Inside agency statutory interpretation

Stanford Law Review

Volumn 67, Issue 5, 2015, Pages 999-1079

  Walker, Christopher J ^a  

^a OHIO STATE UNIVERSITY   (United States)

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EID: 84929351185     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (405)

1. Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231 (1994).
2. 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.
3. 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.
4. Stack, supra, at 356-57.
5. CLYDE WAYNE CREWS, 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).
6. Exec. Order No. 13,655, 78 Fed. Reg. 80,451, 80,462 (Dec. 31, 2013) (displaying the last page from 2013).
7. CREWS, supra note 3, at 61 (noting that 1151 of the 80,462 pages were blank).
8. 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).
9. 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).
10. 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).
11. 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 the institutional approach to relations between politicians and bureaucrats.”).
12. 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).
13. 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”).
14. Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments of Political Control, 3 J.L. ECON. & ORG. 243, 254 (1987).
15. Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165, 166 (1984).
16. 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].
17. 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).
18. 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).
19. 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 trade off justibetween the principal’s desire to exploit the agent’s informational advantages and the principal’s concern that the agent will pursue divergent goals.”).
20. Miller, supra note 8, at 211-12.
21. 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.
22. 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.
23. branches for control of agency action” (italics omitted)).
24. Garoupa & Mathews, supranote 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).
25. McNollgast & Daniel B. Rodriguez, Administrative Law Agonistes, 108 COLUM. L. REV. SIDEBAR 15 (2008), http://columbialawreview.org/wp-content/uploads/2008/04/15_McNollgast.pdf (responding to Bressman, supra note 6).
26. 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).
27. 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).
28. Adrian Vermeule, The Delegation Lottery, 119 HARV. L. REV. F. 105, 105-06 (2006), http://ssrn.com/abstract=891831.
29. Daniels, supra note 11, at 383-411.
30. U.S. CONST. art. I, § 1.
31. 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.
32. PHILIP HAMBURGER, IS ADMINISTRATIVE LAW UNLAWFUL? (2014).
33. 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 http://ssrn.com/abstract=247585.
34. Adrian Vermeule, No, 93 TEX. L. REV. (forthcoming May 2015) (reviewing the same), available at http://ssrn.com/abstract=2488724.
35. Kathryn A. Watts, Rulemaking as Legislating, 103 GEO. L.J. 1003 (2015).
36. Terry M. Moe, Political Control and the Power of the Agent, 22 J.L. ECON. &.
37. ORG. 1, 3 (2006).
38. Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary.
39. Inquiry into Agency Statutory Interpretation, 57 ADMIN. L. REV. 501, 537 (2005).
40. 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.
41. 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].
42. 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].
43. Gluck & Bressman, Part I, supra note 19, at 938.
44. Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 330(2000) (arguing that substantive canons trump Chevron),.
45. Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain, 89 GEO. L.J. 833, 915 (2001) (arguing that Chevron trumps constitutional avoidance).
46. Christopher J. Walker, Avoiding Normative Canons in the Review of Administrative Interpretations of Law: A Brand X Doctrine of Constitutional Avoidance, 64 DMIN. L. REV. 139, 143-44 (2012) (same).
47. 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).
48. William N. Eskridge, 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.
49. Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. ECON. & ORG. 81, 91-99 (1985).
50. Kevin M. Stack, Purposivism in the Executive Branch: How Agencies Interpret Statutes, 109 NW. U. L. REV. (forthcoming 2015) (on file with author).
51. 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).
52. Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 928 (2003).
53. Christopher J. Walker, Chevron Inside the Regulatory State: An Empirical Assessment, 83 FORDHAM L. REV. 703 (2014).
54. Peter M. Shane & Christopher J. Walker, Foreword: Chevron at 30: Looking Back and Looking Forward, 83 FORDHAM L. REV. 475, 477-84 (2014) (reviewing literatureon the Chevron Step Zero and Step One debates).
55. 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.
56. 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”).
57. 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.”.
58. 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.
59. 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.”).
