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Inside agency statutory interpretation.

B. Purposes of Legislative History

Regardless of the extent to which the structuring of an agency may separate the legislative history experts from the rule drafters interpreting the statute, the rule drafters surveyed still emphasized the importance of legislative history in their statutory interpretation efforts. In particular, three in four (76%) agreed that, in general, legislative history is a useful tool for interpreting statutes; another 13% chose "other" (as opposed to the binary yes/no) to qualify their answer as "sometimes" or "it depends." (187)

To put that number in perspective, of the twenty-two interpretive principles included in the survey, legislative history (at 76%) had the sixth-highest response for use in interpretation. The only tools above it were Chevron deference (at 90%), the whole act rule (at 89%), the ordinary meaning canon (at 87%), the Mead doctrine (at 80%), and noscitur a sociis (at 79%). (188) Contrast that finding with the use of dictionaries as an interpretive tool, which came in at 39%. (189) By comparison, Bressman and Gluck found for their congressional respondents that "legislative history scored above both the textual and substantive canons, with roughly 70% of respondents stating that courts should use those canons when determining congressional intent, compared to 92% favoring legislative history." (190)

This question on legislative history also attracted the most comments- from one in five respondents (21%). (191) Many commenters attempted to qualify the usefulness of legislative history. For instance, one remarked, "In general, the legislative history can be a helpful tool to obtain insight into the purpose and motivation for certain provisions when the legislative history is robust. But, when the history is not as robust, it is not as useful a tool." (192) Another echoed this sentiment by explaining that "[i]t can be [useful] to the extent that Congress actually explains what it is trying to achieve." (193)

Another rule drafter, by contrast, seemed to channel Justice Scalia but with a pragmatic qualification: "It needs to be considered, because of the significance it may have with courts. However, the only thing all the members of Congress agreed upon was the words that actually made it into the statute." (194) In response to a different question about the reliability of legislative history, however, another rule drafter expressly harkened to Justice Scalia but asserted that legislative history may well be more helpful to an agency interpreter than a judicial interpreter:
   Although Justice Scalia would not be persuaded by any of these
   categories of legislative history, they are sometimes the only
   source an agency has to discern legislative intent and apply its
   discretion in a way that is consistent with legislative intent. In
   that regard, these types of legislative history can be more
   valuable to an agency than they would be to a court. (195)

A number of rule drafters also commented on the decreasing usefulness of legislative history. One explained that its usefulness "seems less so today, since so much legislative history is in electronic e-mail format that is unpublished and committee reports are less useful." (196) Another bemoaned the lack of "real legislative history' : "In many cases, the so-called legislative history just restates the statutory language in slightly different terms. That's not helpful. I don't know why staffers bother with such non-substantive 'explanations.'" (197) And yet another suggested the rise of the modern administrative state may have caused the fall of legislative history:
   Legislative history is sometimes useful, but it is becoming less
   so. Congress puts less time into drafting legislative history that
   is useful to interpretation of the statute and leaving more of that
   work to the agencies. The administrative rulemaking process is
   taking on a larger role in shaping the rules that actually apply to
   the country. (198)

The agency rule drafters also addressed the purpose of legislative history--being provided with the list used in the Bressman and Gluck study, which includes "the conventional judicial and scholarly assumptions" about purposes of legislative history. (199) Figure 7 presents these findings, descriptively comparing them to those from the Bressman and Gluck congressional respondents. (200)

As in the Bressman and Gluck study, the conventional understanding-that legislative history helps explain the purpose of the statute-was the purpose most identified by the agency rule drafters (at 93%), with four in five (80%) also seeing legislative history as important in explaining the meaning of particular statutory terms. (201) In contrast to the congressional respondents, however, the agency rule drafters did not seem to embrace as fully a number of other main purposes. For instance, only 39% of agency rule drafters indicated that legislative history is used to facilitate political "deals" that resulted in enacting the statute, whereas 92% of congressional respondents so indicated. (202) Similarly, only 47% of rule drafters agreed that legislative history is intended to shape the way the statute will apply to unforeseen future developments (compared to 78% of congressional respondents), and only 49% of rule drafters agreed that it is intended to indicate a disagreement over the meaning of a particular term or provision (compared to 77% of congressional respondents). (203)

With respect to its use as a guide for agency statutory interpretation, 65% of rule drafters indicated that legislative history is intended to shape the way agencies will interpret deliberate ambiguities. (204) This is lower than the 94% of congressional respondents who so indicated. (205) One explanation may be that the higher percentage comes from the principal who delivers the message, whereas the lower comes from the agent who is trying to make sense of that message. One rule drafter's comment reflects this potential explanation: "[I]n my experience, legislative history hasn't been particularly helpful in addressing ambiguities." (206)

Similar to the congressional respondents (at 55%), only 54% of rule drafters agreed that a purpose of legislative history was to indicate a decision to leave a deliberate ambiguity in a statute. (207) Resistance to the notion that legislative history is used to signal deliberate ambiguity may have more to do with a disagreement about (or at least distaste for) the idea that Congress deliberately creates ambiguities, much less confesses to them in legislative history. One rule drafter keyed in on this point in a comment to another question:
   The idea that congressional drafters intentionally create
   ambiguities that they expect agencies to interpret is often naive.
   In many cases there are ambiguities because legislators can not
   agree on issues but can compromise by accepting ambiguous language.
   Probably most often, ambiguities are the result of drafters not
   anticipating issues that the language presents. The latter
   observation is based on having drafted legislative as well as
   regulatory language. (208)

Although the rule drafters surveyed may have been less receptive to the agency-specific purposes for legislative history than their congressional counterparts, that should not distract from their overall embrace of legislative history as a useful tool when engaging in agency statutory interpretation. Indeed, 76% indicated that legislative history is a useful tool, and over 80% agreed that its objectives include explaining the purpose of the statute and the meaning of particular terms in the statute. For interpreters, those uses of legislative history are critical for resolving statutory ambiguities. One rule drafter nicely summed up this takeaway: "Legislative history can help to clarify Congress's purpose in enacting particular provisions, which in turn can help the Agency resolve ambiguities in a way that is consistent with legislative intent." (209)

C. Reliability of Legislative History

In proposing a rules-based approach to using legislative history in statutory interpretation that focuses on the time, place, and manner in which legislative history was created, Nourse has observed that some law professors have demonstrated "a stunning lack of knowledge about Congress's rules," resulting in both their own and the average lawyer's ignorance about how to read the congressional record and about how to use legislative history generally. (210) One would expect better from an agency rule drafter, who has extensive, daily experience in statutory interpretation and whose agency plays a substantial role in the legislative process. To gauge their understanding, the rule drafters were asked fifteen questions about the reliability of legislative history--almost all of which were also asked verbatim to the congressional respondents in the Bressman and Gluck study. (211)

1. Reliability of types of legislative history

Figure 8 reports how the agency rule drafters ranked a variety of the most common types of legislative history in terms of reliability. (212) The order of the reliability rankings is virtually identical to that of the congressional respondents in the Bressman and Gluck study. (213) The agency rule drafters, however, generally indicated that each type of legislative history is less reliable than was indicated by their congressional counterparts. For instance, 71% of congressional drafters ranked conference reports as very reliable compared to 59% of agency rule drafters; 69% to 37% for committee reports in support; 29% to 22% for committee reports in opposition; 20% to 13% for hearing transcripts; and 12% to 1% for floor statements by party leadership. (214)

The main takeaway is similar to that of the congressional respondents in the Bressman and Gluck study: committee-produced legislative history is the most reliable, though not per se reliable. (215) This point was driven home by one of the rule drafters: "Assuming a bill is debveloped [sic] in committee, that committee's reports together with any conference committee report is the only legislative history that I would give real significant weight." (216) By ranking legislative history materials that support the legislation above those that oppose it, the agency rule drafters seem to have grasped (at least to some extent) Nourse's fourth principle for reading legislative history: "[N]ever cite legislative history without knowing who won and who lost the textual debate." (217) Similarly, by ranking statements by party leadership as the least reliable on the list, they seem to echo the Bressman and Gluck congressional respondents' feedback that such statements are "nonexpert remarks by those having little to do with how the legislation was put together." (218)

Finally, it is worth noting that presidential signing statements (14% very reliable, 48% somewhat reliable) were ranked below the committee and confer ence reports but on par with floor statements by sponsors (8% very reliable, 57% somewhat reliable) and hearing transcripts (13% very reliable, 48% somewhat reliable). (219) The Bressman and Gluck study did not inquire into presidential signing statements, but they seem more relevant in the agency context. As noted in the Introduction, one complexity of principal-agent theory in the administrative state is that the agent serves at least two principals: Congress and the President. (220) One rule drafter noted this potential significance: "Presidential] signing statements may shape what agencies do, as reflective of the policy choice of the administration, but I don't view them as true legislative] history." (221) Asking one question on presidential signing statements does not even begin to help us understand the role of the President as another principal in agency statutory interpretation; much more work needs to be done. (222)

2. Factors that may affect reliability

The second set of questions on the reliability of legislative history inquired into a half dozen of the factors judges and scholars have identified as important in assessing the reliability of legislative history--the same factors and questions included in the Bressman and Gluck study. Figure 9 presents the findings as to both drafter populations. (223)

As was true of their reliability rankings for the different types of legislative history, the rule drafters' responses here generally tracked the congressional respondents' responses in terms of the order of reliability or importance of the factors. But the rule drafters surveyed also found each factor less likely to affect reliability than their congressional counterparts. This disparity may be explained in part by the fact that one in four rule drafters (24%) indicated they did not know if any of these factors affected reliability. (224) By contrast, with respect to the reliability of the nine types of legislative history discussed above and depicted in Figure 8, only two types garnered "I don't know" responses above 5%: presidential signing statements at 11%, and floor statements by party leadership at 9%. (225)

Many of the rule drafters surveyed appear to have understood (at least to some extent) Nourse's second and third principles (later textual decisions trump earlier ones, and the importance of proximity to the textual decision, respectively) for reading legislative history, both of which deal with the timing of the legislative history. (226) The agency rule drafters surveyed identified the timing concerns--"[h]ow close the statement/report was made prior to the day the legislation passed" and "[w]hether the statement was made after the legislation passed"--as the top two factors from this list of six that affect reliability. (227) Again, these findings are consistent with those of their congressional counterparts in the Bressman and Gluck study. (228) Also in line with the congressional respondents, the agency rule drafters were least concerned from a reliability perspective with whether the actual members of Congress had drafted the legislative history or had even heard or read it. (229)

In sum, while the data here are limited and comparisons should be made cautiously, the agency rule drafters surveyed seemed to rank reliability of legislative history in roughly the same order as the Bressman and Gluck congressional respondents. The biggest difference is that the rule drafters, on balance, tended to consider legislative history less reliable than their congressional counterparts. And as to various factors that could affect reliability, one in four confessed to not knowing how to consider their effect.

The findings from these thirty-five questions on the use of legislative history in agency statutory interpretation and the role of federal agencies in the legislative process only scratch the surface of an area of administrative law that is ripe for empirical investigation. From an agency interpretation perspective, for example, the separation between legislative and regulatory functions within an agency raises a number of questions that this study cannot answer, including the following: Under an agency's typical structure, does the agency's legislative experience get incorporated into its rulemaking activities, such that the Congress-agency relationship Strauss detailed actually extends to agency statutory interpretation? Or do the legislative experts at the agency only get involved once there is a threat of judicial challenge? Are there better ways to structure an agency general counsel's office to make sure that interaction occurs?

One agency rule drafter volunteered an insightful observation in the somewhat analogous context of the interaction between an agency's rulemaking staff and the government's litigators:
   [M]ost rule drafters and attorneys that practice admin law in the
   government do not handle the litigation associated with rules. I
   think that is kicked to DOJ [the U.S. Department of Justice], so I
   definitely] think there is a big disconnect between drafters and
   litigators/those who are defending the rule in court. We often
   don't talk to each other until the rule is challenged. There is a
   lot we can learn from the litigators, ways we can be more proactive
   in the rulemaking rather than defensive after the fac[t]. (230)

This comment also reflects this author's experience while working on the Justice Department's Civil Appellate Staff, which defends federal agencies and their statutory interpretations in a variety of contexts. (231) Once a regulation is challenged in court, the government litigators marshal all federal agency resources--the relevant agency rule drafters, the policy and legislative affairs teams, the scientists and economists where applicable, and so forth--to defend the regulation and provide the court with an accurate and detailed background on the regulatory and statutory scheme. How many agencies encourage such interaction prior to litigation and instead during the rule-drafting process, however, is an important question that merits further inquiry.

In light of the theoretical arguments that have been advanced about the distinct role legislative history (and purposivism more generally) should play in agency statutory interpretation, there is a critical need for further empirical work into the relationship between Congress and federal agencies in the legislative process as well as into the agency's internal use of legislative history in the rulemaking process. Unlike many of the questions asked in this survey that more directly implicate confidentiality or deliberative process privilege concerns, agency general counsels may be more willing to entertain agency-specific case studies on their agency's role in the legislative process. This seems like a perfect research project to be pursued through the Administrative Conference of the United States (ACUS). (232)


This fourth and final Part explores the rule drafters' familiarity with and use of various administrative law doctrines in agency statutory interpretation. It probably comes as no surprise that nearly half of the survey questions--97 of 195--dealt with administrative law. (233) This Article focuses on the findings from these questions to explore various aspects of agency interpreter fidelity. (234)

Part IV.A presents the rule drafters' responses as to their perceived relationship to Congress. Part IV.B explores their views about what types of issues Congress intends to delegate by ambiguity to federal agencies. Part IV.C explores the agency rule drafters' knowledge and use of the key deference doctrines with respect to judicial review of agency statutory interpretations.

