Our findings suggest that, apart from Chevron, the assumptions underlying the most commonly employed administrative law doctrines may accurately re-
423. Q56. 424. Id. 425. Id. 426. Id. 427. Id. 428. Q55.
flect how some congressional drafters write legislation. Chevron is known to our respondents and is now a part of the way they think about drafting, even if it did not track that practice from the start. But Chevron presumes both too little and too much about how our respondents signal delegation.
The doctrinal and theoretical interventions that we might make are less apparent. As we have noted, there are common justifications for Chevron that are independent of the existence of the feedback loop that we have identified. For example, if the role of Chevron is to facilitate agency expertise, political accountability, regulatory uniformity, or judicial coordination, the presence of courts-Congress communication on delegation matters is not essential. Like- wise, if the other deference doctrines are best understood as having similarly independent normative or institutional justifications, the fact that our respond- ents did not know that those doctrines exist is of small moment.
The other doctrines, however, much more so than Chevron, have not been so understood. Rather, the Court has explicitly invoked a desire to track how Congress delegates in creating and invoking them. Thus, our intuition for those rules is that our findings have strong potential doctrinal significance. The legit- imacy of those other doctrines stands to benefit from the confirmation of our findings that they accurately approximate how Congress drafts. That our find- ings do not reveal the existence of a feedback loop for these doctrines seems less important—the doctrines are not typically defended based on congressional awareness of them—but awareness might be important if the Court desires to tweak those doctrines based on communication with Congress.
We suspect that the impact of our findings will be greatest for Mead, which has suffered the most criticism. Judges and scholars have disputed the link the Court made in Mead between procedural formality and lawmaking authority, arguing that the Court’s effort to find congressional delegation in Mead’s sig- nals is fictitious and thin cover for judicial aggrandizement that cannot justify the layer of doctrinal complexity that the doctrine imposes.429 By contrast, many who believe that intent to delegate is fictitious in the context of Chevron still find the fiction there benign, because it supports judicial deference, in line with other arguments that are not as empirically grounded, such as agency ex- pertise and political accountability.
At a more pragmatic level, our findings might be useful in heeding com- mon calls to streamline the doctrines to improve their judicial administrability. The fact may well be that some of the doctrines, even if grounded in actual practice, are too complicated for lower courts to manage.430 Our drafters drew some fine distinctions in how they applied some of the assumptions. For exam-
429. See, e.g., United States v. Mead Corp., 533 U.S. 218, 243 (Scalia, J., dissenting); see also Barron & Kagan, supra note 33, at 225-34.
430. Empirical studies of Mead so suggest. See generally Bressman, supra note 50; Adrian Vermeule, Introduction: Mead in the Trenches, 71 GEO.WASH.L.REV. 347 (2003).
ple, our respondents told us that Barnhart’s assumption about the consistency of an agency interpretation may cut for or against delegation. As a different kind of example, the validity of some assumptions—including the consistency of the agency interpretation, the participation of the agency in drafting, the presence of divided government, and even subject matter—seems to turn, at times, on the personal characteristics of the agency head or the personal rela- tionships between drafters and agency staff. Some assumptions were not vali- dated as strongly as others, such as subject matter differences and preemption questions.
For theorists interested in doctrinal simplification, then, our findings pro- vide the strongest support for preservation of Mead and the major questions doctrine. Although Barnhart received a similar level of validation from our re- spondents as the major questions doctrine, its application was qualified in the ways described above, while the major questions doctrine was not.
1. Chevron Step One
Our findings also have relevance for the ongoing debate about what courts should consider at Step One of Chevron.431 Courts currently consider the rela- tive clarity of the text at Step One, but our findings indicate that textual clarity is not always a reliable signal of delegation. As an initial matter, courts often look to textual and substantive canons as indications of congressional intent in deciding whether statutory text is clear. But our respondents did not know many of those canons—a finding that calls into question their utility as proxies for drafter intent here, as elsewhere.
Moreover, our drafters identified signals of delegation outside of ambigu- ous text, such as the longstanding nature of the agency’s interpretation, direc- tives in legislative history, and linguistic signaling conventions of intent to del- egate, that might appear in otherwise unambiguous text. These other signals of delegation may be masked or lost by the current approach.
