Agencies routinely interpret statutes while drafting rules. Yet very little is known about how agency rule drafters approach statutory interpretation when writing rules. In a fascinating article that was recently published in the Stanford Law Review, Professor Christopher J. Walker shines some much needed light into this area.
Walker’s article is modeled off of important empirical work Lisa Bressman and Abbe Gluck previously conducted that studied congressional drafters’ knowledge of and use of different administrative law doctrines and interpretive tools. Rather than focusing on congressional drafters as Bressman and Gluck already have done, Walker’s article focuses on how agency rule drafters approach statutory interpretation when writing rules. Walker’s article reports the findings of a detailed 195-question survey that he administered online over a five-month period to agency rule drafters who work at seven executive agencies (Agriculture, Commerce, Energy, Homeland Security, Health & Human Services, Housing & Urban Development, and Transportation) and two independent agencies (the Federal Communications Commission and the Federal Reserve). Walker sent the survey to 411 agency officials within these agencies, and 128 responded, resulting in a 31 percent response rate. All of the survey respondents were career civil servants rather than political appointees.
As Walker himself admits (pp. 1014-15), the generalizability of his survey results may be limited for a variety of reasons, including the mix of agencies included in the survey. Yet, even if Walker’s findings merely present a descriptive picture of how the 128 survey respondents approach agency rule drafting, Walker’s detailed findings are well worth a close read. They provide an illuminating look into the agency rule drafters’ knowledge of and use of different interpretive tools, including substantive and semantic canons of construction, legislative history, and administrative law doctrines. Walker’s findings, for example, reveal the following: 94% of the agency rule drafters who responded to the survey reported knowledge of Chevron and 90% reported using Chevron as an interpretive tool; 62% reported knowledge of the canon of constitutional avoidance and 28% reported using constitutional avoidance as a tool of statutory interpretation; and only 19% reported using dictionaries as a drafting tool.
Of all of Walker’s findings, I was most interested by his findings relating to agencies’ involvement in the legislative process—largely because his findings in this arena are useful in assessing longstanding application of principal-agent theory to the regulatory state. In the context of studying federal agencies’ involvement in the legislative process, Walker found significant involvement by agencies: “Nearly eight in ten [of the rule drafters who responded to the survey] (78%) indicated that their agency always or often participates in a technical drafting role for the statutes it administers (with another 15% indicating sometimes).” (p. 1037) Yet Walker found that personal participation rates in the legislative process by agency rule drafters themselves were much lower; only “29% always or often participate in technical [legislative] drafting with 29% more saying sometimes.” (p. 1037) As Walker notes, this difference between agency participation and agency rule drafter participation in the legislative process may well have to do with agencies’ organizational choices that call on different staffs to do legislative versus regulatory work.
Notably, any legislative-regulatory separation within agencies’ organizational structures did not prevent the agency rule drafters from recognizing the relevance of legislative history: 76% of survey respondents agreed that, “in general, legislative history is a useful tool for interpreting statutes.” (p. 1038). Yet, when viewed through the lens of the principal-agent theory, this kind of structural separation between agencies’ legislative and regulatory staffs would seem to make it difficult for agencies to draw on their expert insights about legislative meaning and legislative purpose when drafting rules. Walker quite astutely points this out (p. 1047), inviting future scholarly investigation in this area. Hopefully other scholars’ will accept Walker’s invitation and will explore whether structural choices within agencies might either help or hinder an agency’s ability to act as a faithful agent of Congress when drafting rules. These kinds of structural questions need additional scholarly attention moving forward, and Walker is to be thanked for beginning to shine some light into this previously dark corner of the regulatory world.