A. Principal-Agent Interpretive Relationship

As discussed in Part I.A, one of the most interesting findings from the Bressman and Gluck study is that the congressional drafters surveyed perceived Congress's primary interpretive relationship to be not with courts but with federal agencies. (235) Indeed, as Bressman and Gluck have noted, the congressional respondents "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.'" (236) Accordingly, they conclude that "current theory and doctrine are focusing on the wrong cues and the wrong relationships"--the wrong relationship being that between Congress and courts. (237)

Putting to one side the wrong cues, which Part IV,B addresses, it is not as clear that modern administrative law doctrine is necessarily focused on the wrong relationship. If anything, the Supreme Court's post-Chevron precedent seems to expressly embrace the agency as the primary interpreter. And this doctrine has developed in large part because of the separation of powers values that undergird congressional delegation of interpretive authority to federal agencies. (238) Even the Court's framing of the Chevron rule defines the primacy of the Congress-agency relationship in these terms: "Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows." (239) So does Chevron itself when holding that an agency's reasonable interpretation of an ambiguous statute controls even it it is not the reading the court would have reached if the question initially had arisen in a judicial proceeding." (240)

Over the last decade the Court has deepened its commitment to this concept that federal agencies--not courts--are the primary and authoritative interpreters of statutes Congress has entrusted them to administer. Three cases are illustrative.

First, in 2005, the Court held that an agency's interpretation of an ambiguous statute it administers trumps a court's prior interpretation of the statute. (241) The Brand X Court explained that this conclusion necessarily follows from the fact that the primary relationship in agency statutory interpretation is between Congress and federal agencies, not between Congress and courts:
   Since Chevron teaches that a court's opinion as to the best reading
   of an ambiguous statute an agency is charged with administering is
   not authoritative, the agency's decision to construe that statute
   differently from a court does not say that the court's holding was
   legally wrong. Instead, the agency may, consistent with the court's
   holding, choose a different construction, since the agency remains
   the authoritative interpreter (within the limits of reason) of such
   statutes. (242)

Second, the Court clarified in 2009 that the ordinary remand rule--that is, if an error is found, a court generally should remand to the agency for additional investigation or explanation as opposed to the court deciding the issue itself--applies even to questions of agency statutory interpretation. (243) There, the Negusie Court held that Chevron deference to an agency's interpretation was inappropriate when the agency misread prior judicial precedent and erroneously concluded that such precedent bound it. Instead of providing its own interpretation of the statute, however, the Court remanded to the agency to interpret the statute in the first instance. In reaching this conclusion, the Court relied on Brand X and its understanding that agencies are the primary interpreters: "This remand rule exists, in part, because 'ambiguities in statutes within an agency's jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion.'" (244)

Finally, in 2013, the Court held in City of Arlington v. FCC that Chevron deference applies even to an agency's interpretation that defines "the scope of its regulatory authority (that is, its jurisdiction)." (245) In reaching this conclusion the Court reiterated its understanding of the primary principal-agent interpretive relationship: "Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency. Congress knows to speak in plain terms when it wishes to circumscribe, and in capacious terms when it wishes to enlarge, agency discretion." (246) In sum, while there are dissents from and disagreements about the holdings in these cases, it seems fair to conclude that the Court's post-Chevron doctrine has focused on the right relationship--that between Congress and federal agencies.

Whereas the Court and the congressional drafters surveyed have prioritized the court-agency relationship as primary in agency statutory interpretation, until now we had little insight into whether federal agency rule drafters perceive their role--and their organization's relationship with Congress--in a similar light. To attempt to understand the rule drafters' perspectives on these issues, the survey asked them about these cases by name and concept. This Part focuses on the concepts, whereas Part IV.C focuses on the cases by name.

First and foremost, the rule drafters surveyed generally agreed with the bedrock Chevron principle that federal agencies, not courts, are the primary interpreters of statutes Congress has charged them to administer. Without referring to Chevron by name, the rule drafters were asked whether they agreed with the following statement: "If a statute is ambiguous and the agency's construction is reasonable, a court must accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation." (247) Eight in ten rule drafters (85%) indicated that they either strongly agreed (45%) or agreed (40%), and another one in ten (10%) agreed somewhat. Only 5% disagreed, with one rule drafter indicating strong disagreement. (248) No doubt the following comment reflected the latter's perspective: "'[A] court MUST ACCEPT the agency's interpretation'? Uh, no. Maybe they should, but after all, it is courts that review agency interpretations and not the other way around." (249) But in general, the rule drafters surveyed seemed to embrace the idea that federal agencies are the primary partners of Congress in agency statutory interpretation.

When asked about the Brand X principle, the agency rule drafters surveyed were not quite as bullish. Without referring to Brand X by name, the rule drafters were asked whether they agreed with the following statement: "A court's opinion as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative; instead, the agency may choose a different construction so long as it is reasonable." (250) Again, a strong majority (65%) either agreed (39%) or strongly agreed (25%), and another 10% agreed somewhat. But one in four (26%) disagreed (21%) or strongly disagreed (5%). In other words, not only were there fewer who agreed strongly (25% to 45%), but five times as many who disagreed (26% to 5%).

Accordingly, it seems that, while the rule drafters viewed federal agencies as the primary interpreters of statutes they administer, they were also more sensitive to the importance of courts than were the Bressman and Gluck congressional respondents. The overwhelming 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 influence their rule-drafting process. For instance, nearly four in five rule drafters indicated that it matters to their rule-drafting practices whether courts routinely rely on the canons. (252) Perhaps there are more rule drafters who would agree with Justice Scalia's dissent in Brand X-in particular, that it is "not only bizarre" but "probably unconstitutional" to make "judicial decisions subject to reversal by executive officers." (253) In all events, the findings uncovered here only start the conversation on how federal agencies view their role in the modern administrative state in relation to Congress and the courts. Much more work needs to be done. (254)

B. Scope of Lawmaking Delegation

Although there seems to be an understanding among the Supreme Court, Congress, and the rule drafters surveyed that federal agencies are the primary interpreters of ambiguous statutes Congress has charged them to administer, not everyone agrees about the scope of that interpretive authority. As the congressional respondents in the Bressman and Gluck study made clear, not every type of ambiguity left in a statute is intended to delegate lawmaking authority to federal agencies. (255) This finding no doubt is at least part of the conclusion Bressman and Gluck reach that "current theory and doctrine are focusing on the wrong cues." (256)

To assess the rule drafters' understanding about which ambiguities signal delegation, the survey asked about the same eight types of ambiguities covered in the Bressman and Gluck study and added two more: ambiguities relating to the agency's own jurisdiction or regulatory authority and those implicating serious constitutional questions. Figure 10 presents the findings as to both the agency rule drafter and congressional drafter populations. (257)

All ten of these types of ambiguity relate to the ongoing judicial and scholarly debate about the scope of lawmaking delegation that is often termed the Chevron "Step Zero" inquiry. (258) The survey findings on these ten questions can be grouped into three main observations.

1. Consensus delegation: implementation details, agency expertise, omissions in statutes, and federal-state agencies' labor division

With respect to the gaps or ambiguities that most congressional respondents indicated federal agencies should fill, there was remarkable agreement among the rule drafters surveyed here. Perhaps unsurprisingly, the top vote-getter in both populations was ambiguities relating to the details of implementation, with 99% of both populations agreeing that Congress intends for agencies to fill such gaps. (259) The one rule drafter to dissent chose "[n]one of the above, indicating that Congress does not intend for agencies to fill any of the types of ambiguities listed. (260) Most agency rule drafters and congressional drafters also agreed that Congress intends to delegate ambiguities relating to the agency's area of expertise (92% and 93%, respectively); relating to omissions in the statute (72% for both); and relating to the division between state and federal agencies when both are given implementation roles (65% and 70%, respectively). (261)

From a faithful-agency perspective, it seems the agency rule drafters surveyed understood that their main lawmaking role involved filling in the implementation details in statutes, resolving ambiguities where the federal agency actually has expertise, and filling in the statutory holes or omissions. Those delegated roles seem like the predominant ones even if the congressional drafters surveyed in the Bressman and Gluck study (who wholeheartedly agreed) were not representative of Congress as a whole. (262) Similarly, it seems reasonable to conclude, as the majority of both the agency rule drafters and congressional drafters surveyed did, that when Congress does not specify that a state agency should take the lead, Congress intends for the federal agency to make that determination (as opposed to, for instance, a court or state agency).

2. Both less sure: major questions and preemption

Like the Bressman and Gluck congressional respondents, the agency rule drafters here were less confident and more conflicted about whether Congress intends to delegate major policy questions by ambiguity. This is an important issue in administrative law, as the Supreme Court has carved out an exception to the Chevron presumption of delegation. Bressman and Gluck nicely frame this major questions doctrine as "a presumption of nondelegation in the face of statutory ambiguity over major policy questions or questions of major political or economic significance." (263) This doctrine exists, as Justice Scalia has famously observed, because it is presumed that Congress does not ... hide elephants in mouseholes." (264)

Both studies approached this question about the major questions doctrine by asking it in three different ways, with the results as follows:

* Ambiguities/gaps relating to major policy questions: 56% agency rule drafters, 28% congressional drafters;

* Ambiguities/gaps implicating questions of major economic significance: 49% agency rule drafters, 38% congressional drafters; and

* Ambiguities/gaps implicating questions of major political significance: 32% agency rule drafters, 33% congressional drafters. (265)

In other words, like the congressional respondents, far fewer agency rule drafters believed that Congress intends to delegate ambiguities implicating major questions than the ambiguities discussed in Part IV.B.1 about implementation details and agency expertise. But twice as many agency than congressional respondents (56% to 28%) believed that Congress intends to delegate ambiguities relating to major policy questions.

Based on the comments made by various drafters surveyed in Congress and the federal agencies, one can construct an informative exchange between Congress and a federal agency regarding whether Congress intends to delegate by ambiguity--or actually does delegate--major questions to federal agencies. Consider the following dialogue, pieced together with some artistic license but with the actual comments in quotation marks:
Agency:     "Generally major policy, economic, or political
            decisions should be made by congress unless
            congress has delegated to the agency on the basis
            of the agency's expertise." (266)

Congress:   Completely agree. "[Delegating major questions],
            never! [We] keep all those to [our]selves." (267)

Agency:     But "[s]ometimes issues of substantial political
            import are left to agencies ...." (268)

Congress:   Well, "[w]e try not to leave major policy
            questions to an agency .... [They] should be
            resolved here." (269)

Agency:     Trying is different than succeeding. "While
            members of Congress and their staff would likely
            answer these questions [about delegating major
            questions] very differently, the reality is that
            Congress often leaves unanswered decisions to the
            implementing agency, not because they trust the
            agency, but in order to achieve the necessary
            consensus to move a bill." (270)

Congress:   Fair enough. "Sometimes because of controversy, we
            can't say what to include--either complexity or
            controversy. (271)

Agency:     Agreed. In other words, "Congress should make the
            major policy decisions in a statute, but can leave
            details of precise implementation to agency
            regulations. However, Congress sometimes passes
            laws that leave broad areas to agency discretion
            in order to achieve a 779 political compromise."

Congress:   Yes, "sometimes [we] have to punt." (273)

Agency:     No, "Congress often punts on difficult political
            questions. (274)

Congress:   Okay, it happens "[w]hen we can't reach
            agreement." (275)

Agency:     "I think [not delegating major questions to
            agencies] is what Congress thinks it is doing, but
            in reality, I think agencies are often left to
            decide almost all of these-and I think Congress
            doesn't understand the types of ambiguities it
            leaves when it drafts legislation. Congress is
            producing some pretty terrible stuff to work
            with." (276)

Indeed, this dialogue may help explain why the agency rule drafters surveyed were more willing to accept that Congress intends to delegate major policy questions by ambiguity to federal agencies.

The results were similar with respect to ambiguities or gaps relating to the preemption of state law: 46% of agency rule drafters agreed that Congress intends to delegate by ambiguity on these questions, compared to 36% of the congressional respondents. (277) As Bressman and Gluck have noted, this substantial, but not overwhelming, response from both drafter populations is similar to the divide in the scholarly debate and may be due in part to the Supreme Court's failure to date to provide more clarity. (278)

3. At least agencies think so: yes, for scope of agency's jurisdiction; no, for serious constitutional questions

With respect to the two questions asked only of the agency rule drafters (and not of the congressional drafters), the rule drafters had very different reactions. Only one in four rule drafters (24%) believed that Congress intends for federal agencies to fill gaps or ambiguities implicating serious constitutional questions. (279) That was the clear loser for this question. The three next lowest responses concern the major questions doctrine discussed in Part IV.B: major political questions (at 32%), preemption of state law (at 46%), major economic questions (at 49%), and major policy questions (at 56%). (280) These findings about whether agencies are delegated authority to resolve major questions, constitutional questions, or preemption issues may shed light on the current debates among scholars, judges, and policymakers about whether such substantive canons should trump Chevron deference. (281)

By contrast, three in four rule drafters (75%) indicated that Congress intends for federal agencies to fill gaps or ambiguities relating to the agency's own jurisdiction or regulatory authority. (282) Only ambiguities about implementation details (at 99%) and those relating to the agency's area of expertise (at 92%) received more responses from the rule drafters. (283) And in another question asking about which factors affect whether Chevron deference applies, nearly half (46%) indicated that it matters "[w]hether the agency's statutory interpretation sets forth the bounds of the agency's jurisdiction or regulatory authority." (284) That question, however, did not ask in what way such a factor would matter.

At first blush, it may be puzzling that 75% of rule drafters believed that Congress intends to delegate such questions by ambiguity. After all, "[j]urisdictional questions often overlap with or are indistinguishable from 'major questions,"' such that Bressman and Gluck "suspect[ed] that [their congressional drafter] respondents would emphasize the obligation of Congress, not agencies, to resolve such questions." (285) There are at least two probable explanations for this apparent inconsistency. First, this survey went live after the Court decided City of Arlington v. FCC, discussed in Part IV.A, which held that "an agency's interpretation of a statutory ambiguity that concerns the scope of its regulatory authority (that is, its jurisdiction) is entitled to [Chevron] deference." (286) Many rule drafters surveyed probably knew of that definitive precedent. Second, and more fundamentally, this question about the scope of an agency's authority to decide its own authority was asked not of congressional drafters but of agency rule drafters. After all, an agent may be naturally inclined to view her role in defining her authority more broadly than would the principal.

C. The Judicial Deference Doctrines

This final Part turns to the rule drafters' awareness of the foundational deference doctrines for judicial review of administrative interpretations of law Chevron, Mead, Skidmore, and Auer/Seminole Rock--as well as whether the doctrines play a role in their drafting decisions.

