Notice & Comment

Shedding Light on Agency Lawmaking in the Shadows, by Rebecca Turnbull

If I had to reach a common conclusion from comparing Presidential Laws and the Missing Interpretive Theory by Professor Tara Leigh Grove and Legislating in the Shadows by Professor Christopher Walker, it would be that “all legislative powers” vested in Congress by the Constitution seem to be leaking out of that body and into the hands of various federal and executive officials. Grove and Walker investigate how agencies essentially practice lawmaking through intimate involvement with the drafting and interpreting of almost all laws affecting them, whether those laws are presidential (Grove) or congressional (Walker). Both authors suggest this leaking of legislative power is not really a bad thing for modern American government; it is necessary for our society to function in the face of growing industrial and technological innovations that require regulation. However, the authors argue courts may have to modernize judicial review to prevent those leaks from becoming floods that can muddy the Constitution’s separation of powers beyond the public’s recognition. I tend to agree with both authors’ ideas, and I am quite interested in how they seem to parallel each other. I detail three general parallels below.

First, the Constitution does not require either the President or Congress to consult with federal agencies in any way to create directives or legislation, respectively. Yet they often choose to do so, generally for the noble reason of ensuring proposed legislation and directives are actually effective in achieving their original objectives. The President may choose to engage in a self-imposed process of combined agency and White House review of his or her proposed directives to ensure agencies will actually implement them and save the President from political embarrassment. Congressional staffers may choose to contact agency members for input on legislation that will affect that agency for largely the same reasons, including to eventually “sell” the proposed legislation to their bosses by assuring them the affected agencies have already approved it. For both, the objective in seeking agencies’ input is often simply to make the law one that would actually work.

Second, agency involvement in making laws is almost always confidential. Several academics take issue with this reality, especially because agency involvement can range from being merely technical analysis to largely substantive input, but most of it may never be brought to light for the public to see. I agree with both authors that this confidentiality is necessary and, perhaps, even beneficial. The President and members of Congress would be quite deterred from contacting agencies for input if every consultation had to be kept on the public record. Because the President and members of Congress are generalists who do not specialize in the areas in which agencies work, they need agencies to educate them in those areas. This education includes the need for congressional staffers to be able to ask genuine questions to agency officials freely without, well, exposing their educational needs for the world to see. Additionally, the President and members of Congress still must approve every end product of those confidential processes involving agencies, so this confidentiality does not ultimately usurp democratic accountability.

Third, when agency involvement gets too shadowy for comfort, courts must modernize their approach to judicial review to discourage possible collusion and protect the public. Both authors ultimately suggest such revised approaches to judicial review. Grove and Walker suggest, respectively, that courts should not be purposivist toward presidential directives and too deferential toward agency statutory interpretations. I agree with Grove that courts should use a more textualist approach with directives to hold the President accountable to the language he approves, but I am not sure I agree with her reasoning. It is not clear how directives are so inherently different from statutes. Directives are still based in statutory authority and have similar authoritative force as legislation. With that said, I agree with one of Walker’s suggestions that, instead of doing away with Chevron for reviewing agency statutory interpretations, as some academics advocate, perhaps Chevron can be limited with a more robust Step Zero. That preliminary step would involve a more searching inquiry into the statutory ambiguity at issue to assess whether Congress really intended to delegate that ambiguity to the agency. In other words, a little purposivism and, thus, reality would be added back into the Chevron deference doctrine to keep growing agency influence more intentionally at bay. As Walker argues, the Supreme Court already seems to be experimenting with this approach in the form of the major questions doctrine.

In sum, it is interesting to see the parallels between agency influence at both the executive and legislative levels. I agree with both authors that this intimate agency influence is ultimately necessary. But when agency influence expands enough to blur the constitutional boundaries between executive and legislative powers, courts must adapt their approach to judicial review to appreciate and assess the modern regulatory realities of what goes on in the shadows behind almost every law.

Rebecca Turnbull is a second-year J.D. candidate at The Ohio State University Moritz College of Law. An earlier version of this post was submitted as a weekly rapporteur report for Professor Walker’s Administrative Law in the Modern Regulatory State Seminar and selected by Professor Walker for publication on the blog.