Justice Breyer raised a similar point in a recent decision, Zuni Public
School District No. 89 v. Department of Education432—to the surprise and dis- approval of nearly every other Justice, even those who joined his majority opin- ion.433 Specifically, he recognized that, by focusing only on the text of the stat- ute, the Court would miss the signals of delegation that he saw in the statute’s context—including the longstanding nature of the agency’s interpretation and the technical nature of the issue—as well as in the history of the statute, which revealed the participation of the agency in drafting the very language at is-
431. See Bressman, supra note 75, at 599-606. 432. 550 U.S. 81, 90-91 (2007).
433. See id. at 106 (Stevens, J. concurring); id. at 107 (Kennedy, J., concurring); id. at 116-17, 121-22 (Scalia, J., dissenting).
sue.434 To avoid this result, he considered these signals of delegation before looking at the language of the statute at Chevron Step One and deferred to the agency’s interpretation.435 No one previously had questioned Chevron in this way, and several Justices joining the majority opinion wrote separately to dis- courage the recurrence of this approach. Justice Stevens concurred but wrote separately to reinforce the normal order of Chevron, and Justice Kennedy, joined by Justice Alito, concurred but wrote to express dismay that Justice Breyer was willing to prioritize “agency policy concerns” over “the traditional tools of statutory construction.”436 Justice Scalia dissented, joined by the three remaining Justices, and accused Justice Breyer of committing the sin of Holy
Trinity, disregarding the plain meaning of the statutory text.437 Our findings, however, suggest that Justice Breyer was not off the mark, and may actually have understated the concern.
Our findings have additional implications for the use of legislative history at Step One. Courts typically consult legislative history at Step One for guid- ance on the meaning of a particular word or phrase, although textualists gener- ally refuse to do so. But the legislative history may actually be useful in a dif- ferent way: as a relevant signal of delegation. For example, the legislative history might contain instructions to an agency for implementing or interpreting a provision. Recall that 94% of our respondents told us that the purpose of leg- islative history is to shape the way that agencies interpret statutes,438 and 21% separately described legislative history as a mechanism of agency oversight.439 Rather than using legislative history to determine the clarity of text, courts might consult it at Step One as a signal of delegation itself.440
2. The obligation not to punt difficult questions in broader context Finally, our findings about delegation may have implications for some of the other canons that our study investigated, as well as for broader theories about the role of courts in interpretation. At the more granular level, the notion that the Court must use canons of construction to force Congress to deliberate on hard questions does not quite fit the picture that our respondents painted about their sense of obligation to resolve major policy questions. We recognize
434. See id. at 89-91 (majority opinion). 435. See id. at 90, 100.
436. See id. at 106 (Stevens, J., concurring); id. at 107 (Kennedy, J., concurring). 437. See id. at 108, 113-16 (Scalia, J., dissenting). Justice Souter joined only Part I of Justice Scalia’s dissent. See id. at 123 (Souter, J., dissenting).
438. Q60f. 439. Q57.
440. Courts also might leave questions of whether the agency followed the instructions in the legislative history for “reasonableness” review under Step Two or arbitrary and capri- cious review.
that our respondents’ answers on this point may have been self-serving; that is, that they might have been reluctant to admit that they “punt.” And it certainly seems to be the case that Congress cannot help but leave certain matters unre- solved—our findings on delegation corroborate that fact—but it seems less the case that any consequential ambiguity is the result of a deliberate attempt to push big decisions onto courts and agencies.
Even if one were to question the sincerity of our respondents’ claims that they do not punt big decisions, they were emphatic about the branch to which they do intend to delegate when ambiguity is inevitable or delegation is other- wise desired. As discussed in the companion Article, our respondents told us that courts are not their intended delegates and that they would rather have dif- ficult questions returned to Congress than resolved by judges. Our respondents were much more receptive to the notion of agencies as statutory interpreters, but again resisted the notion that they delegated to agencies without limitation.
* * *
The assumptions underlying a surprising number of the administrative law doctrines were validated by our respondents. Why the Court has done such a good job at approximating how Congress works in the administrative law con- text is an interesting question, particularly because those administrative law doctrines have come under much more vigorous attack than the other canons that our study did not validate to the same degree. We consider this comparison and offer some other concluding thoughts in the Conclusion, which follows.
CONCLUSION:COMPARING THE CANONS, THE ENDURING ALLURE OF FAITHFUL
AGENCY, AND CONGRESS AS “FAITHFUL PRINCIPAL”
Examining the relationship between congressional drafting practice and the Court’s interpretive doctrines reveals, at best, only a partial picture of how fed- eral statutes are put together. Our respondents emphasized many other influ- ences on the drafting process that legal doctrine does not take into account. We alluded to some of those influences in the preceding pages, including the cen- tral role of Legislative Counsel in drafting text, the division of Congress into committees, the type of statute and legislative process, and the personal and professional differences across drafters and agency personnel. We explore those influences and many others in the companion Article. There, we also ad- dress the ability of doctrine to incorporate the kind of real-world detail uncov- ered by our study, as well as the theoretical implications for textualism, purposivism, and pragmatism of our respondents’ rather limited view of the role of courts in statutory interpretation (both by themselves and contrasted with agencies). Before proceeding to those topics, however, we wish to offer some brief, hopefully unifying, reflections on the many findings already pre- sented in these pages.