Administrative law recognizes two main deference doctrines relating to agency statutory interpretation: Chevron and Skidmore. The first is the familiar Chevron two-step approach, under which a reviewing court defers to an agency's interpretation of a statute it administers if, at step one, the court finds "the statute is silent or ambiguous" and then, at step two, determines that the agency's reading is a "permissible construction of the statute." (287) "The court need not conclude that the agency construction was the only one it permissibly could have adopted ... or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." (288) The second is Skidmore, under which an agency's interpretation does not control so long as it is reasonable but, instead, is given "weight" based on "the thoroughness evident in [the agency's] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade." (289)

Strauss has helpfully reframed these doctrines as "Chevron space" and "Skidmore weight." (290) An agency receives Chevron space to fill in holes in statutes it administers because Congress empowered the agency to be "the authoritative interpreter (within the limits of reason) of such statutes." (291) Or, as Strauss puts it, "the natural role of courts, like that of referees in a sports match, is to see that the ball stays within the bounds of the playing field and that the game is played according to its rules. It is not for courts themselves to play the game." (292) Skidmore weight, by contrast, "addresses the possibility that an agency's view on a given statutory question may in itself warrant respect by judges who themselves have ultimate interpretive authority" even when Chevron space does not apply. (293) Under Skidmore, the agency retains the power to persuade based on its special knowledge and experience that may qualify it as an expert on statutory meaning and purpose. Among other sources of agency expertise, agencies often have nationwide experience in implementing the statute and may well have assisted in the drafting of the statute. (294)

It is important to note that the lack of Chevron space may occur in one of two ways: Congress has not delegated interpretive authority to the agency; or Congress has delegated it, but the agency has "cho[sen] not to exercise that authority, but rather to guide--to indicate desired directions without undertaking (as [it] might) to compel them." (295) This was the basic takeaway from Mead: "[A] very good indicator of delegation meriting Chevron treatment [is] express congressional authorizations to engage in the process of rulemaking or adjudication that produces regulations or rulings for which deference is claimed." (296) The Mead Court also noted that it had "sometimes found reasons for Chevron deference even when no such administrative formality was required and none was afforded." (297) Finally, the Mead Court explained that Skidmore weight applies when Chevron space does not. (298)

A final judicial review doctrine evaluated in the survey is Auer or Seminole Rock deference, which deals with reviewing an agency's interpretation of its own regulations. (299) This doctrine instructs courts that an agency's interpretation of its own regulation is given "controlling weight unless it is plainly erroneous or inconsistent with the regulation." (300) Scholars, (301) joined by Justice Scalia (302) and more recently this Term by Justices Thomas and Alito, (303) have called for the Court to revisit this doctrine.

The rule drafters' responses with respect to these administrative law doctrines can be grouped into three main findings (304)

1. Chevron most known and used by name, followed by Skidmore then Mead

The agency rule drafters were asked whether they were familiar, by name, with these "interpretive doctrines related to how much deference courts will accord federal agency decisions" as well as whether "these doctrines play a role in [their] rule drafting decisions." (305) Figure 11 depicts the agency rule drafters' responses to these questions. (306)

As Figure 11 illustrates, 94% of the rule drafters knew Chevron deference by name, followed by 81% for Skidmore, 61% for Mead, and 53% for Seminole Rock/Auer. Two rule drafters were familiar with certain doctrines by name, but would have to "look them up to remember the details." (308) At 94%, Chevron was the most known among the rule drafters surveyed of all the interpretive tools covered by name in the survey. In the Bressman and Gluck study, Chevron deference was also the big winner in the name recognition game with awareness by 82% of congressional respondents. (309) Skidmore (at 39%) and Mead (at 28%), however, were far less known among congressional respondents than among the rule drafters surveyed here. (310) This should not be too surprising; agency rule drafters, after all, are (hopefully) thinking about administrative law doctrines on a much more regular basis than their congressional counterparts.

With respect to the role of these doctrines in drafting decisions, the agency rule drafters' reported use of these doctrines follows the same pattern, with varying levels of less reported use than familiarity: Chevron at 90%, Skidmore at 62%, Mead at 49%, and Seminole Rock/Auer at 39%.311 One in ten rule drafters (11%), however, also indicated that none of these deference doctrines played a role in their drafting decisions. One rule drafter's comment may summarize the sentiments of this minority view:
   Honestly ... not so much. I generally try to make a rule conform
   with a statute as much as possible. If the statute has gaps, I rely
   on my agency's technical expertise for the best, most reasonable
   way to fill them. That may be what these doctrines ultimately stand
   for, but I think of it in terms of what is practicable and honest,
   not what the court cases specifically say. (312)

With nine in ten rule drafters (90%) indicating that Chevron plays a role in their drafting decisions, Chevron was reported as used by the most rule drafters surveyed of all the interpretive tools inquired about in this survey. (313) Again, Chevron (at 58%) was also the big winner in the use-by-name game among congressional respondents. (314)

Unlike in the congressional context, these findings with respect to the rule drafters' use of the various administrative law deference doctrines have implications beyond how federal agencies understand their relationship with Congress and the scope of congressional delegation of lawmaking authority to federal agencies. The findings also shed light on how agency interpretive practices could differ depending on whether the agency believes Chevron or Skidmore will apply. As explored elsewhere, the vast majority of agency rule drafters surveyed think about judicial review when drafting statutes and understand Chevron and Skidmore and how their chances in court are better under Chevron. Indeed, 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. (315)

In other words, when rule drafters indicate they "use" administrative law doctrines when interpreting statutes, it could mean that they are more or less aggressive in their interpretive efforts depending on which deference standard applies. Understanding how agencies perceive and use the deference doctrines in rule drafting can shed light on how Congress or courts can modify those doctrines to control and patrol congressional delegations of lawmaking authority to its bureaucratic agents. These findings on how the rule drafters use the administrative law deference doctrines--and how, in turn, congressional or judicial modification of the deference doctrines may shape agency statutory interpretation--are explored in much greater detail elsewhere. (316)

2. Big winner by concept: Mead (and agency expertise)

As noted in Part IV.C.1, fewer rule drafters knew (61%) and used (49%) Mead by name than Chevron or Skidmore. But when asked if they knew the principles set forth in Mead--that is, that congressional authorization for, and agency use of, rulemaking or formal adjudication are strong indicia of congressional delegation of law-elaboration authority to agencies (317)--their answers indicate they understood the Mead doctrine in practice. In particular, the rule drafters were asked whether eight different factors "affect whether Chevron deference (as opposed to Skidmore deference or no deference) applies to an agency's interpretation of an ambiguous statute it administers." Table 1 presents their answers to this question. (318)

The leading factors the agency rule drafters reported to affect whether Chevron deference applies are the two Mead principles: whether Congress authorized the agency to engage in rulemaking and/or formal adjudication under the statute (84%), and whether the agency promulgated the interpretation via rulemaking and/or formal adjudication (80%), followed closely by whether the agency has expertise relevant to interpreting the statutory provisions at issue (79%). (319) No other factor received an affirmative response from more than half of the rule drafters surveyed. The longstanding nature of the agency's interpretation garnered 43%, its contemporaneous nature 20%, and its furtherance of the uniform administration of law 18%. (320) Perhaps most remarkably, only one in ten (9%) indicated that whether the agency is politically accountable for its interpretation affects Chevron deference. (321) In the comments, one legal realist suggested an additional factor: "A review of the cases suggests] that whether a court is inclined to agree with the agency sometimes dictates whether it will apply Chevron." (322)

With the rule drafters flagging the two Mead principles at 84% and 80%, the Mead doctrine was one of the most reported as used among the interpretive tools tested in this study. Only Chevron (at 90%), the whole act rule (at 89%), and the ordinary meaning canon (at 87%) were reported as used by more of the rule drafters surveyed. (323) Bressman and Gluck also indicated that, when congressional drafters were asked about the doctrines by concept,
   Mead was a "big winner" in our study--the canon whose underlying
   assumption was most validated by our [congressional] respondents
   after Chevron: 88% told us that the authorization of
   notice-and-comment rulemaking (the signal identified by the Court
   in Mead) is always or often relevant to whether drafters intend for
   an agency to have gap-filling authority. (324)

In other words, while Justice Scalia and a number of scholars might be right that Mead has "[m]uddled" (325) the approach courts apply to determine if Chevron applies to a particular agency statutory interpretation, (326) it seems agency rule drafters and congressional drafters--at least those surveyed in these two studies--are fairly adept at recognizing the Mead touchstones for congressional delegation.

3. What about Seminole Rock/Auer?

It is a bit of a puzzle what impact Seminole Rock/Auer deference has on the two in five agency rule drafters (39%) who said they think about it when drafting regulations. One comment, however, may shed some light. Re. Seminole Rock/Auer, I personally would attempt to avoid issuing ambiguous regulations that we would then have to interpret." (327) In other words, the rule drafters who indicated Auer deference plays a role in drafting decisions may be saying they attempt to avoid drafting ambiguous regulations.

Or perhaps because Auer is so deferential to an agency's interpretation of its own regulation, the rule drafters may be saying they do not have to worry about being clear and precise, as they can always clarify and clean up in subsequent guidance. That two in five rule drafters confirmed that Auer deference plays a role in drafting may also provide some support for Justice Scalia's call to revisit the doctrine due to the odd incentives it may create for agency drafting: "[T]he power to prescribe is augmented by the power to interpret; and the incentive is to speak vaguely and broadly, so as to retain a 'flexibility' that will enable 'clarification' with retroactive effect." (328)

Unfortunately, there was not enough space in the survey to ask how the rule drafters "use" Auer deference when drafting regulations and interpreting statutes. It would be interesting to know how exactly agency rule drafters use Auer to assess whether Justice Scalia's intuitions about perverse incentives are empirically grounded. But the fact that two in five rule drafters surveyed indicated that they are using Auer deference when drafting regulations may well persuade many that it is not worth preserving, as such a doctrine should play no role at the initial regulation-drafting stage. In all events, this is another area of agency statutory interpretation that could benefit from deeper empirical investigation.


The findings reported in this Article shed unprecedented light inside the black box that is agency statutory interpretation. It turns out that the rule drafters surveyed knew the canons of interpretation and administrative law doctrines as well as, if not better than, their congressional counterparts surveyed in the Bressman and Gluck study. Moreover, the findings suggest that federal agencies play a critical role in the legislative process such that the rule drafters have the intimate understanding of legislative history that Strauss hypothesized nearly a quarter century ago. The study's findings also provide a new window into how federal agencies view themselves as faithful agents of Congress, as well as the role of courts in this relationship--at least from the viewpoint of the agency rule drafters surveyed. In sum, the rule drafters surveyed perceived the principal-agent relationship with Congress, where federal agencies--not courts--are the primary interpretive agents but courts play a meaningful oversight role, such that rule drafters often think about subsequent judicial review when interpreting statutes.

In addition to contributing to the legal and political science literature on statutory interpretation and the modern administrative state, these findings provide valuable guidance for the real-world actors who actually make the administrative state function-whether that be the congressional principal who wants to ensure federal agencies faithfully exercise their delegated lawmaking authority, the agency general counsel who strives to train her rule drafters to utilize proper interpretive practices, or the judge who is tasked by Congress to review an agency statutory interpretation or interpret a regulation.

Of all the empirical findings uncovered and theories confirmed or called into question, however, the most important takeaway is that much more empirical and theoretical work needs to be done. If the democratic (and perhaps constitutional) legitimacy of congressional delegation of lawmaking authority to the regulatory state depends on faithful agency, then Congress, courts, and scholars need to spend much more time understanding the empirical realities of statutory interpretation inside the modern administrative state.

(1.) See Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994).

(2.) See Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355, 356-57 (2012). To be sure, the administrative state is not purely a creature of the New Deal. See generally Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012) (tracing the history of the regulatory state from the Founding to the Gilded Age). But its rise as a predominant lawmaking branch is of more recent vintage. See Stack, supra, at 356-57.

(3.) See Clyde Wayne Crews, Jr., Competitive Enter. Inst., Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State 20 & fig. 13,21 & fig.14 (2014) (reporting the total pages in 2013 as 175,496).

(4.) See Exec. Order No. 13,655, 78 Fed. Reg. 80,451, 80,462 (Dec. 31, 2013) (displaying the last page from 2013); see also Crews, supra note 3, at 61 (noting that 1151 of the 80,462 pages were blank). See generally Maeve P. Carey, Cong. Research Serv., R43056, Counting Regulations: An Overview of Rulemaking, Types of Federal Regulations, and Pages in the Federal Register 17 tbl.6 (2013) (providing year-by-year statistics on the content of the Federal Register by pages and actual numbers of proposed and final rules).

(5.) Compare Pub. L. No. 113-1, 127 Stat. 3 (2013), with Pub. L. No. 113-144, 128 Stat. 1751,1752 (2014) (reflecting the number of pages taken up with public laws).

(6.) Nuno Garoupa & Jud Mathews, Strategic Delegation, Discretion, and Deference: Explaining the Comparative Law of Administrative Review, 62 Am. J. Comp. L. 1, 5-6 (2014); see also John D. Huber & Charles R. Shipan, Deliberate Discretion?: The Institutional Foundations of Bureaucratic Autonomy 26 (2002) ("The principal-agent framework from economics has played an extremely prominent and powerful role in th[e] institutional approach to relations between politicians and bureaucrats."); Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749,1767-76 (2007) (reviewing the positive political theory account of administrative procedures).

(7.) Congressional oversight and control has been the central focus in the political science literature with foundational contributions by Mathew McCubbins, Roger Noll, and Barry Weingast (collectively known as "McNollgast"). See, e.g., Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. Econ. & Org. 243, 254 (1987); Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 Am. J. Pol. Sci. 165,166 (1984); Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 Va. L. Rev. 431, 468-81 (1989) [hereinafter McCubbins, Noll & Weingast, Structure and Process].

(8.) See, e.g., Terry M. Moe, The New Economics of Organization, 28 Am. J. Pol. Sci. 739, 765-72 (1984) (applying principal-agent theory to the administrative state and detailing asymmetries and other complications); see also Gary J. Miller, The Political Evolution of Principal-Agent Models, 8 Ann. Rev. Pol. Sci. 203 (2005) (reviewing political science literature on the evolution of the principal-agency model for the administrative state); Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts, 119 Harv. L. Rev. 1035, 1043 (2006) ("The basic principal-agent dilemma, of which legislative delegation is a subspecies, involves a tradeoff between the principal's desire to exploit the agent's informational advantages and the principal's concern that the agent will pursue divergent goals.").