60. 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.
61. 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).
62. Gluck & Bressman, Part I, supra note 19, at 913.
63. Mashaw, supra note 17, at 501-02.
64. 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 heir conclusions; that is, the relationship between what they do and what they say they do”).
65. Sunstein Vermeule, supra note 22, at 928.
66. ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION 206 (2006).
67. 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).
68. Eskridge, supra note 22, at 427.
69. 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).
70. 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);.
71. 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”).
72. 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.
73. Stack, supra note 22.
74. 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.”.
75. Stack, supra note 2, at 358 (footnote omitted);.
76. John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 612 (1996).
77. Frank C. Newman, How Courts Interpret Regulations, 35 CALIF. L. REV. 509 (1947),.
78. Lars Noah, Divining Regulatory Intent: The Place for a “Legislative History” of Agency Rules, 51 HASTINGS L.J. 255, 306-22 (2000).
79. Russell L. Weaver, Judicial Interpretation of Administrative Regulations: An Overview, 53 U. CIN. L. REV. 681 (1984)).
80. 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.
81. Sunstein & Vermeule, supra note 22, at 919. The empirical projects Sunstein and Vermeule suggested.
82. William N. Eskridge, Norms, Empiricism, and Canons in Statutory Interpretation, 66 U. CHI. L. REV. 671, 675 (1999) (noting difficulties in conducting such empirical studies).
83. 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 . . . .”).
84. 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.”).
85. Gluck & Bressman, Part I, supra note 19, at 905-06.
86. William N. Eskridge, & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083 (2008).
87. Thomas W. Merrill, Judicial Deference to Executive Precedent, 101 YALE L.J. 969 (1992).
88. Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy?: An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823 (2006).
89. Connor N. Raso & William N. Eskridge, Chevronas 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.
90. Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 VAND. L. REV. 1443 (2005).
91. Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 COLUM. L. REV. 1235 (2007).
92. 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).
93. Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J. 984.
94. 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).
95. DAVID EPSTEIN & SHARYN O’HALLORAN, DELEGATING POWERS: A TRANSACTION COST POLITICS APPROACH TO POLICY MAKING UNDER SEPARATE POWERS (1999).
96. DAVID E. LEWIS, PRESIDENTS AND THE POLITICS OF AGENCY DESIGN: POLITICAL INSULATION IN THE UNITED STATES GOVERNMENT BUREAUCRACY, 1946-1997 (2003).
97. McCubbins & Schwartz, supra note 7.
98. McCubbins, Noll & Weingast, Structure and Process,.
99. Terry M. Moe, The Politics of Bureaucratic Structure, in CAN THE GOVERNMENT GOVERN? 267 (John E. Chubb & Paul E. Peterson eds., 1989).
100. JERRY L. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY DISABILITY CLAIMS (1983).
101. Jaya Ramji-Nogales et al., Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295(2007).
102. Bressman & Gluck, Part II, supra note 19, at 765.
103. Mashaw, supra note 17, at 505.
104. Peter L. Strauss, “Deference” Is Too Confusing—Let’s Call Them “Chevron Space” and “Skidmore Weight,” 112 COLUM. L. REV. 1143, 1146 (2012).
105. Strauss, supra note 22, at 329-31.
106. Christopher J. Walker, How to Win the Deference Lottery, 91 TEX. L. REV. SEE ALSO 73, 79 (2013), http://www.texaslrev.com/wp-content/uploads/Walker.pdf.
107. Gluck, supra note 29, at 1761-68 (surveying the debate).
108. 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.”.
109. Bressman & Gluck, Part II, supra note 19, at 768. The use of legislative history is discussed in more detail in Part III.
110. Indeed, using the findings of the Bressman and Gluck study on congressional drafting.
111. James Brudney has succinctly demonstrated how a court’s assessment of interpreter fidelity would arguably differ from Congress’s.
112. James J. Brudney, Faithful Agency Versus Ordinary Meaning Advocacy, 57 ST. LOUIS U. L.J. 975 (2013).
113. Gluck & Bressman, Part I, supra note 19, at 919-24.
114. Mashaw, supra note 17, at 522 tbl.1 (detailing ten “Canons for Institutionally Responsible Statutory Interpretation”).
115. 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 eighteenUSDA agencies and offices (for example, Food Safety and Inspection Service, Forest Service, and Office of Risk Assessment and Cost-Benefit Analysis);.
116. 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.
117. 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.
118. FLOYD J. FOWLER, 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).
119. 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.
120. 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).
121. 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).
