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Inside agency statutory interpretation.


     A. Scope of Study and Relevant Literature
     B. Survey Methodology
     C. The 128 Rule Drafters Surveyed
     D. The 10,000-Foot View
     A. The Semantic Canons
     B. The Substantive Canons
     A. Federal Agencies in the Legislative Process
     B. Purposes of Legislative History
     C. Reliability of Legislative History
     A. Principal-Agent Interpretive Relationship
     B. Scope of Lawmaking Delegation
     C. The Judicial Deference Doctrines


Given the rise and rise of the modern administrative state, (1) the focus and function of lawmaking have shifted from judge-made common law, to congressionally enacted statutes, and now to agency-promulgated regulations. (2) As of 2013, the Code of Federal Regulations exceeded 175,000 pages and included

tens of thousands of rules. (3) In 2013 alone, federal agencies filled about 80,000 pages of the Federal Register with adopted rules, proposed rules, and notices. (4) By contrast, the 133rd Congress (2013-2014) enacted just 144 public laws for a total of 1750 pages in the Statutes at Large. (5) Such broad delegation of lawmaking authority by Congress to federal agencies creates a principal-agent problem: "[T]he legislature would like the agency to carry out its wishes faithfully, but ensuring the fidelity of the agency may be costly, if not impossible." (6)

Political scientists have spent decades exploring the difficulties involved in Congress's control and oversight of its bureaucratic agents. (7) Those difficulties can be attributed to, among other things, asymmetries in information, expertise, and preferences between Congress (the principal) and federal agencies (the agents). (8) Positive political theorists have also emphasized the dueling principals problem: many federal agencies report to at least two principals-- Congress and the President. (9) Other scholars have explored the justifications for congressional delegation of interpretive authority--for example, agency expertise, legislative drafting costs, and political insulation--and how these different justifications may affect what agency interpretive fidelity means. (10) Moreover, the principal-agent model has been criticized as overly simplistic as other actors--for example, the executive, interest groups, and the public--play an important role in the relationship. (11) For example, in critiquing one such model Adrian Vermeule has remarked that "the crucial simplifications seem not only artificial, but arbitrary--as though a political scientist decided to study only the behavior of left-handed senators, deferring right-handed ones to future research." (12) Indeed, the agency can even become the principal in manipulating the elected branches. (13)

These criticisms notwithstanding, this principal-agent problem may well implicate the democratic and constitutional legitimacy of administrative governance. After all, the Constitution vests "[a]ll legislative Powers herein granted ... in a Congress of the United States" (14)--not in either the executive or judicial branch, much less in an unelected bureaucracy. So the legitimacy of delegating expansive lawmaking authority to unelected regulators may well depend on whether those regulators are faithful agents of Congress (though, as noted above, assessing agency interpretive fidelity may vary based on the justification

for delegation, and the principal-agent model may be too simplistic to capture fully the relationship between Congress and the regulatory state). (15)

Despite the predominance of lawmaking by regulation and the decadeslong application of principal-agent theory to the administrative state, agency statutory interpretation remains, to a large extent, a black box. Terry Moe has explained how these information asymmetries create a "built-in control problem" because the bureaucratic
   agent has expertise and other information--about his own diligence
   and aptitude, for example, or his actual behavior on the job--that
   are largely unavailable to the principal, and this asymmetry makes
   it difficult for the principal to ensure that his own interests are
   being faithfully pursued by the agent. (16)

This control problem affects not only how Congress delegates its lawmaking authority to and then oversees federal agencies but also how courts patrol such delegations. We do not know if federal agencies are familiar with, much less adhere to, the rules, customs, and practices that Congress and courts would expect an agent of Congress to follow. Nor do we know how federal agencies distinguish circumstances in which Congress has delegated by ambiguity a measure of broader authority for agencies to pursue policies in the public interest from those in which it has delegated only narrower authority to enforce the law "as written"--to the extent there is even a meaningful difference between these two functions. Jerry Mashaw has underscored the critical need for empirical work on these matters: "Inquiry into the empirical realities of agency interpretive practice can provide a crucial window on these issues and an essential step in the assessment of the legitimacy of administrative governance." (17)

To better understand the empirical realties of statutory interpretation inside the administrative state, this Article reports the findings of a 195-question survey of agency rule drafters that covers a variety of topics related to agency rule drafting and statutory interpretation. (18) The survey is modeled on the pathbreaking empirical work Lisa Bressman and Abbe Gluck have conducted on congressional drafting, though it differs in substantial respects. (19) The author administered the survey during a five-month span at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (the Federal Communications Commission and the Federal Reserve). Responses were received from 128 agency officials whose primary duties included statutory interpretation and rulemaking (for a thirty-one percent response rate). Although agency concerns for confidentiality placed methodological constraints on the study--including anonymity as to the individual respondent and the respondent's respective agency--the findings shed considerable light on agency rule drafting and the role of the canons, legislative history, and administrative law doctrines in agency statutory interpretation.

The Article proceeds as follows: Part I provides an overview of the empirical study. Part FA defines the scope of the study and situates it within the existing literature as the first comprehensive investigation into agency statutory interpretation. Part LB then details the survey methodology and its limitations, with Part I.C introducing the background of the survey respondents. Part I.D concludes by providing a 10,000-foot view of the survey findings--comparing the interpretive tools explored in this survey based on the rule drafters' reported familiarity with and use of those tools.

Part II presents the findings regarding the fifty-four questions asked about the rule drafters' familiarity with and use of the canons of interpretation. The canons are considered by many to be key indicia of interpreter fidelity because they purport to reflect the meaning of the statutory language (semantic canons) or at least what the words should mean in light of background principles (substantive canons). The rule drafters were generally more familiar with the semantic canons by concept than by name, and this was particularly true of the canons with Latin names. Of the ten semantic canons covered in the survey,

those most reported as used in interpretation are two pairs of related principles: the whole act rule and consistent usage canon; and noscitur a sociis (associated words canon) and ejusdem generis (residual clause canon). The ordinary meaning canon was another clear winner. By contrast, two related canons were generally known by name but rejected in practice: the whole code rule and in pari materia (similar statutory provisions should be interpreted similarly). These findings are similar in many respects to those in the Bressman and Gluck study on congressional drafters, including the conclusion that dictionaries are not used when drafting. (20) But they also challenge some of those findings. The agency rule drafters, for instance, reported that they were more than twice as amenable to using a dictionary when interpreting as opposed to when drafting.