(9.) See, e.g., Miller, supra note 8, at 211-12; Moe, supra note 8, at 768-69. The legal literature has also grappled with this principal-agent dilemma in the administrative state-focusing primarily on Congress's imposition of agency procedures via statute and its enlistment of the judicial branch to monitor and constrain agency behavior. See, e.g., Bressman, supra note 6, at 1749, 1751-55 (combining positive political theory with legal scholarship on administrative law to understand courts' role in "mediating the strategic needs of both political branches for control of agency action" (italics omitted)); Garoupa & Mathews, supra note 6, at 5-9 (utilizing principal-agent theory to model "the interaction between three institutions"--"the legislature, an agency, and a reviewing court"--comparatively across various national governments worldwide); see also McNollgast & Daniel B. Rodriguez, Administrative Law Agonistes, 108 Colum. L. Rev. Sidebar 15 (2008), /wp-content/uploads/2008/04/15_McNollgast.pdf (responding to Bressman, supra note 6).

(10.) For a literature review of the application of positive political theory to agency statutory interpretation, see Matthew C. Stephenson, Statutory Interpretation by Agencies, in Research Handbook on Public Choice and Public Law 285 (Daniel A. Farber & Anne Joseph O'Connell eds., 2010).

(11.) For an overview of the various models, see Brigham Daniels, Agency as Principal, 48 Ga. L. Rev. 335, 345-71, 358 fig.1, 360 fig.2, 365 fig.3, 366 fig.4, 367 fig.5, 368 fig.6, 369 fig.7, 370 fig.8 (2014).

(12.) Adrian Vermeule, The Delegation Lottery, 119 Harv. L. Rev. F. 105, 105-06 (2006),

(13.) See Daniels, supra note 11, at 383-411.

(14.) U.S. Const, art. I, [section] 1.

(15.) The debate over the constitutional legitimacy of such broad delegation of lawmaking authority to federal agencies, which lies outside the scope of this Article, is rich and ongoing. For a recent example, compare Philip Hamburger, Is Administrative Law UNLAWFUL? (2014), with Gary Lawson, The Return of the King: The Unsavory Origins of Administrative Law, 93 Tex. L. Rev. (forthcoming May 2015) (reviewing Hamburger, supra), available at, and Adrian Vermeule, No, 93 Tex. L. Rev. (forthcoming May 2015) (reviewing the same), available at =2488724. See also Kathryn A. Watts, Rulemaking as Legislating, 103 Geo. LJ. 1003 (2015).

(16.) Terry M. Moe, Political Control and the Power of the Agent, 22 J.L. Econ. & Org. 1,3 (2006).

(17.) Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 ADMIN. L. Rev. 501,537 (2005).

(18.) The survey consisted of thirty-five main questions, with twenty-three questions containing three to thirty-three subquestions. In this Article, those questions (and the relevant subquestions) are cited to with a prefix "Q." The survey is reproduced in the Appendix.

(19.) See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside--An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901 (2013) [hereinafter Gluck & Bressman, Part I]: Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside--An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 STAN. L. Rev. 725 (2014) [hereinafter Bressman & Gluck, Part II].

(20.) Gluck & Bressman, Part I, supra note 19, at 938.

(21.) Compare Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 330 (2000) (arguing that substantive canons trump Chevron), with Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 Geo. L.J. 833, 915 (2001) (arguing that Chevron trumps constitutional avoidance), Christopher J. Walker, Avoiding Normative Canons in the Review of Administrative Interpretations of Law: A Brand X Doctrine of Constitutional Avoidance, 64 Admin. L. Rev. 139,143-44 (2012) (same), and Kenneth A. Bamberger, Normative Canons in the Review of Administrative Policymaking, 118 Yale L.J. 64, 68-69 (2008) (arguing for a middle ground that substantive canons apply as part of Chevron Step Two's reasonableness inquiry).

(22.) See, e.g., William N. Eskridge, Jr., Expanding Chevron 's Domain: A Comparative Institutional Analysis of the Relative Competence of Courts and Agencies to Interpret Statutes, 2013 Wis. L. Rev. 411, 427; Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. ECON. & Org. 81, 91-99 (1985); Kevin M. Stack, Purposivism in the Executive Branch: How Agencies Interpret Statutes, 109 Nw. U. L. Rev. (forthcoming 2015) (on file with author); Peter L. Strauss, When the Judge Is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 Chi.-Kent L. Rev. 321, 321-22 (1990); Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Mich. L. Rev. 885, 928 (2003).

(23.) The findings on the use of administrative law doctrines to shape agency interpretive behavior are further explored in Christopher J. Walker, Chevron Inside the Regulatory State: An Empirical Assessment, 83 Fordham L. Rev. 703 (2014).

(24.) See Peter M. Shane & Christopher J. Walker, Foreword: Chevron at 30: Looking Back and Looking Forward, 83 Fordham L. Rev. 475, 477-84 (2014) (reviewing literature on the Chevron Step Zero and Step One debates).

(25.) Mashaw, supra note 17, at 536-37. This study is limited to rulemaking, but agencies also conduct statutory interpretation via adjudication, decisions to initiate enforcement, informal guidance, and so forth. There may well be differences in interpretive practices depending on which process is utilized. See Kevin M. Stack, Agency Statutory Interpretation and Policymaking Form, 2009 Mich. St. L. Rev. 225, 226 (exploring how "an agency's approach to statutory interpretation is in part a function of the policymaking form through which it acts").

(26.) Bressman & Gluck, Part II, supra note 19, at 767. Indeed, nearly two in five congressional respondents (37%) volunteered this as a use of the canons, with the following representative comment: "If you know the agency will use these interpretive principles they matter absolutely because you want to know how they will be interpreted." Id. at 767-68 (internal quotation marks omitted).

(27.) At least a half-dozen agency general counsels or deputies agreed to participate in large part so that they could better train their rule drafters based on the results.

(28.) See Stack, supra note 2, at 357 ("While all agree that regulations are primary sources of law, strikingly little attention has been devoted to the method of their interpretation."). Indeed, certain questions asked in the survey address how courts should approach regulatory interpretation, including Kevin Stack's pioneering theory for interpreting regulations. Those questions (Q34(a)-(d)) will be addressed in subsequent work.

(29.) For a helpful overview on the debate between textualism and purposivism, see Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L J. 1750, 1761-68 (2010).

(30.) Gluck & Bressman, Part I, supra note 19, at 913; see also id. at 912-19 (providing an overview of faithful agency in the judicial statutory interpretation context).

(31.) Mashaw, supra note 17, at 501-02; see also id. at 502 n.2 (reviewing literature).

(32.) Id. at 504. Additional literature regarding agency interpreters' use of specific tools--such as legislative history, the substantive canons, and the administrative law doctrines--are addressed in the relevant Parts of this Article.

(33.) Id. at 537.

(34.) Ellen P. Aprill, The Interpretive Voice, 38 Loy. L.A. L. Rev. 2081, 2083 (2005) (asserting that interpretation should "consider[] not only the abilities and limitations of courts and administrative agencies, but also how both of these institutions express their conclusions; that is, the relationship between what they do and what they say they do").

(35.) Sunstein & Vermeule, supra note 22, at 928; accord Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 206 (2006); see also Richard A. Posner, Reply: The Institutional Dimension of Statutory and Constitutional Interpretation, 101 Mich. L. Rev. 952, 952-53 (2003) (agreeing that there is an institutional dimension of legal interpretation but disagreeing that this is a novel insight, as scholars and judges have long considered this institutional dimension).

(36.) Eskridge, supra note 22, at 427.

(37.) Mashaw, supra note 22, at 91-99 (arguing that delegation of policy decisions to agencies is better than delegation to courts based on comparative accountability, responsiveness, and legitimacy); David B. Spence & Frank Cross, A Public Choice Case for the Administrative State, 89 Geo. L.J. 97, 134-41 (2000) (arguing on public choice grounds that lawmaking delegation to agencies is comparatively better than such delegation to courts); Strauss, supra note 22, at 321-22 (arguing that "the use of legislative history may have an importance in the agency context for maintaining law against politics, however one regards its use at the judicial level"); Walker, supra note 21, at 159-61 (arguing for comparative agency expertise in the context of avoiding constitutional questions). In an important forthcoming article, Stack further develops a purposivist model for agency statutory interpretation. See Stack, supra note 22.

(38.) The same is true for judicial interpretation of agency regulations. In proposing a purposivist approach for interpreting regulations that relies more heavily on regulations' express statements of basis and purpose, Stack recently observed that "theorizing about how a court--or any other legal actor, for that matter--should interpret regulations has attracted only occasional notice, especially in comparison to the volume of legal work devoted to figuring out how to comply with regulations." Stack, supra note 2, at 358 (footnote omitted); see also id. at 358 n.7 (noting that "[t]he most helpful descriptive accounts are more than a generation out of date" and citing John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996), Frank C. Newman, How Courts Interpret Regulations, 35 Calif. L. Rev. 509 (1947), Lars Noah, Divining Regulatory Intent: The Place for a "Legislative History" of Agency Rules, 51 Hastings L.J. 255, 306-22 (2000), and Russell L. Weaver, Judicial Interpretation of Administrative Regulations: An Overview, 53 U. Cin. L. Rev. 681 (1984)); see also Manning, supra, at 688 n.359 ("Detailed consideration of the relative legitimacy and utility of particular approaches to [regulatory interpretation] is for another day."). Although not the central focus of this Article, the findings reported herein shed considerable empirical light on that subject as well.

(39.) Sunstein & Vermeule, supra note 22, at 919. The empirical projects Sunstein and Vermeule suggested, see id. at 917-19, do not encompass the study presented in this Article. But see William N. Eskridge, Jr., Norms, Empiricism, and Canons in Statutory Interpretation, 66 U. Chi. L. Rev. 671, 675 (1999) (noting difficulties in conducting such empirical studies); Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. Chi. L. Rev. 636, 642 (1999) ("The principal qualification to my basic thesis--that formalism must be defended empirically--comes from the fact that without normative claims of some kind, it is impossible to know what counts as a 'mistake' or an 'injustice' in interpretation...."); Adrian Vermeule, Interpretation, Empiricism, and the Closure Problem, 66 U. Chi. L. Rev. 698, 701 (1999) ("Many of the empirical questions relevant to the choice of interpretive doctrines are ... unanswerable, at least at an acceptable level of cost or within a useful period of time.").

(40.) Gluck & Bressman, Part I, supra note 19, at 905-06.

(41.) Id. at 909-10 (citing Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575 (2002)); see also id. at 916-19 (discussing empirical work in more detail).

(42.) For empirical studies at the Supreme Court level, see William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083 (2008); Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 Yale LJ. 969 (1992); Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy?: An Empirical Investigation of Chevron, 73 U. Chi. L. Rev. 823 (2006); and Connor N. Raso & William N. Eskridge, Jr., Chevron as a Canon, Not a Precedent: An Empirical Study of What Motivates Justices in Agency Deference Cases, 110 Colum. L. Rev. 1727 (2010). For similar studies at the court of appeals level, see Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 Vand. L. Rev. 1443 (2005); Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 COLUM. L. Rev. 1235 (2007); Orin S. Kerr, Shedding Light on Chevron; An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 Yale J. on Reg. 1 (1998); and Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 Duke L.J. 984. See also Richard M. Re, Should Chevron Have Two Steps?, 89 Ind. L.J. 605, 634-42 (2014) (surveying Chevron deference in the Supreme Court and courts of appeals).

(43.) Such studies on delegation tend to come more from political scientists. See, e.g., David Epstein & Sharyn O'Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making Under Separate Powers (1999); David E. Lewis, Presidents and the Politics of Agency Design: Political Insulation in the United States Government Bureaucracy, 1946-1997 (2003); McCubbins & Schwartz, supra note 7; McCubbins, Noll & Weingast, Structure and Process, supra note 7, at 468-81; Terry M. Moe, The Politics of Bureaucratic Structure, in Can the Government Govern? 267 (John E. Chubb & Paul E. Peterson eds., 1989).

(44.) For a classic example, see Jerry L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (1983). For a more recent example, see Jaya Ramji-Nogales et al., Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295 (2007).

(45.) Bressman & Gluck, Part II, supra note 19, at 765.

(46.) Id.

(47.) Id.

(48.) Id. at 767.

(49.) Mashaw, supra note 17, at 505.

(50.) Peter L. Strauss, "Deference" Is Too Confusing--Let's Call Them "Chevron Space" and "Skidmore Weight," 112 Colum. L. Rev. 1143, 1146 (2012); accord Strauss, supra note 22, at 329-31; see also Christopher J. Walker, How to Win the Deference Lottery, 91 Tex. L. Rev. See Also 73, 79 (2013), /Walker.pdf.

(51.) See Gluck, supra note 29, at 1761-68 (surveying the debate).

(52.) See sources cited supra notes 34-37.

(53.) For instance, the Bressman and Gluck study found that "[m]ore than 94% of [the congressional drafters surveyed] said that the purpose of legislative history is to shape the way that agencies interpret statutory ambiguities." Bressman & Gluck, Part II, supra note 19, at 768. The use of legislative history is discussed in more detail in Part III.

(54.) Indeed, using the findings of the Bressman and Gluck study on congressional drafting, James Brudney has succinctly demonstrated how a court's assessment of interpreter fidelity would arguably differ from Congress's. See James J. Brudney, Faithful Agency Versus Ordinary Meaning Advocacy, 57 St. Louis U. LJ. 975 (2013).

(55.) See Gluck & Bressman, Part I, supra note 19, at 919-24.

(56.) Id. at 992.

(57.) See Mashaw, supra note 17, at 522 tbl. 1 (detailing ten "Canons for Institutionally Responsible Statutory Interpretation").

