Professor Chris Walker Analyzes Agency Officials’ Approaches to Statutory Interpretation

Administrative law scholars have long analogized the relationship between Congress and federal agencies to that between a principal and agent in commercial law.  Nevertheless, few have undertaken detailed empirical analysis examining the faithfulness of bureaucratic “agents” in executing the will of Congressional “principals.”  Professor Christopher J. Walker of The Ohio State University’s Moritz College of Law has recently completed a major study analyzing this precise problem, surveying a large number of rule-writers at federal agencies to ascertain the extent to which they rely upon various interpretive tools when drafting rules pursuant to statutory delegations of authority.  The article will appear in the Stanford Law Review in 2015, and a draft of the paper was recently made available on SSRN (click here to read the article).

Professor Walker’s work builds upon a pioneering study by Professors Lisa Bressman and Abbe Gluck, wherein they surveyed Congressional staffers to determine how various interpretive doctrines influenced their statutory drafting.  See generally Abbe Gluck & Lisa Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, & the Canons: Part I, 65 Stan. L. Rev. 901 (2013).  By posing many of the same questions that Professors Bressman and Gluck included in their survey, Professor Walker is able to compare Congressional perceptions of various statutory interpretation doctrines to those of agency officials.  Interestingly, in most instances, the study reflects a high degree of concordance between both sets of individuals: those tools that statutory drafters identified as most important generally accord with those deemed most important by agency rule-writers. Figure 1 from the paper provides a high-level comparison:


More specifically, Professor Walker examines the perceived value of three separate sources of influence on agency statutory interpretation: (a) canons of construction (including both textual and substantive canons); (b) legislative history; and (c) administrative law doctrines articulated in caselaw.  Figure 2 from the paper summarizes the agency officials’ reported use of each of the interpretive tools included in the 195-question survey:

With respect to the canons, the study generally suggested that agency officials rely more heavily on textual than on substantive canons.  Within the textual canons, though officials often did not know the formal Latin names (e.g., noscitur a sociis), many more individuals were familiar with the underlying principles.  Officials expressed a high degree of support for the doctrine that words should carry consistent meanings within an individual statute and weaker (but still relatively robust) support for the various canons designed to encapsulate basic principles of textual analysis (including noscitur a sociis, ejusdem generis, and expresio unius).  Officials expressed much lower levels of support for the principle that words should be interpreted consistently across the entire statutory corpus and evinced a high degree of skepticism concerning the usefulness of dictionaries as a drafting aid.

Interestingly, notwithstanding criticism emerging in recent decades concerning legislative history’s role as an interpretive tool, agency officials generally expressed a high degree of reliance upon such information in interpreting statutes (and tended to reaffirm the views of judges and scholars that certain sources, such as committee reports, are more reliable than others, such as floor statements).  Nevertheless, many of the written comments by survey participants suggested that they considered the utility of the various sources of legislative history rather limited.

Finally, the study also indicated that agency officials are generally aware of the more salient administrative law doctrines articulated in the caselaw (most especially the principles established in Chevron, Skidmore, and Mead) and take some account of these watershed decisions when drafting rules. Professor Walker explores these findings further in an essay forthcoming in the Fordham Law Review as part of its Chevron at 30 Symposium. (A draft of that essay is available on SSRN here). Perhaps the most striking finding discussed in that essay is that two in five rule drafters surveyed agreed or strongly agreed—and another two in five somewhat agreed—that a federal agency is more aggressive in its interpretive efforts if it is confident that Chevron deference (as opposed to Skidmore deference or de novo review) applies.

Though Professor Walker avoids taking sides in the “purposivism” v. “textualism” debate, the study contains a treasure trove of information that both camps should find intriguing (and might use as ammunition in the incessant skirmishes playing out in judicial opinions and the legal literature).  Textualists should be heartened by the relatively extensive reliance placed on the various textual canons, but some canons are clearly deemed far more influential than others.  Purposivists, in turn, may draw support from the purportedly high level of agency solicitude for legislative history, yet rule-writers generally consider that source less influential than do Hill staffers, and the narrative responses suggest that many agency officials, though they feel obliged to consider the legislative history, deem its persuasive value rather minimal.  In short, regardless of one’s preferred mode of statutory interpretation, the study supports conflicting conclusions concerning whether agency officials are acting as “faithful agents” when implementing Congressional statutes.

In this light, Professor Walker’s work elucidates a number of interesting follow-up inquiries.  For instance, one might examine the relative persuasiveness of the various tools of interpretation: though agency officials generally consider both the textual canons and legislative history to comprise valuable sources of information, how do agency officials react when an interpretation favored by textual analysis squarely conflicts with that supported by the legislative history?  The answer to this inquiry, though admittedly difficult to ascertain empirically (especially as such cases of direct conflict are exceedingly rare), would shed some light on whether bureaucratic “agents” are more faithful to the textualist or purposivist school of statutory interpretation.  Given agency officials’ nearly universal awareness of the Chevron doctrine, a separate study might examine the extent to which this creates a perverse incentive, such that agency officials exploit the additional deference they will receive on judicial review by being less careful in the initial interpretive exercise.  Again, this question would prove highly difficult to test empirically, but it would also bear upon the “faithfulness” of bureaucratic “agents” to the will of the Congressional “principal.”

In short, Professor Walker’s study represents an invaluable contribution to the academic literature, representing the first effort to systematically analyze agency officials’ use of the various statutory interpretive doctrines, and it will hopefully spark a number of follow-on studies to address the litany of salient issues it raises.

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