Part II.B turns to the substantive canons. The federalism canons--the presumptions against preemption of state law and against the waiver of state sovereign immunity--were the most known by the agency rule drafters surveyed of the six substantive canons covered, followed by constitutional avoidance. The agency rule drafters' reported use of the substantive canons, however, was substantially lower, with the presumption against preemption the only one reported as being used by more than a third of the rule drafters. These findings of varied awareness and usage add to the ongoing debate about the role substantive canons should play in agency statutory interpretation (and subsequent judicial review).

Part III explores the findings from the thirty-five questions on legislative history and the role of federal agencies in the legislative process. With respect to the legislative process as discussed in Part III.A, nearly four in five rule drafters reported that their agencies always or often participate in a technical drafting role of statutes they administer, whereas three in five indicated that their agencies similarly participate in a policy or substantive drafting role. The rule drafters reported that their personal participation in the legislative process was less involved, though still significant. The lower personal participation may be explained in part by the organizational division in many agency general counsel offices between the legislative affairs and regulation staffs.

Despite less personal participation in the legislative process, as discussed in Part III.B, three in four rule drafters considered legislative history useful in interpreting statutes, and at least four in five agreed that legislative history serves to explain the purposes of a statute and the meaning of particular terms in a statute. Of over twenty interpretive principles included in the survey, legislative history had the sixth-highest response for use in interpretation. Only Chevron deference, the whole act rule, the ordinary meaning canon, the Mead doctrine, and noscitur a sociis were reported by more rule drafters as being used in their interpretation efforts. Similarly, as discussed in Part III.C, the rule drafters surveyed demonstrated, on balance, a sound understanding of how to assess the reliability of legislative history--including that committee and conference reports are usually the most reliable and floor statements by nonsponsors the least reliable. Many rule drafters indicated that the timing of the legislative history matters whereas whether a member of Congress drafted or even read or heard the legislative history does not--findings consistent with those of the congressional respondents in the Bressman and Gluck study. These findings on legislative history and process--in particular, that federal agencies are heavily involved in the legislative process and that agency rule drafters are experts at using legislative history in interpretation--seem to support the scholarly call for a more purposivist approach to agency statutory interpretation (as compared to a more textualist approach to judicial statutory interpretation). (22)

Part IV explores the relevant findings from the ninety-seven questions asked on administrative law doctrines regarding congressional delegation and the scope of federal agency interpretive authority. (23) As set forth in Part IV.A, much like the congressional respondents in the Bressman and Gluck study, the agency rule drafters emphasized that federal agencies--not courts--are the primary interpreters of statutes Congress has empowered them to administer. In other words, it is more appropriate to focus on the relationship between Congress and agencies, rather than on the relationship between Congress and the courts. Unlike the congressional respondents, however, the agency rule drafters seemed to perceive a more involved judicial role in agency statutory interpretation. The vast majority of rule drafters surveyed recognized that judicial review plays a role in their interpretive efforts and that judicial views on the various interpretive tools also influence the agency's rule-drafting process.

As detailed in Part IV .B, the agency rule drafters agreed with the congressional respondents that Congress does not intend to delegate by ambiguity with respect to all types of issues. Instead, the rule drafters generally believed that Congress intends to delegate ambiguities relating to implementation details, areas within agency expertise, omissions in statutes, and even the agency's scope of statutory authority or jurisdiction. By contrast, there was less consensus with respect to ambiguities relating to major policy questions, preemption of state law, and serious constitutional questions. These findings contribute to the continuing Chevron "Step Zero" debate about which ambiguities should signal a delegation of lawmaking authority, and to the "Step One" debate about which interpretive tools should be used to resolve statutory ambiguities. (24) Part IV.C turns to the rule drafters' familiarity with and use in drafting of the administrative law deference doctrines. The rule drafters surveyed were well aware of the Chevron deference standard--the tool cited most frequently as known and used in drafting--as well as the less deferential Skidmore standard that generally applies when Chevron does not. Compared to Chevron, half as many rule drafters confirmed that Auer/Seminole Rock deference--the rule that agencies' interpretations of their own regulations are controlling unless plainly erroneous--plays a role in their drafting decisions. Moreover, whereas the Mead doctrine was not as well known by name, the rule drafters overwhelmingly confirmed that the principles articulated in Mead--congressional authorization of rulemaking or formal adjudication and the agency's use of it-affect whether an agency's interpretation will receive Chevron deference.

Although this empirical study into agency statutory interpretation has its methodological limitations and leaves many questions unanswered while raising additional questions for further research, it "provide[s] a crucial window"--to borrow from Mashaw--"into the empirical realities of agency interpretive practice"--at least with respect to agency statutory interpretation in the rulemaking context. (25) The study reveals valuable insights into lawmaking by regulation and should encourage further empirical and theoretical work. The findings also underscore how our understanding of what it means for federal agen-agencies to be faithful agents of Congress is greatly undertheorized. Indeed, as outlined above and further discussed in the Article, the findings challenge some theories on agency statutory interpretation while reinforcing others. And the study sheds considerable light on the relationship between federal agencies, Congress, and the courts from the vantage point of the rule drafters surveyed.

This Article focuses on fidelity in agency statutory interpretation, but the findings have implications far beyond principal-agent theory. In addition to contributing to the legal and political science literature on the modern administrative state, this unprecedented empirical look inside agency statutory interpretation should be a valuable resource to a number of real-world audiences--the congressional principal who wants to better "predict whether and how agencies will interpret statutes"; (26) the agency general counsel who wants to train her rule drafters based on current deficiencies in interpretive understanding and practices; (27) and the judge who is faced with reviewing an agency statutory interpretation or interpreting a regulation--a subject that has been given so very little scholarly attention.*-8 As Congress, courts, and scholars gain more insight into how agencies understand and use the canons, legislative history, and judicial deference doctrines in their interpretive efforts, the relationship between Congress and federal agencies should improve, as should the ability of the judicial branch, as another congressional agent, to better monitor and faithfully constrain lawmaking by regulation.


A. Scope of Study and Relevant Literature

As set forth in the Introduction, Congress has delegated vast lawmaking authority to federal agencies by statute. Under principal-agent theory, Congress strives to ensure that federal agencies are its faithful agents when interpreting those statutes. For legal academics, the concept of faithful agency is a familiar one in statutory interpretation. But it is more often invoked when discussing the relationship between Congress and courts, rather than between Congress and federal agencies. Indeed, there is a robust literature and debate on these matters of interpretation, including whether textualism or purposivism better advances the judicial role as a faithful congressional agent. (29) As Bressman and Gluck have remarked in this judicial context, "the faithful-agent concept provides an extremely broad umbrella for the application of many different kinds of interpretive rules." (30)

Far less theoretical or empirical work, however, has been done with respect to interpretation inside the regulatory state. As Mashaw observed nearly a decade ago, "virtually no one has even asked, much less answered, some simple questions about agency statutory interpretation." (31) In his preliminary inquiry into the matter, Mashaw found "persuasive grounds for believing that legitimate techniques and standards for agency statutory interpretation diverge sharply from the legitimate techniques and standards for judicial statutory interpretation." After theorizing about interpretive norms and practices at the agency level, he concluded that answers to the normative questions about appropriate (or faithful) agency statutory interpretation require a missing empirical foundation into the "realities of agency interpretive practice."