(58.) A total of forty-one offices and agencies were included in the survey, with the breakdown by department and independent agency as follows (total population sent survey in parentheses):

* U.S. Department of Agriculture (USDA) (55): Office of General Counsel and eighteen USDA agencies and offices (for example, Food Safety and Inspection Service, Forest Service, and Office of Risk Assessment and Cost-Benefit Analysis);

* U.S. Department of Commerce (13): Office of General Counsel, Commerce Bureau of Industry and Security, and U.S. Patent and Trademark Office;

* U.S. Department of Energy (18): Office of General Counsel;

* U.S. Department of Homeland Security (DHS) (55): Office of General Counsel, Federal Emergency Management Agency, Transportation Security Administration, U.S. Customs and Border Protection, and U.S. Coast Guard;

* U.S. Department of Health and Human Services (146): Food and Drug Administration (FDA) and Public Health Division;

* U.S. Department of Housing and Urban Development (10): Office of General Counsel;

* U.S. Department of Transportation (81): Office of the Secretary, National Highway Traffic Safety Administration, Federal Motor Carrier Safety Administration, Federal Railroad Administration, Pipeline and Hazardous Material Safety Administration, Federal Transit Administration, Federal Aviation Administration, and Federal Highway Administration;

* Federal Communications Commission (FCC) (16): Office of General Counsel; and

* Federal Reserve (17): Legal Division. Unlike the other agencies surveyed, to reduce the workload on the Legal Division, the Federal Reserve only sent the survey to a seventeen-person subset of potential rule drafters, selected randomly by the point of contact from the population agency officials engaged in rule drafting on a regular basis.

(59.) Question 1 confirmed and clarified the survey population by asking whether the respondent is "currently working, or ha[s] worked within the last two years, in a general counsel office, legal department, or other rulemaking office in a federal agency AND had experience in statutory interpretation and rulemaking in that employment." Of the 128 individuals who responded, only one answered this question in the negative and thus did not respond to the rest of the survey beyond the background questions.

(60.) Once the rule-drafter populations were defined at each agency, the point person at the agency e-mailed the population a link to the online survey with a short description of the empirical project, encouraging but not requiring a response. The agency point persons then followed up roughly two weeks later with another invitation via e-mail, and a final reminder about two weeks after that.

(61.) See generally Floyd J. Fowler, Jr., SURVEY RESEARCH METHODS 9-11 (5th ed. 2014) (summarizing the broad scope of biases that need to be considered by describing two types of errors that can be made in conducting a survey: (1) errors in generalizing from the set of individuals who completed the survey to the population of interest and (2) mismatch between the information reported by the survey and the actual reality being measured). One could imagine a strong selection bias at the agency participation level. For instance, perhaps agencies whose rules are challenged more in court--and thus whose rule drafters may be more familiar with these interpretive tools--would be less likely to agree to participate in the survey. The Environmental Protection Agency (EPA) and the Securities and Exchange Commission, for example, declined to participate. The EPA actually agreed to participate but did not want to burden its entire rule-drafting staff with the survey, and so suggested surveying a handpicked subset--an offer refused so as to not undercut the methodology. On the other hand, many litigation-heavy agencies (for example, DHS, the FCC, and the FDA) did participate. Moreover, a number of the agencies agreed to participate based on a level of trust they had with the author. Once a few agreed to participate, more agencies where the author's personal connections were weaker or nonexistent were willing. Many of the agencies--including most of the independent agencies--that declined to participate indicated they did not want to burden their rule drafters with a survey, especially as the survey was being administered during the government-wide hiring freeze (and then furlough).

(62.) Because many questions build on prior questions and in light of concerns about incomplete surveys, the thirty-five main questions were asked in a fixed order; subquestions were randomized within each main question to minimize response-order effects. See, e.g., Jon A. Krosnick & Duane F. Alwin, An Evaluation of a Cognitive Theory of Response-Order Effects in Survey Measurement, 51 Pub. Op. Q. 201 (1987); William S. Sekely & Vicki L. Blakney, The Effect of Response Position on Trade Magazine Readership and Usage, J. Adver. Res., Nov ./Dec. 1994, at 53. There are methodological costs to not fully randomizing the survey in that the order may affect the answers, though such effects are typically more an issue with attitudinal studies (which this is not). See generally Howard Schuman & Stanley Presser, Questions and Answers in Attitude Surveys: Experiments on Question Form, Wording, and Context (1981). Moreover, Bressman and Gluck found no response-order effects when they scrambled the questions in their related congressional drafting survey. See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside: Methods Appendix, STAN. L. Rev. 12 & n.45 (May 2013), http://www.Stanford [hereinafter Methods Appendix], To help the reader account for any response-order effects, the Article references the question number being discussed, with the full survey reproduced in the Appendix.

(63.) With the exception of the FDA, the federal agencies insisted not only that the survey be anonymous but also that a critical mass of other agencies participate. Attempts were made to conduct smaller case studies on particular agencies, but agencies resisted that idea.

(64.) The anonymous nature of the survey limits the ability to calculate a response rate by agency or department. However, because the survey was rolled out at different times at different agencies, the data collected confirm that at least some individuals in all of the population pools responded (as opposed to being predominated by one department or independent agency). That said, there is no way to assess with precision whether the response rate differs across the agencies contacted. As a result, it is possible that nonresponse bias is strong within a single agency due to cultural or other factors. Moreover, the FDA requested that its rule drafters have the option to indicate that they work at the FDA, so the first question was modified to allow for the respondents to voluntarily so indicate. Of the 128 responses, twenty indicated that they worked at the FDA. The survey was sent to seventy FDA rule drafters, so assuming all FDA respondents self-identified, the FDA response rate was 27%, which is in line with the overall 31% response rate.

(65.) The answers from respondents who did not fully complete the survey are included in the findings. A sizeable number of respondents (thirty) provided only partial responses. This rate might indicate that the survey was intimidating to individuals who did not possess a strong grasp of the concepts being discussed, resulting in undersampling of less knowledgeable individuals at the agencies. Another plausible explanation is that some respondents tired of the 195-question survey, as there does not appear to be any pattern about when respondents stopped answering questions. Because the main thirty-five questions were not randomized (though the subquestions were), see supra note 62, the undersampling can be taken into account and the total number of respondents "(n=_)" will be included for each question.

(66.) These, of course, are not the only methodological limitations. For instance, there is always the possibility of social desirability bias, in that respondents might feel they should indicate greater familiarity with the interpretive tools (and greater use of them) than they actually possess (and do), since they might view it as the most appropriate way to conduct their jobs. The tendency to modify answers in this way arises from two sources, termed "self-deception" and "other-deception." See Harold A. Sackeim & Ruben C. Gur, Self-Deception, Self-Confrontation, and Consciousness, in 2 Consciousness and Self-regulation: Advances in Research and Theory 139,142-50 (Gary E. Schwartz & David Shapiro eds., 1978). Attempts were made to minimize social desirability bias. As for other-deception, the survey was completely anonymous and taken online outside the presence of an interviewer; as for self-deception, the survey was designed to ask about the same interpretive tools in different ways, by name and by principle. See Anton J. Nederhof, Methods of Coping with Social Desirability Bias: A Review, 15 EUR. J. Soc. PSYCHOL. 263 (1985). As discussed in notes 61-65 above, there may also be issues with selection bias, incomplete surveys, nonrandomization of main questions order, and other biases that the study has attempted to minimize but nonetheless cannot be completely controlled or measured through the methodology utilized.

(67.) See Gluck & Bressman, Part I, supra note 19, at 923 ("Out of an abundance of caution, moreover, we have chosen to report our findings in a descriptive manner mostly using only the raw data rather than engaging in more sophisticated hypothesis testing to explore whether there were statistically significant drivers of certain answers.").

(68.) Q2 (n=128).

(69.) Q7 (n=126).

(70.) Q3 (n= 128).

(71.) Q4 (n=128). Another five respondents indicated "other," explaining among other things that it depends on how "rule" is defined. See, e.g., id. cmt. 9.

(72.) Id. cmts. 3, 10, 11.

(73.) Q5 (n=126). The survey also asked what year the respondent graduated from law school (Q6), and such results are consistent with the age ranges.

(74.) Q7.

(75.) Q8 (n=126).

(76.) Q35 (n=98). Because asking whether someone is a textualist or purposivist could affect how respondents would answer other questions regarding their understanding and use of a variety of semantic and substantive canons and legislative history, this question was intentionally included as the last question in the survey.

(77.) Id. cmt. 7.

(78.) Id. cmt. 12.

(79.) Q9(a)-(h) (n=119); Q17(a)-(d) (n=109); Q24(a)-(f) (n=99); Gluck & Bressman, Part I, supra note 19, at 927 fig.1, 946, 948. With respect to some findings in the Bressman and Gluck study, the exact percentages of congressional respondents were not reported. In those circumstances, Bressman and Gluck graciously provided the author with those percentages. Thanks are owed to their research assistant Adriana Robertson for confirming those numbers from the Bressman and Gluck data for the purposes of this Article. Two of these interpretive rules--the ordinary meaning canon and the Seminole Rock/Auer deference doctrine--were not included in the Bressman and Gluck study.

(80.) See supra Part I.B (describing differences in methodologies).

(81.) See Gluck & Bressman, Part I, supra note 19, at 920, 921 & tbl.1.

(82.) Q10(a)(n=119); Q13(a)-(d)(n=117); Q14(a)-(e) (n=114); Q18(a)-(b), (d)(n=109); Q19(a)-(b) (n=92); Q25(b)-(f)(n=99); Q31(n=98). For readability, the following interpretive principles are not included in Figure 2: Rule of Lenity (13%), and Curtiss-Wright deference (2%). Q18(e)(n=109); Q25(a)(n=99).

(83.) For canons reported by concept, use is calculated by including those who responded that those concepts were always or often true. See Q13(a)-(d)(n=117); Q14(a)-(e) (n=114). The Mead doctrine is calculated by concept by taking the lower percentage reported of the two conditions. Q19(a)-(b)(n=92).

(84.) John F. Manning & Matthew C. Stephenson, Legislation and Regulation: Cases and Materials 202 (2d ed. 2013); accord Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 51 (2012) ("Most of the canons of interpretation ... are so venerable that many of them continue to bear their Latin names. Properly regarded, they are not 'rules' of interpretation in any strict sense but presumptions about what an intelligently produced text conveys.").

(85.) Scalia & Garner, supra note 84, at 61.

(86.) See, e.g., James J. Brudney, Canon Shortfalls and the Virtues of Political Branch Interpretive Assets, 98 Calif. L. Rev. 1199, 1203 (2010); James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 VAND. L. Rev. 1, 12 (2005).

(87.) See, e.g., John F. Manning, Continuity and the Legislative Design, 79 Notre Dame L. Rev. 1863, 1864-65 (2004); John Copeland Nagle, Waiving Sovereign Immunity in an Age of Clear Statement Rules, 1995 Wis. L. Rev. 771, 801-02.

(88.) Gluck & Bressman, Part I, supra note 19, at 925 (citing Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 29 (Amy Gutmann ed., 1997)).

(89.) Id. Other justifications "are less tethered to congressional practice." Id.

(90.) Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. Rev. 527, 544 (1947); accord Joel Prentiss Bishop, Commentaries on the Written Laws and Their Interpretation [section] 2, at 3 (Boston, Little, Brown & Co. 1882) ("[O]n the whole, the rules of statutory interpretation are specially stable.").

(91.) Abner J. Mikva, Reading and Writing Statutes, 48 U. Pitt. L. Rev. 627, 629 (1987); accord James J. Brudney, Recalibrating Federal Judicial Independence, 64 Ohio St. L.J. 149, 179, 180 & n.113 (2003) (questioning congressional awareness of canons).

(92.) Scalia & Garner, supra note 84.

(93.) See Gluck & Bressman, Part I, supra note 19, at 912, 913 & n.16 (chronicling the debate); see also Josh Blackman, Archive of Articles Discussing Posner-Scalia Disagreement, Josh Blackman's Blog, -scalia (last visited Apr. 28, 2015).

(94.) Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401 (1950). See generally Manning & Stephenson, supra note 84, at 205-07 (discussing the impact of Llewellyn's criticism of the canons and subsequent scholarship).

(95.) Scalia & Garner, supra note 84, at 59 (bolding omitted).

(96.) Manning & Stephenson, supra note 84, at 202.

(97.) Scalia, supra note 88, at 26.

(98.) Richard A. Posner, Statutory Interpretation--in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 806, 816 (1983); see also Cont'l Cas. Co. v. Pittsburgh Coming Corp., 917 F.2d 297, 300 (7th Cir. 1990) (calling the canons "figleaves for decisions reached on other grounds").

(99.) Gluck & Bressman, Part I, supra note 19, at 930.

(100.) Q9(b)-(e), (g)-(h)(n=119); Q10(b)-(e), (g)-(h)(n=119); Q13(a)-(d)(n=117); Q14(a)-(d)(n=114). These definitions are taken verbatim from Gluck & Bressman, Part I, supra note 19, at 930.

(101.) Q9(f)(n=119); Q10(f)(n=119); Q14(a)-(d).

(102.) Q14(e)(n=114).

(103.) Q9(a)(n=119); Q10(a)(n=119); see also Scalia & Garner, supra note 84, at 69 (defining the "Ordinary-Meaning Canon" as dictating that "[w]ords are to be understood in their ordinary, everyday meanings--unless the context indicates that they bear a technical sense" (bolding omitted)).

(104.) Q14(f)(n=114) ("Dictionaries should be used by interpreters in determining the meaning of terms used in statutes (or rules).").

(105.) Q9(a)-(h)(n=119); Q14(e)(n=114); Gluck & Bressman, Part I, supra note 19, at 927 fig.1, 931 fig.3.

(106.) Q10(a)-(h)(n=119); Q13(a)-(d)(n=117); Q14(a)-(e)(n=114). The use of canons by concept reports the percentage of drafters who answered that those concepts are "always" or "often" used in drafting. The ordinary meaning canon was not asked by concept, and the use of dictionaries was not asked by name but was asked in two different formulations. Moreover, if the respondent indicated in Question 9 that she did not know the canon by name, any response in Question 10 for that same canon was excluded.

(107.) As discussed in Part I.D, this comparison between the agency and congressional respondents should be made carefully not only because of the methodological limitations in both studies but also because the two drafting populations differ in substantial respects. Similar to the Bressman and Gluck study, this survey also asked whether "it matter[s] to your rule drafting practices whether courts routinely rely on any of these rules," Q12 (n=119), and, by semantic canon, whether the rule drafter "believe[s] that courts rely on any of these rules in interpreting legislation and/or regulations," Q11(a)-(h)(n=119). As to the former, nearly four in five (78%) indicated that it did matter. As for the latter, the results roughly correspond with the results for awareness and use of the canons by name. While both sets of questions yielded a few interesting comments quoted elsewhere in the Article, with hindsight. Question 11 in particular was probably not worth asking.

