Last week the Administrative Conference of the United States posted a draft of my report entitled Federal Agencies in the Legislative Process: Technical Assistance in Statutory Drafting. This report builds on the empirical survey work I conducted a couple years ago on federal agency rulemaking and agency statutory interpretation, which culminated in an article published in the Stanford Law Reviewin May (available here).
As the title suggests, the ACUS report focuses on the role of federal agencies in the legislative process and involved interviewing agency officials at some twenty agencies about how the agency is organized to provide assistance in the legislative process and how such assistance is offered. Here’s a summary of the report, from the SSRN abstract (draft report available here):
Federal agencies draft statutes. Indeed, they are often the chief architects of the statutes they administer. Even when federal agencies are not the primary substantive authors, they routinely respond to congressional requests to provide technical assistance in statutory drafting. Yet despite their substantial role in the legislative process, our understanding about how agencies interact with Congress is greatly undertheorized and perhaps even less understood empirically. This Report, which was commissioned by the Administrative Conference of the United States (ACUS), explores the latter role of federal agencies in the legislative process: the provision of technical assistance in statutory drafting.
To better understand the technical drafting assistance process, the author met with agency officials at some twenty executive departments and independent agencies for a total of over sixty hours of interviews. Ten of these agencies agreed to participate on the record: the Departments of Agriculture, Commerce, Homeland Security, Education, Energy, Health and Human Services, Housing and Urban Development, and Labor as well as the Federal Reserve and the Pension Benefit Guaranty Corporation. Subsequent to the interviews, the participating agencies responded to an anonymous, forty-question follow-up survey. The Report presents the key findings from this study, identifies the best practices that certain agencies have developed to address these challenges, and proposes recommendations for ACUS to consider. These recommendations focus both on internal agency practices to improve the technical drafting assistance process and external practices to strengthen agencies’ relationship with Congress in the legislative process.
This is just the first public draft of the report. Over the next couple months members of the ACUS Rulemaking Committee will be commenting on the report and its recommendations as will officials from agencies throughout the federal regulatory state. As detailed on the ACUS project website, the Rulemaking Committee will meet to discuss the report on September 17 (and then again on October 22). The full Conference will consider the report and vote on recommendations at its plenary session in December. Especially as this is an early draft, any comments or suggestions to improve the current draft would be greatly appreciated.