The theoretical work to date mainly proceeds in this manner with calls to adapt traditional statutory interpretation conducted by courts by relying on the comparative expertise--or the unique "interpretive voice" (34)--of federal agencies. Cass Sunstein and Adrian Vermeule, for instance, have argued that "attention to institutional considerations can show why agencies might be given the authority to abandon textualism even if courts should be denied that authority." William Eskridge has advanced a somewhat analogous position: "[R]ead statutes broadly, in light of their purposes, and follow a quasi-legislative political process for interpretations addressing big policy questions or arenas not resolved by the statute." Mashaw, Peter Strauss, and others have reached conclusions along similar comparative expertise lines. In sum, the theoretical development of agency statutory interpretation remains in its early stages, and metrics for assessing faithful agency interpretation are even more infant. As for empirical studies, even less work has been done. Sunstein and Vermeule have remarked that "[pjrecisely because the empirical study of interpretation remains in an extremely primitive state, there is every reason to think that much will be gained by further empirical efforts." (39) The most comprehensive study on interpretation to date is the Bressman and Gluck study on congressional drafters, in which the authors asked 137 congressional staffers 171 questions about statutory interpretation. (40) Bressman and Gluck observed that "there has been almost no other empirical research of this kind" with the exception of one prior, more limited study of eighteen congressional staffers by Victoria Nourse and Jane Schacter. (41)

With respect to administrative law, more empirical work has been done, but such work has focused on how courts review administrative interpretations of law, (42) as well as how Congress delegates authority to federal agencies. (43) Terrific studies on particular agency practices have also been conducted, (44) though none has looked specifically at how agencies interpret statutes they administer. Indeed, little, if any, empirical work has been undertaken to understand what federal agencies consider when interpreting the statutes they administer.

The underexamined state of agency statutory interpretation is particularly noteworthy in light of one of the main conclusions from the Bressman and Gluck study on congressional drafting: "[C]urrent theory and doctrine are focusing on the wrong cues and the wrong relationships." (45) The congressional drafters surveyed "resisted" the theory that "Congress is in some kind of dialogue with courts--be it a principal-agent relationship, a partnership, or a rule-of-law relationship." (46) To the contrary, they "saw agencies as the everyday statutory interpreters, viewed interpretive rules as tools for agencies, too, and made no distinction, as some scholars have, between agency statutory 'implementation' and agency statutory 'interpretation.'" (47) In other words, the congressional drafters surveyed "saw their primary interpretive relationship as one with agencies, not courts" (48)--suggesting that study of the relationship between Congress and federal agencies is just as important as, if not more so than, that of any relationship between Congress and the courts.

That congressional drafters may view their relationship with federal agencies as more direct and personal than their relationship with courts is not too surprising. After all, Congress delegates lawmaking authority directly to federal agencies as a matter of course during the legislative process. As Mashaw has concluded, "In some sense, the position of agencies as 'faithful agents' of the legislature has a constitutional clarity that exceeds that of the judiciary." (49) Moreover, Strauss has observed that the Congress-agency relationship is more direct due to the agency's expert role in the legislative process: "The agency may have helped to draft the statutory language, and was likely present and attentive throughout its legislative consideration. Its views about statutory meaning may have been shaped in the immediate wake of enactment, under the enacting Congress's watchful eye." (50)

Accordingly, the case for more empirical investigation into agency statutory interpretation is an easy one to make. Deciding what and how to investigate, however, is much more difficult. For instance, there is a great divide in statutory interpretation as to what constitutes fidelity, with the predominant camps being textualism and purposivism. (51) And who the assessor of fidelity is also matters: whether she is a textualist or purposivist judge, a scholar advocating for an even less textually constrained interpretive practice for agency interpretation, (52) or a congressional drafter who views legislative history and process as perhaps the best guide for fidelity to congressional wishes. (53) Fidelity in agency statutory interpretation is indeed in the eye of the beholder--a beholder (or beholders) whose preferences are perhaps not fully understood as an empirical matter. (54)

This study does not take sides on which is the appropriate approach for assessing fidelity in agency statutory interpretation. Instead, it explores a variety of different metrics, which can be grouped into three broad categories: (1) awareness and use of the canons of statutory interpretation, which judges have developed and utilize in part based on faithful-agent theories (Part II); (2) awareness and use of legislative history and related legislative process tools (Part III); and (3) awareness and use of administrative law doctrines that may reflect when and how much discretion Congress (the principal) intends to delegate to a federal agency (its agent) (Part IV). How these interpretive tools and doctrines may measure agency fidelity is explored in more detail in the relevant Parts of the Article.

In light of the undertheorized state of agency statutory interpretation and the pioneering nature of this empirical study, each and every one of the 195 questions asked may not be too helpful for any interpretive method. With hindsight, some could have been omitted or at least framed differently; and un doubtedly, other questions should have been asked. The Article notes where that is the case and suggests additional lines of inquiry for subsequent investigation. Moreover, even the answers that this empirical study does provide may well be incomplete in light of the numerous other factors unaddressed by the study that influence the drafting process. The Article's main ambition is for its preliminary findings to lead to further theoretical development and empirical investigation into agency statutory interpretation.

B. Survey Methodology

The methodology for this empirical study on agency rule drafting is based in large part on the 171-question survey recently conducted by Bressman and Gluck of 137 congressional staffers. (55) Indeed, for comparison purposes between congressional and agency drafters, many of the questions were asked verbatim in this survey. Some questions in the Bressman and Gluck study were excluded from this study, including questions about federalism, clear statement rules, legislative processes, and legislative counsel. Conversely, this survey included substantially more questions about the drafters' awareness and use of various administrative law doctrines as well as the rule-drafting process more generally. In particular, nearly half of the questions (97 of 195) dealt with administrative law doctrines, whereas the Bressman and Gluck study included 45 questions on administrative law. (56) Many of these additional questions borrow from Mashaw's framework for empirical investigation of agency statutory interpretation (57)--though much, much more needs to be done to explore the questions he has posed.