(108.) See, e.g., Gluck & Bressman, Part I, supra note 19, at 1016 tbl.3 (developing a typology of canon awareness and use).

(109.) Id. at 930.

(110.) Scalia & Garner, supra note 84, at 7, 8 & n.17 (citation omitted). By comparison, 47% of rule drafters responded that they knew ejusdem generis by name. Q9(c).

(111.) Q9, cmt. 1.

(112.) Id. cmt. 12.

(113.) It is thus no surprise that Bressman and Gluck similarly focused on two of these three categories--concepts in use and canons known by name but rejected in practice-though these canons do not perfectly align in both studies. See Gluck & Bressman, Part I, supra note 19, at 932-39.

(114.) Q14(a) (n=114).

(115.) Q14(b) (n=114). No one responded that it never applies; only one responded that it rarely applies.

(116.) Scalia & Garner, supra note 84, at 170.

(117.) See Gluck & Bressman, Part I, supra note 19, at 937 ("In the October 2011 Term of the Supreme Court alone, the whole act rule was used in at least three cases, and the leading case for the principle has been cited in at least 118 federal cases since 1995." (footnote omitted)).

(118.) Q13(a), (d) (n=117). These percentages include where the rule drafters indicated that the assumptions were often or always true. Only one indicated never and none rarely for noscitur a sociis; and only three indicated never and three rarely for ejusdem generis.

(119.) Q9(b)-(c) (n=119).

(120.) Indeed, when the author teaches these canons in his first-year legislation course, he includes the Latin names but also refers to noscitur a sociis as the associated words canon and ejusdem generis as the residual clause canon. Compare Scalia & Garner, supra note 84, at 195 (naming noscitur a sociis the "Associated-Words Canon" (bolding omitted)), with id. at 199 (providing no English name for the "Ejusdem Generis Canon" (bolding omitted)).

(121.) Q10(b)-(c) (n= 119); Q13(a), (d).

(122.) Gluck & Bressman, Part I, supra note 19, at 933.

(123.) Q13(b)-(c) (n=117).

(124.) Q9(d)-(e) (n=119).

(125.) Q10(d)-(e) (n=119).

(126.) Q13(b)-(c).

(127.) Gluck & Bressman, Part /, supra note 19, at 932 & fig.4, 933-36.

(128.) Id. at 934.

(129.) Q13(c).

(130.) Gluck & Bressman, Part /, supra note 19, at 934-35 (footnote omitted).

(131.) Q14(a)-(b) (n=114).

(132.) Q14(c) (n=114).

(133.) Q14(d) (n=114).

(134.) Q9(f)-(g) (n=119).

(135.) Q11, cmt. 1; accord id. cmt. 4 ("All are applied by at least some courts and judges, but the whole code rule seems to be applied less frequently than the others.").

(136.) Q14, cmt. 4; see also Q15, cmt. 9 ("Congress is producing some pretty terrible stuff to work with.").

(137.) Q14, cmt. 7 ("[W]e try to be consistent in drafting regulations, but it surely is clear congress is not in drafting the statutes."); id. cmt. 13 ("It's not accurate to make the same statement with regard to statutes and agency rules. Agencies are more precise and consistent with drafting their regulations than Congress is with statutes.").

(138.) Gluck & Bressman, Part 1, supra note 19, at 933-34.

(139.) Id. at 936.

(140.) Scalia & Garner, supra note 84, at 69 (bolding omitted).

(141.) Q9(a) (n=119); Q10(a) (n=119).

(142.) Scalia & Garner, supra note 84, at 69.

(143.) See, e.g., 1 James Kent, Commentaries ON American Law 432 (New York, O. Halsted 1826) ("The words of a statute are to be taken in their natural and ordinary signification and import; and if technical words are used, they are to be taken in a technical sense."); 1 Joseph Story, Commentaries on the Constitution of the United States 157 (Boston, Hilliard, Gray & Co. 1833) ("[E]very word employed in the constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it.").

(144.) Q14(d)-(e) (n=114).

(145.) William N. Eskridge, Jr. et al., Legislation and Statutory Interpretation 252 (2000); accord Manning & Stephenson, supra note 84, at 115 (citing Samuel A. Thumma & Jeffery L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries, 47 Buff. L. Rev. 227, 252-60 (1999)); James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 516-39 (2013) (presenting empirical findings on dictionary use on the Rehnquist and Roberts Courts). Indeed, Reading Law includes a ten-page appendix on the proper use of dictionaries to derive ordinary meaning. Scalia & Garner, supra note 84, at 415-24.

(146.) Gluck & Bressman, Part I, supra note 19, at 938.

(147.) Id. (internal quotation marks omitted). Added another: "This question presumes that legislative staff have dictionaries. I have tried to get an OED but people over at finance say we aren't spending money to buy you a dictionary. And no Black's Law Dictionary either." Id. (internal quotation marks omitted).

(148.) Q14(f) (n=114).

(149.) Id. cmt. 3.

(150.) Q14(e)-(f) (n=114).

(151.) Christopher Walker, Does Congress Really Mean to Delegate Interpretative Authority to Agencies?, Jotwell (Aug. 16, 2013), -really-mean-to-delegate-interpretatiYe-authority-to-agencies.

(152.) Manning & Stephenson, supra note 84, at 247.

(153.) Henry m. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1376 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).

(154.) Henry J. Friendly, Benchmarks 210 (1967).

(155.) FCC v. Fox Television Stations, Inc., 556 U.S. 502, 566 (2009) (Breyer, J" dissenting).

(156.) See Gluck & Bressman, Part I, supra note 19, at 940; see also William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 598-629 (1992) (chronicling substantive canons).

(157.) Q24(a)-(f) (n=99); Q25(a)-(f) (n=99). While the semantic and substantive canons are discussed together in Part II of this Article, they were the second and fourth parts of the survey, with the administrative law doctrines in between. This was a strategic decision made due to the length of the online survey, the concern for incomplete answers, and a priority for answers about the administrative law doctrines over the substantive canons. In light of the responses regarding the substantive canons, this seems like a sound decision. With hindsight, however, the final part of the survey on legislative history should have been moved before the part on the substantive canons (and perhaps before the administrative law questions)--although the number of responses only dropped by one between those final two parts.

Moreover, similar to the Bressman and Gluck study, this survey also asked whether "it matter[s] to your rule drafting practices whether courts routinely rely on any of these rules," Q27 (n=98), and, by substantive canon, whether the rule drafter "believefs] that courts rely on any of these rules in interpreting legislation," Q26(a)-(g) (n=98). As to the former, 54% of the rule drafters surveyed indicated that it did matter. As for the latter, the results roughly correspond with the results for awareness of the substantive canons by name. With hindsight, Q26 was probably not worth asking.

(158.) Q24(c)-(d) (n=99); see also Eskridge et al., supra note 145, at 354-55 (classifying the presumptions against preemption and against the waiver of state sovereign immunity as federalism canons); accord Manning & Stephenson, supra note 84, at 267-68.

(159.) Q24(b) (n=99).

(160.) Q24(a), (e)-(f) (n=99).

(161.) Q25(b)-(d) (n=99).

(162.) Gluck & Bressman, Part I, supra note 19, at 941 fig.5, 948. On the rule of lenity, comparisons between the drafter populations would be unproductive as Bressman and Gluck only asked congressional drafters who participated in drafting criminal legislation, whereas this study asked all agency rule drafters. Moreover, based on the federal agencies in the survey population, see supra note 58, it is unlikely that many of the rule drafters surveyed have had any on-the-job experience interpreting criminal statutes.

(163.) Gluck & Bressman, Parti, supra note 19, at 942.

(164.) See id. at 945-46.

(165.) Mashaw, supra note 17, at 508; see also Walker, supra note 21, at 140 (arguing that modern constitutional avoidance should play no role when reviewing an agency's interpretation of a statute it administers). But see Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189, 1196 (2006) (arguing for a more nuanced use of constitutional avoidance in the executive branch, including that "it should be inapplicable in cases where the executive interpreter's knowledge of congressional intent and statutory purpose removes the statute's ambiguity").

(166.) Gluck & Bressman, Parti, supra note 19, at 924-25.

(167.) Id. at 965.

(168.) Strauss, supra note 22, at 329.

(169.) Id.

(170.) Id. at 347.

(171.) Mashaw, supra note 17, at 511 (discussing Strauss, supra note 22).

(172.) See, e.g., Aprill, supra note 34, at 2085-87 (describing agencies interpretive voice[]" in comparative expertise terms); Eskridge, supra note 22, at 424 (arguing for more purposivist agency statutory interpretation because, inter alia, "the administrators are probably more knowledgeable about the ongoing legislative history of the statute than judges are"); see also Sunstein & Vermeule, supra note 22, at 928 (arguing that agencies can be more purposivist "mostly because agencies have a superior degree of technical competence but also because "agencies are subject to a degree of democratic supervision).

(173.) Bressman & Gluck, Part II, supra note 19, at 768.

(174.) Gluck & Bressman, Part I, supra note 19, at 972.

(175.) Bressman & Gluck, Part II, supra note 19, at 768.

(176.) Of course, whether the rule drafters understood these distinctions when responding to the survey is a separate matter; no definition was provided in the survey instrument itself

(177.) Q29(a)-(d) (n=98).

(178.) Q29(a),(c)(n=98).

(179.) Q29(b),(d) (n-98).

(180.) Id. cmt. 5.

(181.) Q29(e)-(f) (n=98).

(182.) Q29(e).

(183.) Q29(f).

(184.) Id. cmt. 2.

(185.) Id. cmt. 4.

(186.) Id. cmt. 3.

(187.) Q31 (n=98).

(188.) See supra Figure 2. Moreover, if the "other" answers (which appear to have meant either "sometimes" or "it depends") are included, the reported use of legislative history would rise to 89%, putting its use on par with Chevron, the whole act rule, and the ordinary meaning canon. See Q31. In hindsight, this question would have been more effective if there were not an option to select "other" instead of yes/no; or better yet, perhaps it should have been styled like the by-concept questions in the semantic canons section, see Q13(a)-(d) (n=117); Q14(a)-(f) (n=114), which provided the concept as a statement and then asked how often (never, rarely, sometimes, often, or always) it was true. Note that for these canons reported by concept, use is calculated by including those who responded that those concepts were always or often true, excluding those who responded that they are sometimes true. For this reason, the 76% number for legislative history use is used for comparison purposes.

(189.) Q 14(f).

(190.) Gluck & Bressman, Parti, supra note 19, at 975.

(191.) Q31. Question 33, which asked about the reliability of various characteristics of legislative history, also garnered twenty-one comments, constituting 21% of respondents. Q33 (n=98). Although Question 8 received a greater number of comments at twenty-five, see Q8 (n=126), it had a lower comments-to-respondents percentage (20%).

(192.) Q31,cmt. 21.

(193.) Id. cmt. 19.

(194.) Id. cmt. 9; cf. Conroy v. Aniskoff, 507 U.S. 511,519 (1993) (Scalia, J" concurring in the judgment) ("The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators. As the Court said in 1844: 'The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself...'" (alteration in original) (quoting Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1844))).

(195.) Q32, cmt. 1.

(196.) Q31, cmt. 20.

(197.) Id. cmt. 15; accord Q30, cmt. 8 ("The value of legislative history has diminished as the committee reports have tended to merely parrot the statutory text.").

(198.) Q31, cmt. 13.

(199.) Gluck & Bressman, Part 7, supra note 19, at 970.

(200.) Q30(a)-(i) (n=98); Gluck & Bressman, Part 7, supra note 19, at 971 fig.7.

(201.) Q30(a)-(b) (n=98); Gluck & Bressman, Part 7, supra note 19, at 971 fig.7.

(202.) Q30(e) (n=98); Gluck & Bressman, Part 7, supra note 19, at 972. This difference in views on the importance of the "political deal" appears again when both groups were asked about whether the reliability of a type of legislative history is affected by whether that statement/report was essential to the political deal that resulted in enacting the statute. Six in ten congressional respondents (61%) reported that it did affect reliability, whereas only three in ten agency rule drafters (32%) agreed. Gluck & Bressman, Part I, supra note 19, at 983 fig.9; Q33(f) (n-98).

(203.) Q30(c), (h) (n=98); Gluck & Bressman, Parti, supra note 19, at 971 fig.7.

(204.) Q30(f) (n=98).

(205.) Gluck & Bressman, Part I, supra note 19, at 972.

(206.) Q31, cmt. 17.

(207.) Gluck & Bressman, Part I, supra note 19, at 971 fig.7; Q30(d) (n=98).

(208.) Q15, cmt. 1; accord id. cmt. 6 ("I don't think Congress generally intends to create ambiguities or gaps...."); id. cmt. 17 ("Maybe I'm cynical, but I don't always think congressional drafters 'intend' these gaps. Often, they're just things they haven't thought about.").

(209.) Q31, cmt. 1.

(210.) Victoria F. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 YaleL.J.70, 72-73 (2012).

(211.) Compare Q32(a) (n=92), Q32(b) (n=92), Q32(c) (n=87), Q32(d) (n=92), Q32(e) (n=95), Q32(f) (n=91), Q32(g) (n=92), Q32(h) (n=92), and Q33(a)-(f) (n=98), with Gluck & Bressman, Part I, supra note 19, at 977 fig.8, 983 fig.9. The rule drafters were asked to assess the reliability of two additional sources: presidential signing statements and floor statements made by the sponsor(s) of the statute. Q32(d); Q32(i) (n=86). Moreover, it should be noted that four of the ten comments made on Question 32 questioned the use of the term "reliable," suggesting "useful" or "helpful" would have been a better term to use. See Q32, cmts. 4, 7, 9-10.

(212.) Q32(a) (n=92); Q32(b) (n=92); Q32(c) (n=87); Q32(d) (n=92); Q32(e) (n=95); Q32(f) (n=91); Q32(g) (n=92); Q32(h) (n=92); Q32(i) (n=86). Because these questions are about the reliability of certain types of legislative history, the number of respondents considered for each of these questions and the percentage calculations for Figure 8 exclude those respondents who indicated that they did not know the level of reliability.

