes. As one who has taken that oath several times, I can attest that it is not merely performative. Reciting it aloud with your right hand in the air carries gravity, a commitment to yourself and all within earshot that you have accepted a solemn obligation to do your job meaningfully.
Working with Statutes reflects my lived experience as a caretaker of a venerable New Deal statute. And I see my dedicated colleagues in its pages. The laws we administer become mini-constitutions in themselves. Like a constitution, we owe the statutes Congress has entrusted us to administer faithful allegiance. That means that we strive to fulfill our commitment to keep the laws for which we are responsible vibrant and tangible in the face of new American realities. By urging an agency-centric view of administrative action, Working with Statutes encourages courts, academics, and the public to value civil servants’ dedication to statute and their respect for the rule of law as core to good government.
The views expressed in this post are solely those of the author and not those of the National Labor Relations Board or the United States Government.