The Bressman and Gluck methodology also had to be adapted to the federal agency context, where the pool of potential respondents is spread across hundreds of federal agencies and offices, and adequate access to that pool would require approval from the agency and not just the individual respondent. Accordingly, over the span of nine months, the author reached out to officials at every executive department and a dozen or so independent agencies (roughly every independent agency with substantial rulemaking authority)--meeting in person, by phone, and via e-mail to design the survey instrument and enlist their participation in the study. Ultimately, various agencies and offices at seven executive departments and two independent agencies agreed to participate. (58) The point persons at each agency then helped determine the population of agency officials with experience in statutory interpretation and rulemaking. (59) Some departments limited the survey population to particular agencies or offices, but within those populations the survey was sent to all officials with experience in statutory interpretation and rulemaking (60) Despite all agency rule drafters at these agencies receiving the survey, not every executive department, much less every federal agency, agreed to participate. So the generalizability of the survey's findings is limited by whether the surveyed agencies constitute a fair representation of agencies overall. (61) Whereas the relatively large sample size, the fairly diverse set of participating agencies, and the high response rate may counteract some of those limitations, the Article errs on the side of caution and presents these findings descriptively only as to the rule drafters surveyed.

The online survey consisted of thirty-five primary questions, many of which had multiple subquestions, for a total of 195 questions. (62) As a condition for participation, the agencies required that the survey be anonymous as to both the respondent and the respondent's agency and that the survey be conducted online rather than in person, the approach utilized in the Bressman and Gluck study. (63) The data collection took place on a rolling basis by agency over a five-month period from July to November 2013. In total, 411 agency officials received the survey and 128 responded, resulting in a 31% response rate. (64) Of the respondents, 98 (77%) answered each and every question. 65 The survey also allowed the respondents to make additional comments on most questions, and the dataset includes 345 such comments.

Before turning to the findings, it is important to underscore that, as with any survey that attempts to understand human behavior, one should be careful in reading too much into the rule drafters' responses. Indeed, because of the methodological limitations imposed by the participating agencies--including the anonymous nature of the survey and a limited sampling of agencies (66)--and the exploratory nature of the study, the Article limits itself to presenting a descriptive picture of these particular 128 agency rule drafters. (The Bressman and Gluck study took the same approach.) (67) That said, this study is the most extensive inquiry into actual agency interpretive practices to date, and the raw numbers provide a unique window into lawmaking in the regulatory state.

C. The 128 Rule Drafters Surveyed

The agency rule drafters who responded to the survey reflect diverse experience and backgrounds, and many have extensive experience in statutory interpretation and rulemaking. Here are the highlights: All are career civil servants as opposed to political appointees, (68) and all but eleven went to law school. (69) Nearly two-thirds have worked at a federal agency in a capacity that includes some rulemaking work for at least five years. (70) About two in five respondents (39%) have had a role in the drafting process of at least a dozen rules, with another 16% in the seven to eleven range, 25% in the three to six range, and most of the rest (17%) in the zero to two range. (71) One respondent, for instance, indicated involvement in "over 500 rulemaking actions"; another indicated that "[j]ust in the past 7 years, it has been 80 rules between proposed rules, interim rules, and final rules"; and a third indicated that the number of rules was "too numerous to count." (72) Moreover, 38% of the respondents are over the age of forty-five, 51% are between thirty-one and forty-five, and the remaining 11% are between twenty-two and thirty. (73) Four in ten respondents (42%) took a course in law school that focused on legislation, statutory interpretation, or statutory drafting, whereas approximately half (49%) did not take such a course. (74) Only one in four respondents (25%) have taken such a course outside of law school--many via continuing legal education or government training programs. (75)

At the end of the survey, the rule drafters were asked whether they consider themselves "strong" or "moderate" purposivists or textualists. These terms were not otherwise mentioned or defined in the survey. Half of the rule drafters identified as textualist--35% "moderate textualist" and 15% "strong textualist." About one in four identified as purposivist--19% "moderate purposivist" and only 3% "strong purposivist." Perhaps significantly, 21% indicated they did not know, and another 6% indicated "other," with answers in the comments that they are both or that it depends on the context. (76) One comment may be illustrative of the "other" rule drafters: "I start with the text, but keeping in mind the context (which I guess is what you mean by purpose). I want to say that I'm a moderate text/purpose hybrid." (77) Another may reflect those who chose either of the two "moderate" labels: "The text ALWAYS comes first. But Congress doesn't always write good or comprehensive text, so you have to use common sense and agency expertise to fill in the blanks. If Congress wrote better statutes, I'd be a stronger textualist. But they don't, which leaves me only a moderate one." (78)

D. The 10,000-Foot View

In addition to the nine questions on their background discussed in Part I.C, the survey asked rule drafters fifty-four questions about the canons, thirty-five on legislative history, and ninety-seven on the administrative law doctrines. The Introduction presents the highlights for each set of questions, which will not be repeated here, and Parts II, III, and IV, respectively, explore those in great detail. Before getting into the details, however, it may be helpful to provide the 10,000-foot view. The following two Figures attempt to do that.

Figure 1 presents the agency rule drafters' responses as to their knowledge of the various interpretive tools by name, along with the responses for these same questions from the congressional drafters surveyed in the Bressman and Gluck study. (79) This Article repeatedly references the findings from their study on congressional drafting, so that those congressional drafters' expectations can be compared with the rule drafters' perspectives here. In some ways this comparison is easy to make as many questions were asked verbatim to both groups. But the comparison should be made carefully and descriptively, as neither the Bressman and Gluck study nor this study purports to generalize its findings to the larger drafting populations (all congressional drafters and all agency rule drafters, respectively) and the methodologies differ in substantial respects (in eluding in-person versus online surveying, respectively). (80)

Indeed, the comparison between the agency and congressional respondents should be done cautiously for the additional reason that these two drafting populations differ in substantial respects. In the Bressman and Gluck study, 106 of the 137 congressional respondents were political staffers serving on congressional committees, whereas the remainder were nonpartisan drafters--28 of whom worked in the Offices of the House and Senate Legislative Counsel. (81) By contrast, as detailed in Part I.B-C, the agency rule drafters surveyed here are all career civil servants at various federal agencies. Like the Bressman and Gluck study, this study targeted the population with the greatest likelihood of substantial experience in drafting and interpretation. But unlike the Bressman and Gluck study, none of the agency respondents is a political appointee; indeed, the agency respondents seem more like the 28 congressional respondents who worked in the nonpartisan drafting Offices of the House and Senate Legislative Counsel. In other words, the comparison of these two drafting populations is probably not too helpful if one is trying to compare how each institution--Congress and the regulatory state--knows or uses certain interpretive tools. Aside from the methodological limitations discussed above, these two populations arguably are not similarly situated or motivated within their respective institutions, such that their responses may reflect their different roles and incentives. That said, the comparison still provides a useful baseline and point of reference, and it also sheds at least some (methodologically limited) light on the interpreter fidelity questions of whether the career agency rule drafters surveyed use the interpretive tools in ways similar to the Bressman and Gluck congressional respondents.