(213.) See Gluck & Bressman, Part I, supra note 19, at 977 fig.8; see also Manning & Stephenson, supra note 84, at 152 ("The conventional wisdom has been that the most reliable form of legislative history consists of the reports prepared by the House and Senate committees, which accompany bills favorably reported to the chamber, and the conference committee reports which accompany the reconciled version of the House and Senate bills.").

(214.) Gluck & Bressman, Part I, supra note 19, at 977 fig.8; Q32(c) (n=87); Q32(e) (n=95); Q32(f) (n=91); Q32(g) (n=92); Q32(h) (n=92).

(215.) See Gluck & Bressman, Part I, supra note 19, at 976-78.

(216.) Q32, cmt. 8; accord id. cmt. 6 ("The most important documents are the bill and the report accompanying it because that is what Congress votes on. Floor statements should not be given as much weight. I review all of it, but place the greatest weight on the documents that are actually used for the vote."); Q33, cmt. 13 (stating that "unless it's a report, I wouldn't be likely to consider using it").

(217.) Nourse, supra note 210, at 118-27 (capitalization altered).

(218.) Gluck & Bressman, Part I, supra note 19, at 979.

(219.) Q32(d) (n=92); Q32(e) (n=95); Q32(f) (n=91); Q32(g) (n=92); Q32(h) (n=92); Q32(i) (n=86).

(220.) See supra note 9 and accompanying text.

(221.) Q32, cmt. 5; see also id. cmt. 4 (stating that these types of history "are not authoritative, in my opinion, other than the conference report & Presidential] signing statement").

(222.) See, e.g., Peter M. Shane, Chevron Deference, the Rule of Law, and Presidential Influence in the Administrative State, 83 Fordham L. Rev. 679 (2014) (exploring whether presidential involvement in agency statutory interpretation should affect the level of deference a reviewing court owes to that interpretation); see also Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2376 (2001) ("Chevron's primary rationale suggests a[n] ... approach [that] would link deference in some way to presidential involvement.").

(223.) Q33(a)-(f) (n=98); Gluck & Bressman, Part I, supra note 19, at 983 fig.9. Of the 98 rule drafters who responded to this question, 24 indicated they did not know. Q33(g) (n=98). Because the question asks whether any of these factors "matter to [the rule drafter's] assessment" of reliability of the legislative history, a response that the rule drafter does not know for all practical purposes means that those factors do not matter to the drafter's assessment. Those responses are thus included in the percentage calculations for Figure 9.

(224.) Q33(g) (n=98).

(225.) Q32(c) (n=87); Q32(i) (n=86).

(226.) See Nourse, supra note 210, at 98-117; see, e.g., Q33, cmt. 16 ("Statements after the legislation is passed should not be given any weight. That is just one member's view. Statements that are made significantly before legislation is passed should be given [little] weight because legislation and views may change quickly over time.").

(227.) Q33(c)-(d) (n=98).

(228.) Gluck & Bressman, Part I, supra note 19, at 984-85. The congressional drafters ranked timing--closeness in time (before or after passage), and whether the statement was made after the legislation passed--as the most important and third most important factors, respectively. See id. at 983 fig.9.

(229.) Q33(a)-(b) (n--98); Gluck & Bressman, Part I, supra note 19, at 983 fig.9.

(230.) Q20, cmt. 5.

(231.) See Al Daniel, The Role of DOJ's Appellate Staffs in the Supreme Court and in the Courts of Appeals. SCOTUSblog (Dec. 12, 2012, 11:03 AM), /2012/12/the-role-of-dojs-appellate-staffs-in-the-supreme-court-and-in-the-courts-of-appeals.

(232.) One note of caution: During the survey design phase, a predominant theme in interviews with higher-level agency counsels was that agency general counsel offices vary substantially in structure, practices, norms, and culture. Anyone who has worked at or studied federal agencies quickly realizes this. Yet little attention has been paid to these differences--an important exception being a terrific sourcebook published by the ACUS, which explores the differences among federal agencies in general. See David E. Lewis & Jennifer L. Selin, Sourcebook of United States Executive Agencies (1st ed. 2012), available at Indeed, an empirical project focused just on mapping out those organizational and cultural differences within agency general counsel's offices would be a meaningful contribution to the literature. In all events, such diversity poses methodological challenges for generalizing findings across the administrative state, but it also presents opportunities for drawing out best practices from these various laboratories of bureaucracy.

(233.) See Q15-Q23, Q28. The Bressman and Gluck study, by contrast, included 45 questions on administrative law. Gluck & Bressman, Part 7, supra note 19, at 992.

(234.) A number of the survey questions on administrative law explored the rule drafters' views on how judicial behavior affects agency rule drafting as well as which interpretive tools should apply at the various stages in the Chevron deference framework. Those findings will not be presented in this Article. In total, the administrative law questions not discussed (Q20-Q21; Q28) encompass 58 of the 97 questions on administrative law, though some of the comments to those questions are incorporated. Seven of those questions (Q20(a)-(g)) are the central focus of Walker, supra note 23, while the findings from the others (Q21; Q28) will be explored in subsequent work.

(235.) Bressman & Gluck, Part II, supra note 19, at 767.

(236.) Id. at 165.

(237.) Id.

(238.) The author has explored elsewhere these separation of powers values with respect to the role of federal agencies as primary interpreters and implementers, and those points will only briefly be discussed here. See Stephanie Hoffer & Christopher J. Walker, The Death of Tax Court Exceptionalism, 99 Minn. L. Rev 221, 271-73 (2014); Walker, supra note 21, at 173-82; Christopher J. Walker, The Ordinary Remand Rule and the Judicial Toolbox for Agency Dialogue, 82 GEO. Wash. L. Rev. 1553, 1561-78 (2014), Walker, supra note 50, at 78.

(239.) Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740-41 (1996).

(240.) Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 843 n 11 (1984).

(241.) Nat'1 Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005) (Only a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction."); see also Walker, supra note 21, at 170-71.

(242.) Brand X, 545 U.S. at 983.

(243.) Negusie v. Holder, 555 U.S. 511, 523 (2009). See generally Walker, supra note 238, at 1561-78 (tracing the evolution of the ordinary remand rule).

(244.) Negusie, 555 U.S. at 523 (quoting Brand X, 545 U.S. at 980).

(245.) 133 S. Ct. 1863, 1866, 1874-75 (2013).

(246.) Id. at 1868 (citation omitted).

(247.) Q16(b) (n=107).

(248.) Id. Because Question 16 asks about the rule drafters' agreement with particular statements, those who indicated they did not know, as well as those who marked other, are not included in the number of respondents or the percentage calculations. Moreover, this question was not included in the Bressman and Gluck study. Instead, they used the following deference-related statement: "The principles related to how much deference courts will accord federal agency decisions allow congressional drafters to leave statutory terms ambiguous because the agency can later specify those terms." Methods Appendix, supra note 62, at 27. This survey similarly asked that question, but the rule drafters did not agree as strongly with this statement as with Question 16(b): 17% strongly agreed, 42% agreed, 29% somewhat agreed, 10% disagreed, and 2% strongly disagreed. Q16(a) (n=103). This study focuses on Question 16(b) instead of Question 16(a) because the statement presented in Question 16(b) better reflects the Chevron doctrine.

(249.) Q16, cmt. 3. Moreover, one respondent remarked that "[t]he answers to these questions vary circuit by circuit." Id. cmt. 9. And another noted, "It depends on how reasonable the agency's interpretation was. Just because a statute is ambiguous doesn't mean an agency can pick the nuttiest interpretation out there." Id. cmt. 10.

(250.) Q16(c) (n=102).

(251.) Id. One rule drafter commented that whether an agency may choose a different construction "depends on the circumstances. A court's interpretation could make it difficult to have a different interpretation." Id. cmt. 2.

(252.) Q12 (n=119).

(253.) Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs 545 U.S. 967 1016-17 (2005) (Scalia. J., dissenting).

(254.) The rule drafters were also asked about whether they were familiar by name with Brand A, the ordinary remand rule, and a third government litigation concept (governmental intercircuit nonacquiescence) and whether those principles played a role in their rule drafting. A short description was included along with the name of the case/principle. See Q22Q23. With respect to Brand X, 43% of rule drafters indicated that they were familiar with the principle and 29% indicated that it played a role in drafting. Q22(a) (n=99); Q23(a) (n=99) The findings were similar for the ordinary remand rule-45% familiar, 21% used in drafting--and for governmental intercircuit nonacquiescence--57% familiar, 25% used. Q22(b) findings were respect to these questions are explored more fully in Walker, supra note 19, at 726, 727 & fig. 4, 728.

(255.) See Gluck & Bressman, Parti, supra note 19, at 1003-04, 1005 & fig. 11, 1006.

(256.) Bressman & Gluck, Part II, supra note 19, at 765. See generally Lisa Schultz Bressman, Reclaiming the Legal Fiction of Congressional Delegation, 97 Va, L. Rev. 2009, 2025-34 (2011) (reviewing literature and showing consensus that the primary justification for Chevron is a legal fiction and not that Congress intends to delegate lawmaking authority each and every time there is an ambiguity in a statute an agency administers).

(257.) Q15(a)-(j) (n=111); Gluck & Bressman, Part I, supra note 19, at 1005 fig.11. Two respondents indicated that they did not know, so the number of respondents considered and the percentage calculations in Figure 10 do not include those responses. Another rule drafter indicated none of the above, so that response is included.

(258.) Tom Merrill and Kristin Hickman coined this term shortly after the Court's decision in United States v. Mead Corp., 533 U.S. 218 (2001). Merrill & Hickman, supra note 21, at 836-37; see also Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 207-11 (2006). See generally Shane & Walker, supra note 24, at 477-84 (reviewing literature on the Chevron Step Zero debate).

(259.) Q15(a) (n=111); Gluck & Bressman, Part 1, supra note 19, at 1004. 1005 fig.11.

(260.) Q15(k). Of the eighteen comments, five expressed concern that the question could not be answered in a general matter but rather depended on the particular statute. See Q15, cmts. 3-4, 6, 11, 13. Another criticized the question because it "indulges the unsupportable fiction that congressional drafters have a unified approach on these things. They don't." Id. cmt. 5.

(261.) Q15(h)-(j); Gluck & Bressman, Part I, supra note 19, at 1004, 1005 fig.11.

(262.) See Evan J. Criddle, Chevron's Consensus, 88 B.U. L. Rev. 1271, 1275 (2008) (noting that core justifications for Chevron deference include "(1) congressionally delegated authority, (2) agency expertise, (3) political responsiveness and accountability, (4) deliberative rationality, and (5) national uniformity").

(263.) Gluck & Bressman, Part I, supra note 19, at 1003.

(264.) Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001). There is a robust scholarly discussion on this doctrine that need not be repeated here. See, e.g., Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 19 (2010) (reviewing literature and providing a summary of doctrinal development).

(265.) Q15(b)-(d) (n=111); Gluck & Bressman, Part I, supra note 19, at 1003.

(266.) Q15, cmt. 7.

(267.) Gluck & Bressman, Part I, supra note 19, at 1004 (internal quotation marks omitted).

(268.) Q15, cmt. 2.

(269.) Gluck & Bressman, Part /, supra note 19, at 1004 (second and third alterations in original) (emphasis added) (internal quotation marks omitted).

(270.) Q15, cmt. 16 (emphasis added).

(271.) Gluck & Bressman, Part /, supra note 19, at 1004 n.395 (emphasis added) (internal quotation marks omitted).

(272.) Q15, cmt. 14.

(273.) Gluck & Bressman, Part I, supra note 19, at 1004 n.395 (emphasis added) (internal quotation mark omitted).

(274.) Q15, cmt. 18 (emphasis added).

(275.) Gluck & Bressman, Part I, supra note 19, at 1004 n.395 (alteration in original) (internal quotation marks omitted).

(276.) Q15, cmt. 9.

(277.) Q15(g) (n=111); Gluck & Bressman, Part I, supra note 19, at 1005 fig.11.

(278.) Gluck & Bressman, Part I, supra note 19, at 1004 & nn.396-97.

(279.) Q 15(e) (n=111).

(280.) Q15(b)-(d),(g) (n=111).

(282.) Q 15(f) (n=111).

(281.) Compare Sunstein, supra note 21, at 330-35 (arguing that certain nondelegation canons--including constitutional avoidance, the presumption against preemption, and the major questions doctrine--should trump Chevron deference), with Walker, supra note 21, at 140 (arguing against the conventional view that the modern constitutional avoidance doctrine trumps Chevron deference), and Bamberger, supra note 21, at 111, 114 (arguing that substantive canons should apply at Chevron Step Two).

(283.) Q15(a),(j)(n=111).

(284.) Q19(c) (n= 109). Part IV.C.3 below further addresses these findings.

(285.) Gluck & Bressman, Part I, supra note 19, at 1005-06; accord Walker, supra note 151 ("The survey did not ask whether [congressional] drafters intend to delegate by ambiguity authority for agencies to determine the scope of their own statutory jurisdiction--the question City of Arlington answered in the affirmative.").

(286.) 133 S. Ct. 1863, 1866, 1868-69 (2013).

(287.) Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

(288.) Id. at 843 n.11.

(289.) Skidmore v. Swift & Co., 323 U.S. 134,140 (1944).

(290.) Strauss, supra note 50, at 1144-45; see also United States v. Mead Corp., 533 U.S. 218, 247 (2001) (Scalia, J., dissenting) (explaining that Chevron "create[s] a space, so to speak, for the exercise of continuing agency discretion"); Skidmore, 323 U.S. at 140 (describing the standard as "weight" based on "power to persuade").

(291.) Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005).

(292.) Strauss, supra note 50, at 1145.

(293.) Id.

(294.) See id. at 1146 ("It is not only that agencies have the credibility of their circumstances, but also that they can contribute to an efficient, predictable, and nationally uniform understanding of the law that would be disrupted by the variable results to be expected from a geographically and politically diverse judiciary encountering the hardest ... issues with little experience with the overall scheme and its patterns."); supra Part III.A (presenting findings on the role of federal agencies in the legislative process).

(295.) Strauss, supra note 45, at 1146.

(296.) United States v. Mead Corp., 533 U.S. 218, 229 (2001).

(297.) Id. at 231.

