Administrative agencies regularly interpret statutes in the course of rulemaking, but there is little data about how they go about interpreting those statutes. Do the rulemakers rely on canons of interpretation? Do they look at legislative history? These questions are important for many reasons, one of which is whether agencies act as faithful agents of Congress in implementing statutes through rules. In a recent article published in the Stanford Law Review, Chris Walker provides some answers to these important empirical questions. The article is great and available here.
Chris often summarizes recent scholarship on this blog, but he is far too modest to endorse his own work, so I have taken up the mantle on this occasion.
Chris sent a survey to rule drafters at seven executive agencies and two independent agencies. The survey asked 195 questions about the drafters’ approach to statutory interpretation. The results of are illuminating. I don’t have space to report all the results of the survey, but I will hit some of the highlights.
Most rule-drafters employ several semantic canons—rules of thumb to figure out what statutes mean—such as that the same words in the same act (and even more so, same provision) should be interpreted the same way. But they disagree on using other semantic canons. For example, less than half the drafters use expressio unius est exclusion alterius. So too, less than half the drafters employ any substantive canons―background principles against which words should be interpreted―such as the presumption against preempting state laws and constitutional avoidance. Needless to say, these findings about canons should be extremely useful for letting statute-drafters know how rule-drafters read their statutes.
Another interesting result of the survey is that most drafters said they use legislative history in interpreting statutes. They use it to understand the purpose of the statute and to understand the meaning of a particular statutory term. Moreover, they discriminate among legislative history sources in the same way as courts by, for example, affording more weight to committee reports than to floor statements by non-sponsors. These findings should also be quite useful to members of Congress and their staff who want to provide additional information to rule-drafters.
Another set of findings relates to the scope of interpretive authority. Almost all the drafters said that they think that, by charging an agency to administer a statute, Congress means to delegates interpretive authority over ambiguities in statutory details, but there is disagreement about whether Congress intends to delegate authority over major policy issues. These findings give useful indicators to statute-drafters about what types of cues should be included in statutes to let rule-drafters know that their interpretations will be binding.
This summary just scratches the surface. There is a lot more in this article, and I recommend it to anyone with an interest in administrative law.