Figure 2 presents the findings with respect to the rule drafters' reported use of the interpretive tools explored in this study. (82) These findings are reported as the percentage of rule drafters who indicated that they use these tools when interpreting statutes or drafting rules. Figure 2 reports the rule drafters' indication of use of the interpretive principle by name--except where indicated with an asterisk, in which case the use is reported by concept. (83)


This Part presents the responses to fifty-four questions posed to the agency rule drafters about the canons of construction, which are "interpretive principles or presumptions that judges use to discern--or, at times, to construct--statutory meaning." (84) These canons can be divided into two groups: the semantic or textual canons (Part II.A), and the substantive or normative canons (Part II.B).

The canons are considered by many to be key indicia of interpreter fidelity. They purport to reflect either the meaning of the statutory language (semantic canons) or at least what the words should mean in light of background principles (substantive canons). Justice Antonin Scalia and Bryan Gamer have remarked that "[t]he canons influence not just how courts approach texts but also the techniques that legal drafters follow in preparing those texts." (85) Faithful-agency justifications for the canons include that they reflect the ordinary meaning of words at the time, (86) constitute background principles against which Congress drafts, (87) or are "mies with such established common law pedigrees that it is assumed everyone knows them." (88) As Bressman and Gluck have chronicled, "[sjome justifications turn expressly on congressional awareness and use of the canons." (89) Justice Frankfurter's observation in 1947 still rings true today: "Insofar as canons of construction are generalizations of experience, they all have worth." (90)

That said, as is well chronicled in the literature, not everyone agrees that the canons advance a faithful-agency approach to statutory interpretation or reflect the empirical realities of congressional drafting. Judge Abner Mikva, for instance, once quipped, "When I was in Congress, the only 'canons' we talked

about were the ones the Pentagon bought that could not shoot straight." (91) The polarized reaction to Scalia and Garner's 2012 statutory interpretation treatise Reading Law (92) is emblematic of the scholarly debate. (93) And sixty-five years later scholars are still responding to Karl Llewellyn's classic cannoning of the canons, in which he detailed how "there are two opposing canons on almost every point." (94) Indeed, Scalia and Gamer's most recent response to Llewellyn is to create a new canon--the "Principle of Interrelating Canons," which instructs that "[n]o canon of interpretation is absolute. Each may be overcome by the strength of differing principles that point in other directions." (95)

This Article does not weigh in on the debate about which canons should be utilized to assess whether an interpreter is a faithful agent of Congress. Instead, this Part merely reports the findings with respect to the rule drafters surveyed as to their awareness and use of the canons, along with some descriptive comparisons to the views of the Bressman and Gluck congressional respondents.

A. The Semantic Canons

As John Manning and Matthew Stephenson have explained, the semantic canons "are generalizations about how the English language is conventionally used and understood, which judges may use to 'decode' statutory terms. The use of semantic canons can therefore be understood simply as a form of textual analysis." (96) Justice Scalia has added that semantic canons are "so commonsensical that, were the canons not couched in Latin, you would find it hard to believe anyone could criticize them." (97) As discussed, however, many scholars dispute whether these canons are grounded in how Congress actually legislates. Judge Posner is perhaps the loudest modern critic, calling the canons "[vjacuous and inconsistent" and "just plain wrong." (98) And the findings from the Bressman and Gluck study, discussed below, cast further doubt on the usefulness of at least some of these canons for gauging interpreter fidelity.

This survey asked agency rule drafters thirty-five questions about the semantic canons. The survey first asked for the drafters' familiarity with and use of certain canons--"the six textual canons most commonly deployed by courts and scholars" (99)--by name and then by concept:

* Noscitur a sociis (construe ambiguous terms in a list in reference to other terms on the list);

* Ejusdem generis (construe general, often catch-all, terms in a list in reference to other, more specific, terms in a list);

* Expressio/inclusio unius est exclusio alterius (the inclusion of specific terms or exceptions indicates an intent to exclude terms or exceptions not included);

* The rule against superfluities (construe statutes to avoid redundancy; when there are two overlapping terms, construe to give an independent meaning to each);

* The whole act rule (statutory terms are presumed to have a consistent meaning throughout a statute); and

* The whole code rule (statutory terms are presumed to have a consistent meaning throughout the U.S. Code). (100)

As in the Bressman and Gluck study, the rule drafters were also asked about in pari materia (similar statutory provisions should be interpreted similarly) (101) as well as about their use of dictionaries when drafting. Unlike the Bressman and Gluck study, the rule drafters were asked if they knew and used the ordinary meaning canon (by name only) (103) as well as a follow-up question on the use of dictionaries when interpreting. (104)

The overall results on the semantic canons are reported in the following two Figures. Figure 3 presents the agency rule drafters' responses as to the knowledge of the semantic canons by name, along with the responses from the Bressman and Gluck congressional drafters for these same questions. (105) As Figure 3 illustrates, a somewhat larger fraction of the agency rule drafters surveyed here reported that they knew each semantic canon by name than their congressional counterparts in the Bressman and Gluck study. The varying level of recognition by name, however, roughly corresponds between the two groups.

Figure 4 compares the agency rule drafters' use of the semantic canons when asked by name versus when asked by concept, including two formulations about the use of dictionaries. (106) As Figure 4 illustrates, the rule drafters' reported use of a particular canon varies greatly depending on whether they were asked by name or by concept. The following Subparts address the key takeaways from these findings, including how they compare descriptively to the congressional respondents in the Bressman and Gluck study (and thus how they may relate to interpreter fidelity). (107) These takeaways--like many of the other findings in this Article--draw on the framework and taxonomy developed in the Bressman and Gluck study. (108)

1. More familiarity by concept than by name (especially for canons with Latin names)

It is not too surprising that the agency rule drafters surveyed generally were more familiar with the semantic canons when asked by concept than by name, particularly with respect to canons with Latin names. This finding is consistent with that of the congressional respondents in the Brcssman and Gluck study. (109) In Reading Law, Scalia and Garner bemoaned lawyers' and judges' lack of familiarity with the semantic canons, relying on a quasi-experiment they conducted at an American Bar Association (ABA) meeting to drive home this point: "When your authors, as an experiment, asked a group of about 600 lawyers how many knew the meaning of ejusdem generis (one of the oldest and most frequently applied canons), only about 10 had sufficient confidence in the answer to raise their hands." (110)