(298.) Id. at 234-38 (reviewing Skidmore factors). See generally Jud Mathews, Deference Lotteries, 91 Tex. L. Rev. 1349, 1356-76 (2013) (elaborating on Chevron, Skidmore, and Mead, providing a literature review, and explaining that the vagueness of the Mead standard means that the application of either Chevron or Skidmore deference will ultimately depend on the random assignment of circuit judges); Walker, supra note 50 (responding to Mathews, supra).

(299.) Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).

(300.) Seminole Rock, 325 U.S. at 414; accord Auer, 519 U.S. at 461.

(301.) See, e.g.. Manning, supra note 38, at 617 (arguing that "the Court should replace Seminole Rock with a standard that imposes an independent judicial check on the agency's determination of regulatory meaning").

(302.) Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1339 (2013) (Scalia, J., concurring in part and dissenting in part) ("For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean...."); accord Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2265-66 (2011) (Scalia, J., concurring).

(303.) Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1225 (2015) (Thomas, J., concurring in the judgment) ("By my best lights, the entire line of precedent beginning with Semi nole Rock raises serious constitutional questions and should be reconsidered in an appropriate case."); accord id. at 1210 (Alito, J., concurring in part and concurring in the judgment) ("The opinions of Justice Scalia and Justice Thomas offer substantial reasons why the Seminole Rock doctrine may be incorrect.").

(304.) The agency rule drafters were also asked about Curtiss-Wright deference, which is a "super-strong deference to executive department interpretations in matters of foreign affairs and national security." Eskridge & Baer, supra note 42, at 1100; see United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) (holding that legislation dealing with matters "within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved"). Only 6% of rule drafters indicated any awareness of this doctrine by name with 2% indicating they had used it in interpretation. Q17(e) (n=109); Q18(e) (n=109).

(305.) Q17-Q18.

(306.) Q17(a)-(d) (n=109); Q18(a)-(d) (n=109).

(307.) Q17(a)-(d) (n=109).

(308.) Q17, cmt. 2; see also id. cmt. 1 ("I don't know these cases intimately by name. I may be familiar with the principles they stand for, but I would have to look them up. I have checked only the ones I know by name.").

(309.) Gluck & Bressman, Part /, supra note 19, at 927 fig. 1, 994.

(310.) See id. at 927 fig. 1.

(311.) Q18(a)-(d) (n=109).

(312.) Q18, cmt. 5 (ellipsis in original).

(313.) See supra Figure 2 (mapping where all of these deference doctrines rank among the interpretive tools agency rule drafters use when drafting).

(314.) Gluck & Bressman, Part I, supra note 19, at 928 fig. 2.

(315.) See Walker, supra note 19, at 721-25.

(316.) See id. at 709-11,721-29.

(317.) United States v. Mead Corp., 533 U.S. 218,229-31 (2001).

(318.) Q19(a)-(h) (n=92). Because this question asks the rule drafters about which factors affect which deference regime applies, the number of respondents considered and the percentage calculations in Table 1 exclude the seventeen respondents who indicated they did not know.

(319.) Q19(a)-(b), (d) (n=92). That four in five rule drafters indicated that agency expertise is a touchstone for Chevron deference may provide support for the argument advanced by a number of scholars that "agency expertise ... should be a necessary condition for Chevron deference." Kent Barnett, Codifying Chevmore, 89 N.Y.U. L. Rev. 1,41 (2015); see also id. at 11-16 (reviewing literature and case law).

(320.) Q19(e)-(g)(n=92).

(321.) Q 19(h) (n=92).

(322.) Id. cmt. 1. The agency rule drafters were also asked if they agreed that formal adjudication is a useful tool for promulgating agency statutory interpretations and if courts defer to agency interpretations in formal adjudications to the same extent as rulemaking. Perhaps unsurprisingly, a significant number either did not know or did not agree:

* Formal adjudication can serve as a useful tool for promulgating agency statutory interpretations: 4% strongly agree, 22% agree, 34% somewhat agree, 30% disagree, 11% strongly disagree. Q16(d) (n=83). Of those who did not weigh in, 23 expressly indicated they did not know.

* Courts defer to agency interpretations in formal adjudication to the same extent as rulemaking: 3% strongly agree, 15% agree, 40% somewhat agree, 37% disagree, 5% strongly disagree. Q16(e) (n=60). Of those who did not weigh in, 47 expressly indicated they did not know.

These findings may just reflect that the respondents are rule drafters, but they may also reflect the scarce attention given--at least in the literature--to Chevron deference in the adjudication context.

(323.) Q9(a) (n= 119); Q14(a) (n=114); Q18(a) (n=109); see supra Figure 2 (providing the full list).

(324.) Gluck & Bressman, Parti, supra note 19, at 999.

(325.) Bressman, supra note 42, at 1443.

(326.) See United States v. Mead Corp., 533 U.S. 218, 239-41,245-46 (2001) (Scalia, J., dissenting) (explaining the confusion Mead causes for courts in deciding whether Chevron applies); see also, e.g" Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 Harv. L. Rev. 467, 480 (2002) (describing Mead as "provid[ing] little guidance to lower courts, agencies, and regulated parties about how to discern congressional intent in any given set of circumstances); Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards, 54 Admin. L. Rev. 807, 813 (2002) (explaining that Mead provides "an undefined standard that invites consideration of a number of variables of indefinite weight"); Adrian Vermeule, Introduction: Mead in the Trenches, 71 GEO. Wash. L. Rev. 347, 361 (2003) (arguing that Mead's opaque standard "inadvertently sent the lower courts stumbling into a no-man's land").

(327.) Q18, cmt. 2.

(328.) Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1341 (2013) (Scalia, J., concurring in part and dissenting in part); see also Robert A. Anthony, The Supreme Court and the APA: Sometimes They Just Don't Get It, 10 Admin. L.J. Am. U. 1, 11-12 (1996) (asserting that Auer deference encourages agency rule drafters to be "vague in framing regulations with the plan of issuing 'interpretations' to create the intended new law without observance of notice and comment procedures").

Christopher J. Walker, Assistant Professor of Law, Michael E. Moritz College of Law, The Ohio State University. For helpful feedback on the empirical study and prior drafts, thanks are due to Nick Bagley, Kent Barnett, Jim Brudney, Reeve Bull, Greg Caldeira, Ruth Colker, Tino Cuellar, Paul Daly, Emily Hammond, Kristin Hickman, James Lindgren, Jerry Mashaw, Jud Mathews, Deborah Merritt, Aaron Nielson, James Phillips, Connor Raso, Guy Rub, Peter Shane, Kevin Stack, Paul Stancil, Peter Strauss, Peter Swire, Philip Wallach, and David Zaring; to participants at the AALS New Voices in Administrative Law Workshop, Big Ten Junior Faculty Conference, Brigham Young University Law Faculty Workshop, Department of Homeland Security Regulatory Affairs Practice Group Workshop, Federalist Society Seventeenth Annual Faculty Conference, Fordham Law Review Chevron at 30 Symposium, Moritz Faculty and Junior Faculty Workshops, Ohio Legal Scholarship Workshop, University of Dayton Law Faculty Workshop, and University of Wisconsin Empirical Rulemaking Conference; and, of course, to Lisa Bressman and Abbe Gluck, who graciously shared their survey, methodology, and experiences from a similar project on statutory drafting. Thanks also to Chris Holloman of The Ohio State University's Statistical Consulting Service for support with the methodology and analysis; to Chris Larocco and James Mee as well as Moritz librarian Matt Cooper for research assistance; and to the Center for Interdisciplinary Law and Policy Studies at The Ohio State University for funding. The author's utmost thanks go to the agency general counsels, deputies, and assistants who spent countless hours assisting with the study and the 128 agency rule drafters who took the time to respond to the 195-question survey.
Table 1

Which Factors Affect Whether Chevron Deference Applies to Agency's
Interpretations of Ambiguous Statutes It Administers?

Congress Authorized Agency Rulemaking or Formal Adjudication       84%
Agency Interpretation Made by Rulemaking or Formal Adjudication    80%
Agency Expertise Relevant to Statutory Provision                   79%
Agency Interpretation Sets Forth Bounds of Agency's Jurisdiction   46%
Agency Interpretation Is Longstanding                              43%
Agency Interpretation Is Contemporaneous                           20%
Agency Interpretation Furthers Uniform Administration of Law       18%
Agency Is Politically Accountable for Its Interpretation            9%

Figure 1
Knowledge of Interpretive Tools by Name

                                Agency Rule   Congressional
                                 Drafters       Drafters

Chevron                             94%            82%
Ordinary Meaning                    92%
Skidmore                            81%            39%
Against Preemption                  78%            77%
Superfluities                       69%            63%
Federalism/Waiver of Immunity       66%            53%
Constitutional Avoidance            62%            25%
Expressio Unius                     62%            44%
Mead                                61%            28%
Whole Act Rule                      59%            53%
Seminole Rock!Auer                  53%
In Pari Materia                     50%            36%
Ejusdem Generis                     47%            35%
Whole Code Rule                     38%            26%
Noscitur a Sociis                   37%            15%
Rule of Lenity                      36%            35%

Figure 2
Agency Rule Drafters' Use of Interpretive Tools

Chevron                            90%
Whole Act Rule *                   89%
Ordinary Meaning                   87%
Mead *                             80%
Noscitur a Sociis *                79%
Legislative History                76%
Skidmore                           63%
Ejusdem Generis *                  60%
Expressio Unius *                  48%
Against Preemption                 47%
Superfluities *                    41%
Dictionaries (to Interpret) *      39%
Seminole Rock!Auer                 39%
Constitutional Avoidance           28%
In Pari Materia *                  25%
Against Waiver of Immunity         23%
Against Extraterritoriality        19%
Dictionaries (to Draft) *          19%
Against Implied Right of Action    16%
Whole Code Rule *                  1%

Figure 3
Knowledge of Semantic Canons by Name

                    Agency Rule Drafters    Congressional Drafters

Ordinary Meaning             92%                     92%
Superfluities                69%                     63%
Expressio Unius              62%                     44%
Whole Act Rule               59%                     43%
In Pari Materia              50%                     36%
Ejusdem Generis              47%                     35%
Whole Code Rule              38%                     26%
Noscitur a Sociis            37%                     15%

Figure 4
Agency Drafters' Use of Semantic Canons

                              By Name    By Concept

Ordinary Meaning                87%
Whole Act Rule                  55%         89%
Noscitur a Sociis               26%         79%
Ejusdem Generis                 35%         60%
Expressif) Unius                50%         48%
Superfluities                   61%         41%
Dictionaries (to Interpret)                 39%
In Pari Materia                 39%         25%
Dictionaries (to Draft)                     19%
Whole Code Rule                 24%          1%

Figure 5

Knowledge vs. Use of Substantive Canons

                                  Familiarity   Use

Against Preemption                    78%       47%
Against Waiver of Immunity            66%       23%
Constitutional Avoidance              62%       28%
Against Implied Right of Action       44%       16%
Against Extraterritoriality           42%       19%
Rule of Lenity                        36%       13%

Note: Table made from bar graph.

Figure 6

Agency Participation in Legislative Drafting

                          Always   Often   Sometimes

Technical: Agency          20%      57%       15%
Technical: Personal         7%      21%       29%
Substantive: Agency        13%      46%       27%
Substantive: Personal       4%      14%       29%

Note: Table made from bar graph.


Perceived Purposes of Legislative History

                                           Agency Rule   Congressional
                                             Drafters      Drafters

Explain the Purpose(s)
of the Statute                                 93%           96%

Explain the Meaning of Particular
Terms in the Statute                           80%           91%

Shape the Way Individuals or Courts
Will Interpret Contested Terms                 67%           91%

Shape the Way Agencies Will
Interpret Deliberate Ambiguities               65%           94%

Shape the Way Individuals or Courts
Will Interpret Deliberate Ambiguities          62%           93%

Indicate a Decision to Leave a
Deliberate Ambiguity in the Statute            54%           55%

Indicate a Disagreement over the Meaning
of a Particular Term or Provision              49%           77%

Shape the Way the Statute Will Apply
to Unforeseen Future Developments              47%           78%

Facilitate Political "Deals" that
Resulted in Enacting the Statute               39%           92%

Note: Table made from bar graph.


Perceived Reliability of Legislative History

                                 Very       Somewhat
                               Reliable     Reliable

Floor Statements
by Party Leadership               1%          34%

Floor Statements
by Members Opposed                3%          34%

Floor Statements
by Members in Support             3%          48%

Hearing Transcripts              13%          48%

Signing Statements               14%          48%

Floor Statements
by Sponsor(s)                     8%          57%

Committee Reports
in Opposition                    22%          55%

Committee Reports
in Support                       37%          59%

Conference Reports               59%          40%

Note: Table made from bar graph.

Figure 9
Factors that Affect Reliability of Legislative History

                             Agency Rule     Congressional
                              Drafters         Drafters

Whether Before/
After Legislation Passed       38%                54%
Close in Time
Prior to Passage               34%                44%
Whether Essential
to Political Deal              32%                61%
Whether Supports/
Opposes                        27%                48%
Whether Drafted
by Member/Staff                20%                25%
If Members
Had Heard/Read                 12%                23%

Note: Table made from bar graph.

Types of Statutory Gaps or Ambiguities
Congress Intends for Federal Agencies to Fill

                                          Agency Rule     Congressional
                                           Drafters         Drafters

Implementation Details                       99%              99%
Ageny's Area of Expertise                    92%              93%
Scope of Agency's Jurisdiction               75%
Omissions in Statutes                        72%              72%
Federal-State Agencies Labor Division        65%              70%
Major Policy Questions                       56%              28%
Major Economic Questions                     49%              38%
Preemption of State Law                      46%              36%
Major Political Questions                    32%              33%
Serious Constitutional Questions             24

Note: Table made from bar graph.

Figure 11

Awareness and Use of Deference Doctrines

                     Use (by Name)   Awareness (by Name)

Chevron                   90%                94%
Skidmore                  63%                81%
Mead                      49%                61%
Seminole Rock/Auer        39%                53%

Note: Table made from bar graph.
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Title Annotation:III. Legislative History B. Purposes of Legislative History through Conclusion, with footnotes, table, and figures, p. 1038-1067
Author:Walker, Christopher J.
Publication:Stanford Law Review
Date:May 1, 2015
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