Notice & Comment

Legislating in the Shadows

Next week I’m taking my newest project—Legislating in the Shadows—on the road with a law faculty workshop at UNLV on Monday (1/25), and another law faculty workshop at the University of Utah on Wednesday (1/27).* Thanks in advance to the law faculties at UNLV and Utah for reading the early draft of the paper and taking the time out of your schedule to provide feedback at the workshop.

This project builds on my year-long empirical study for the Administrative Conference of the United States (ACUS) on the role of federal agencies in the legislative process, with a particular focus on technical drafting assistance. My final report was published in November with the recommendations adopted by ACUS in December (80 Fed. Reg. 78,161, 78,161-63 (Dec. 16, 2015)). The ACUS report is generally descriptive and practical in nature, and I am now turning to the more theoretical and normative implications of the findings. I’m not quite ready to share a draft of this paper publicly, but here’s the abstract:

Federal agencies are deeply involved in legislative drafting—both in the forefront by drafting the substantive legislation the Administration desires to submit to Congress and in the shadows by providing often-secret “technical drafting assistance” on legislation that originates from congressional staffers. This technical drafting assistance helps Congress avoid considering legislation that would unnecessarily disrupt the current statutory scheme by leveraging agency expertise on the subject matter. But it also allows the agency to play an active role in drafting legislation from the very early stages. In fact, the empirical findings presented in this Article, based on extensive interviews and surveys at some twenty federal agencies, suggest that agencies provide technical assistance on the vast majority of proposed legislation that directly affects them and on virtually all such legislation that gets enacted.

This previously unexplored yet widespread practice of agency legislating in the shadows has important implications for administrative governance. On the one hand, this phenomenon perhaps supports the growing scholarly call that agencies should be allowed to engage in more purposivist interpretation (than their judicial counterparts) because of their expertise in legislative history and their role in legislative drafting (with some caveats concerning the disconnect between the agency statutory drafters and the agency rule drafters). On the other, the phenomenon may cast some doubt on the foundations for judicial deference to agency statutory interpretations, in that agencies are intimately involved in drafting the legislation that ultimately delegates to the agencies the authority to interpret that legislation. In other words, many of the agency self-delegation criticisms raised against Auer deference could apply with some force to agency statutory interpretation and Chevron deference as well. Or we should at least be considering more closely the administrative state’s role in drafting legislation—especially drafting legislation in the shadows—when considering to what degree courts should defer to agency statutory interpretations.

* For those who may be in Las Vegas or Salt Lake City, I will also be doing an evening presentation on Monday about the current Supreme Court Term in Vegas and a lunch event on Tuesday in Salt Lake City on Texas v. United States—the challenge to the Obama Administration’s executive immigration actions that the Supreme Court decided to hear yesterday. Both events are for law students and lawyers (and others) and are sponsored by the Federalist Society. If you’re interested in attending, shoot me an email and I’ll provide more details.


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