Whereas the lack of familiarity with the canons no doubt continues, the focus on the names--especially the Latin names--seems misplaced. The comments to this question reinforced that point. Of sixteen comments made, thirteen rule drafters criticized the survey for quizzing about Latin terms. One representative comment, for instance, stated that "[i]t is a little silly to ask about canons using [L]atin terms. More relevant would be to ask using English translations." (111) It seems like one of the 600 lawyers at the ABA event should have responded along those lines. Indeed, as another rule drafter commented, "Many of us have been instructed that the use of Latin phrases is discouraged, thus, our continued knowledge of the foreign terms is limited." (112)

Instead, the more important findings deal with which concepts are definitely in use or probably in use, and which canons are known by name but rejected in practice. (113) The following Subparts address these three sets of semantic canons before turning to the ordinary meaning canon and the use of dictionaries.

2. Concepts definitely in use: whole act rule, consistent usage, noscitur a sociis, and ejusdem generis

Although only about half of the rule drafters (55%) recognized it by name, nearly nine in ten (89%) indicated that the assumption underlying the whole act rule--that statutory terms are presumed to have a consistent meaning throughout a statute--always or often applies. Only one rule drafter indicated that it rarely applies, and none that it never applies. (114) Similarly, when framed in terms of a consistent usage canon--that a term used in multiple places in the same section of a statute is intended to mean the same thing within that section--93% of the rule drafters reported that this presumption is often or always true. (115) These findings are consistent with Reading Law's conclusion that "[t]he correlative points of the presumption of consistent usage make intuitive sense." (116) It may also be due in part to the Supreme Court's modern focus on this canon. (117) Part I.A.4 returns to the whole act rule and consistent usage canon in light of related principles (the whole code rule and in pari materia) that were known but rejected by the rule drafters.

The next most used semantic canons by concept are again related principles: noscitur a sociis--construe ambiguous terms in a list in reference to other terms on the list--at 79%, and ejusdem generis--construe general, often catchall, terms in a list in reference to other, more specific, terms in a list--at 60%. (118) This is despite the fact that these canons were two of the lesser known by name, at 37% and 47%, respectively. (119) As discussed in Part II.A.1, the likely reason for the lack of name recognition is due to the Latin names--further suggesting that these canon names should be translated into ordinary English. (120) This rationale finds further support by the stark disparity in the rule drafters' reported use of the canons by concept versus by name: 79% versus 26% for noscitur a sociis, and 60% versus 35% for ejusdem generis

The rule drafters' reported use of noscitur a sociis and ejusdem generis is consistent with the Bressman and Gluck study. Most congressional respondents did not know these canons by name--85% and 65%, respectively--but they were the two most used semantic canons by general concept at 71%. (122)

3. Concepts probably in use: expressio unius and superfluities

More than four in ten agency rule drafters reported that the concepts for two additional semantic canons were often or always true: expressio unius/inclusio unius--the inclusion of specific terms or exceptions indicates an intent to exclude terms or exceptions not included--at 48%, and the rule against superfluities at 41%.123 124 125 These canons are placed in a "concepts probably in use" category because both were quite known by name (62% and 69%, respectively (124)) yet also less used by name (50% and 61%, respectively (125)) and by concept. This may suggest that there is less consensus about their use. Indeed, one in ten rule drafters (9%) indicated they rarely use expressio unius by concept (in addition to four respondents who said never); 21% reported that they rarely used superfluities by concept (in addition to one respondent who said never). (126)

Again, these findings are roughly consistent with the congressional drafters' responses--though Bressman and Gluck classify expressio unius (at 33%) among concepts in use and superfluities (at 31%) among "canons known, but rejected." (127) They placed superfluities in the rejected category because 18% of congressional respondents indicated that the concept rarely applies and 45% said it sometimes applies. (128) This is similar to the 22% of agency rule drafters who indicated that it rarely or never applies, in addition to the 37% who said it sometimes applies. The agency rule drafters surveyed likely reached the same conclusion as Bressman and Gluck and their congressional respondents: "[cjommon sense tells us that, despite the popularity of this rule with judges, there is likely to be redundancy, especially in exceedingly long statutes," and that "even in short statutes--indeed, even within single sections of statutes-- ... terms are often purposefully redundant to satisfy audiences other than courts." (130) The findings detailed in Part III concerning federal agencies' extensive involvement in the legislative process arguably reinforce this conclusion.

In sum, expressio unius and superfluities seem to be somewhere in between canons used and canons known but rejected in practice, though the degree in between is roughly within the spectrum set forth in the Bressman and Gluck study. In other words, if the congressional respondents there were representative of congressional wishes more generally, then the responses from the agency respondents here would seem to be faithful to those wishes. Conversely, if a textualist judge grounded in the canons assessed fidelity, she would not be as pleased with the agency rule drafters surveyed here. Both conclusions would likely also be true for the known but rejected canons discussed in the following Subpart.

4. Canons known by name, rejected in practice: whole code rule and in pari materia

Although the whole act rule (at 89%) and consistent usage canon (at 96%) were reported as the most used by concept among the semantic canons, (131) their related canons--the whole code rule and in pari materia--were strongly rejected in practice. Only one in four (25%) indicated they often or always use in pari materia--similar statutory provisions should be interpreted similarly--in agency statutory interpretation. (132) Even worse, only one rule drafter (<1%) indicated use of the whole code rule. (133) This is despite the fact that 50% and 59% indicated they knew in pari materia and the whole code rule, respectively, by name. (134)

The rule drafters provided more details on this rejection in the comments. For instance, two rule drafters indicated they had "rarely seen courts invoke the whole code rule in interpreting statutes." (135) Based on personal experience, another expressed little confidence in the legislative process:
   Having seen how congress legislates--and knowing how much drafting
   is done by basically know-nothing congressional staffers, I think
   it is basically impossible to generalize about whether terms are
   intended to be used consistently--most often the drafters, as well
   as their legislator bosses, have no clue what is already in the
   statute that they are adding to or amending. I wish I could be more
   positive, but have you read the shit that congress churns out
   ...[?] (136)

And two rule drafters commented on how federal agencies are more careful and precise than their congressional counterparts. (137) The best way to reconcile their embrace of the whole act rule and consistent usage canon yet rejection of the whole code rule and in pari materia may be that the rule drafters surveyed are more confident in the presumption of consistent usage in the same statute or section of a statute than they are across statutes (much less the entire code). The Bressman and Gluck congressional respondents similarly rejected the whole code rule and in pari materia. (138) But the congressional respondents also "emphasized time and again the significant organizational barriers that the committee system, bundled legislative deals, and lengthy, multidrafter statutes pose to the realistic operation of' consistent usage principles. (139) Apparently, the agency rule drafters surveyed have greater confidence in Congress's ability to use words consistently within a statute or section of a statute than (at least) the congressional drafters surveyed in the Bressman and Gluck study.

5. Ordinary meaning canon used, but perhaps not dictionaries

A clear winner in this study was the ordinary meaning canon, which instructs that "[w]ords are to be understood in their ordinary, everyday meanings--unless the context indicates that they bear a technical sense." (140) The ordinary meaning canon was the most known (at 92%) and the second most used (at 87%) among the semantic canons in the study. (141) That is not too surprising as "[t]he ordinary-meaning rule is the most fundamental semantic rule of interpretation" (142) and has been a foundational rule since at least the 1800s. (143)

What perhaps is more surprising is that the agency rule drafters soundly rejected the use of dictionaries as a drafting tool. Only about one in five (19%) indicated that dictionaries are often or always used in determining what terms to use in statutes (or rules); only the whole code rule was used by fewer of the rule drafters surveyed. (144) This may be surprising, as a number of scholars have noted that, "driven by the rise of the new textualism, the Supreme Court has increasingly relied on dictionaries in discerning ordinary meaning." (145) On the other hand, this finding is not too surprising in light of the Bressman and Gluck study, which similarly found that the congressional respondents rejected the use of dictionaries in legislative drafting. Indeed, more than half of the congressional respondents reported that dictionaries are never or rarely used in drafting. (146) One congressional drafter colorfully explained that "Scalia is a bright guy, but no one uses a freaking dictionary." (147)

Because the Bressman and Gluck study only inquired into whether dictionaries are used when drafting and not whether they "should be used by interpreters in determining the meaning of terms used in statutes," this follow-up question was added here. (148) One rule drafter reflected the intuition behind this addition: "A dictionary is helpful to understand intent, even if a dictionary was not used by the drafters." (149) Indeed, it seems like many rule drafters agreed, as double the number of rule drafters (39% from 19%) reported that dictionaries are often or always used by interpreters in contrast to being used by drafters. (150) This finding does not necessarily mean an interpreter is more faithful to congressional wishes if she uses a dictionary, but it should make one even more "curious about the distinct and unasked question [in the Bressman and Gluck study about] whether congressional drafters think courts [or agencies] should consult dictionaries to help discern the meaning of statutory terms." (151)

B. The Substantive Canons

Substantive canons differ substantially from semantic canons. As Manning and Stephenson have explained, substantive or normative canons "do not purport to be neutral formalizations of background understandings about the way people use and understand the English language. Instead, these substantive canons ask interpreters to put a thumb on the scale in favor of some value or policy that courts have identified as worthy of special protection," (152) Put differently, per Henry Hart and Albert Sacks, substantive canons "promote objectives of the legal system which transcend the wishes of any particular session of the legislature." (153)

It has long been understood that substantive canons are not about empirical realities of congressional drafting. This is a point Judge Henry Friendly made long ago: "It does not seem in any way obvious, as a matter of interpretation, that the legislature would prefer a narrow construction which does not raise constitutional doubts to a broader one which does raise them." (154) That understanding, however, has been called into question in recent years. Justice Stephen Breyer, for instance, recently argued in dissent that "Congress would prefer a less-than-optimal interpretation of its statute to the grave risk of a constitutional holding that would set the statute entirely aside." (155) And, as discussed in this Part, the Bressman and Gluck study provides some support that interpreter fidelity to congressional wishes may include adherence to at least some of these substantive canons.

Although there are more than 100 substantive canons, (156) this survey asked the agency rule drafters nineteen questions about six substantive canons that seemed most relevant to agency statutory interpretation (and tracked those asked in the Bressman and Gluck study). Figure 5 presents the agency rule drafters' responses as to their knowledge and use of the substantive canons by name; unlike the semantic canons, to keep the survey under 200 questions, these questions were not asked about knowledge or use by concept. (157)

With respect to substantive-canon awareness, the federalism canons--the presumption against preemption of state law and the presumption against the waiver of sovereign immunity--were the clear winners with 78% and 66% of agency rule drafters indicating they knew the canons by name. (158) Constitutional avoidance was similarly well known at 62%. (159) By contrast, the other three substantive canons were not as well known: the presumption against an implied right of action (at 44%); the presumption against extraterritoriality (at 42%); and the rule of lenity (at 36%). (160) The reported use of each substantive canon was substantially lower with only the presumption against preemption above 40% (at 47%), followed by constitutional avoidance (at 28%) and the presumption against the waiver of sovereign immunity (at 23%). (161)

Of these canons, by comparison, the congressional respondents in the Bressman and Gluck study reported using constitutional avoidance at 25% (by concept) and the rule of lenity at 14% (by name). (162) Nearly four in five congressional respondents were familiar with either the federalism or preemption canons with half being familiar with both--and of those familiar with at least one, 65% indicated they play a role in drafting decisions. (163) And they found the clear statement rules to be virtually irrelevant. (164) In other words, there is decent evidence that some of these substantive canons are used in legislative drafting, but whether that translates to an indicator of agency interpreter fidelity is less clear. Indeed, at least one scholar (Mashaw) has suggested in the context of constitutional avoidance that agency interpreters are arguably not in the same position as judicial interpreters: "Obviously, administrators who fail to pursue implementation any time a constitutional issue looms on their horizon could not possibly carry out their legislative mandates effectively. Constitutionally timid administration both compromises faithful agency and potentially usurps the role of the judiciary in harmonizing congressional power and constitutional command." (165)

Because the substantive canons arguably do not reflect congressional wishes, Mashaw's observation may well apply to most or even all of them. But if these canons do reflect interpreter fidelity--as Justice Breyer and some of the congressional drafters surveyed have suggested-then the agency rule drafters' modest familiarity with, but lack of use of, these substantive canons suggests room for improvement. Perhaps the more important lesson here is that the application of substantive canons to agency statutory interpretation and their place within a faithful-agency interpretive framework are highly undertheorized and even less understood empirically.


This Part turns to the survey's thirty-five questions about the other main set of tools of statutory interpretation-legislative history, which some refer to as extrinsic canons. '166 As Bressman and Gluck have explained, like the canons, there is an ongoing debate on the use of legislative history in statutory interpretation, but the argument is different: "No one doubts that drafters are aware of legislative history or that they write it. Instead, the divide is over the constitutionality and effect on the legislative process of judicial reliance on legislative history and also its reliability as evidence of statutory meaning." (167)

That debate will not be repeated here. Instead, the present question is what role legislative history should play under a faithful-agency approach to agency statutory interpretation. And what effect does or should the legislative process have on agency statutory interpretation? Many would assert that the role of legislative history should be the same regardless of whether an agency or judge is the interpreter and whether legislative history is deemed to reveal congressional intent or statutory meaning. Strauss and the congressional respondents in the Bressman and Gluck study, however, would disagree.

Strauss argued nearly a quarter century ago that [l]egislative history has a centrality and importance for agency lawyers that might not readily be conceived by persons who are outside government and are accustomed to considering its relevance only to actual or prospective judicial resolution of discrete disputes." (168) He went on to paint a vivid picture of legislative history's role in agency statutory interpretation by depicting the law library of a federal agency:
   Alongside the statutes for which the agency is responsible, you
   will find shelf after shelf of their legislative
   history--collections that embrace not only printed materials such
   as might make their way to a depositary library, but also
   transcripts of relevant hearings, correspondence, and other
   informal traces of the continuing interactions that go on between
   an agency and Capitol Hill as a statute is being shaped in the
   legislative process, and perhaps afterwards in [the] course of
   implementation. (169)

One of the important benefits of "[t]he enduring and multifaceted character of the agency's relationship with Congress, he explained, is that the agency has comparative expertise "to distinguish reliably those considerations that served to shape the legislation, the legislative history wheat, from the more manipulative chaff." (170) Although not advanced in faithful-agency terms, as Mashaw has noted, Strauss's "basic case is that agencies have a direct relationship with Congress that gives them insights into legislative purposes and meaning .... For a faithful agent to forget this content, to in some sense ignore its institutional memory, would be to divest itself of critical resources in carrying out congressional designs." (171) It is perhaps for this reason that, as discussed in Part I.A, a number of scholars-in addition to Mashaw and Strauss--have called for a more purposivist approach to agency statutory interpretation (than to judicial interpretation) based on comparative institutional expertise. (172)

The Bressman and Gluck study painted a similar picture of Congress's relationship with its bureaucratic agents. Over nine in ten congressional drafters (94%) indicated that a purpose of legislative history is to shape the way agencies interpret statutory ambiguities, with one in five (21%) volunteering that legislative history also provides an oversight role for agency implementation of a statute it administers. (173) One congressional drafter provided a helpful example: "'We use everything from floor statements to letters to the agency--members know how to communicate with agencies and make their policy preferences known' ..." (174) Moreover, half of the congressional respondents (53%) emphasized the importance of legislative history in the appropriations context, as such legislative history specifies where the funds appropriated go within the administrative state. (175)

Whereas Strauss has provided his personal insights into the agency's relationship with legislative history and the congressional drafters have presented theirs, until now no study has attempted to uncover in any comprehensive manner the empirical realities of how federal agencies use legislative history in agency statutory interpretation. Part III .A presents the perspectives of the agency rule drafters surveyed on how their agencies participate in the legislative process. Part III.B evaluates their views on the purposes of legislative history, comparing descriptively the views of the agency rule drafters surveyed with those of the congressional respondents in the Bressman and Gluck study. Finally, Part III.C looks at the agency rule drafters' stances on the reliability of different types of legislative history, again comparing them with that of their previously surveyed congressional counterparts.

A. Federal Agencies in the Legislative Process

During the survey design phase, a number of agency officials suggested that the survey ask about the rule drafters' participation in the legislative process and, in particular, whether they worked on technical or substantive drafting. Technical drafting, the agency officials explained, deals with reviewing legislation to make sure it is textually and structurally coherent and consistent with existing law. Substantive drafting, by contrast, involves shaping the actual policy objectives of the proposed legislation. (176) Other officials further suggested that the survey ask not only about the rule drafters' personal participation but also about their agency's participation, as many general counsel offices have separate staffs for regulation and legislative affairs. Figure 6 presents the findings from these four questions. (177)

As Figure 6 illustrates, the rule drafters reinforced Strauss's portrayal of federal agencies' direct involvement in the legislative process. Nearly eight in ten (78%) indicated that their agency always or often participates in a technical drafting role for the statutes it administers (with another 15% indicating sometimes), and 59% reported that their agency always or often participates in a policy or substantive drafting role for the statutes the agency administers (with another 27% indicating sometimes). (178) It is not surprising that the numbers were lower for personal participation: 29% always or often participate in technical drafting with 29% more saying sometimes, and 18% always or often participate in substantive drafting with 29% more saying sometimes. (179) As indicated above, many agency general counsel offices have separate regulation and legislative affairs staffs, so the rule drafters surveyed here may not work often, if ever, on the legislative affairs side. One comment is illustrative: "This survey seems to assume that I have a role in both legislative and regulatory work I do not. I only work on the agency's regulatory actions and have no role in legislative work." (180)

The rule drafters were also asked if they personally or their agencies generally participate "in drafting legislative history (e.g., floor statements, committee reports, conference reports, hearing testimony and questions, etc.)" of statutes the agency administers. (181) These questions were similarly added based on feedback from agency officials during the survey design phase. One in four (24%) indicated their agency always or often participates in legislative history drafting with another 20% saying sometimes. (182) Personal participation was lower: only three rule drafters (3%) indicated they often participate, and none always participate; one in five (21%), however, indicated they sometimes participate. (183) Again, this disparity may be due in part to the separation of rulemaking and legislative functions within some agencies.

The rule drafters who commented on legislative history drafting provided additional insights. One indicated that she "wouldn't think agencies would have much of a public hand in this." (184) Another thought it would be "strange" and had never known my agency to do this, but I'm not very involved in the legislative work we do." (185) A third similarly doubted whether the agency drafted legislative history generally but noted some possibilities: "The agency would never draft legislative history documents other than testimony and responses to inquiries. However, it is possible that congressional staff could use Agency produced documents in drafting documents on behalf of the committee." (186)

In sum, these findings, based on answers to just six questions, provide an interesting yet limited window into the role of federal agencies in the legislative process. According to the rule drafters surveyed, agencies play a significant role in the technical and substantive drafting of statutes and even some role in the creation of legislative history-though in many agencies different staffs may do the legislative and regulatory work. As discussed further at the end of Part III, this structural legislative-regulatory separation in many agency general counsel offices merits deeper empirical inquiry.
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Title Annotation:Introduction through III. Legislative History A. Federal Agencies in the Legislative Process, p. 999-1038
Author:Walker, Christopher J.
Publication:Stanford Law Review
Date:May 1, 2015
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