122. 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.
123. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside: Methods Appendix, STAN. L. REV. 12 & n.45 (May 2013), http://www.stanfordlawreview.org/print/article/statutory-interpretation-inside-methods-appendix [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.
124. 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 ere made to conduct smaller case studies on particular agencies, but agencies resisted that idea.
125. The anonymous nature of the survey limits the ability to calculate a response rate by agency or deprtment. However, because the survey was rolled out at different times t 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.
126. 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 “selfdeception” and “other-deception.”.
127. 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; s for self-deception, the survey was designed to ask about the same interpretive tools in different ways, by name and by principle.
128. 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.
129. 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.”).
130. 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.
131. Gluck & Bressman, Part I, supra note 19, at 920, 921 & tbl.1.
132. JOHN F. MANNING & MATTHEW C. STEPHENSON, LEGISLATION AND REGULATION: CASES AND MATERIALS 202 (2d ed. 2013).
133. 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.”).
134. SCALIA & GARNER, supra note 84, at 61.
135. James J. Brudney, Canon Shortfalls and the Virtues of Political Branch Interpretive Assets, 98 CALIF. L. REV. 1199, 1203 (2010).
136. James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 VAND. L. REV. 1, 12 (2005).
137. John F. Manning, Continuity and the Legislative Design, 79 NOTRE DAME L. REV. 1863, 1864-65 (2004).
138. John Copeland Nagle, Waiving Sovereign Immunity in an Age of Clear Statement Rules, 1995 WIS. L. REV. 771, 801-02.
139. 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)).
140. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 544 (1947).
141. JOEL PRENTISS BISHOP, COMMENTARIES ON THE WRITTEN LAWS AND THEIR INTERPRETATION § 2, at 3 (Boston, Little, Brown & Co. 1882) (“[O]n the whole, the rules of statutory interpretation are specially stable.”).
142. Abner J. Mikva, Reading and Writing Statutes, 48 U. PITT. L. REV. 627, 629 (1987).
143. James J. Brudney, Recalibrating Federal Judicial Independence, 64 OHIO ST. L.J. 149, 179, 180 & n.113 (2003) (questioning congressional awareness of canons).
144. SCALIA & GARNER, supra note 84.
145. Gluck & Bressman, Part I, supra note 19, at 912, 913 & n.16 (chronicling the debate).
146. Josh Blackman, Archive of Articles Discussing Posner-Scalia Disagreement, JOSH BLACKMAN’S BLOG, http://joshblackman.com/blog/category/articles/posner-v-scalia (last visited Apr. 28, 2015).
147. 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).
148. MANNING & STEPHENSON, supra note 84, at 205-07 (discussing the impact of Llewellyn’s criticism of the canons and subsequent scholarship).
149. SCALIA & GARNER, supra note 84, at 59 (bolding omitted).
150. MANNING & STEPHENSON, supra note 84, at 202.
151. Scalia, supra note 88, at 26.
152. Richard A. Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 806, 816 (1983).
153. Cont’l Cas. Co. v. Pittsburgh Corning Corp., 917 F.2d 297, 300 (7th Cir. 1990) (calling the canons “figleaves for decisions reached on other grounds”).
154. Gluck & Bressman, Part I, supra note 19, at 930.
155. Q9(f) (n=119); Q10(f) (n=119); Q14(a)-(d).
156. Q14(e) (n=114).
157. Q9(a) (n=119); Q10(a) (n=119).
158. 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 technicalsense” (bolding omitted)).
159. Q14(f) (n=114) (“Dictionaries should be used by interpreters in determining the meaning of terms used in statutes (or rules).”).
160. Q9(a)-(h) (n=119); Q14(e) (n=114).
161. Gluck & Bressman, Part I, supra note 19, at 927 fig.1, 931 fig.3.
162. 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.
163. 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.
164. Gluck & Bressman, Part I, supra note 19, at 1016 tbl.3 (developing a typology of canon awareness and use).
165. 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).
166. 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.
167. Gluck & Bressman, Part I, supra note 19, at 932-39.
168. Q14(a) (n=114).
169. Q14(b) (n=114). No one responded that it never applies; only one responded that it rarely applies.
170. SCALIA & GARNER, supra note 84, at 170.
171. 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)).
172. 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.
173. Q9(b)-(c) (n=119).
174. 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.
175. 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)).
176. Q10(b)-(c) (n=119); Q13(a), (d).
177. Gluck & Bressman, Part I, supra note 19, at 933.
178. Q13(b)-(c) (n=117).
179. Q9(d)-(e) (n=119).
180. Q10(d)-(e) (n=119).
181. Q13(b)-(c).
182. Gluck & Bressman, Part I, supra note 19, at 932 & fig.4, 933-36.
183. Gluck & Bressman, Part I, supra note 19, at 934-35 (footnote omitted).
184. Q14(a)-(b) (n=114).
185. Q14(c) (n=114).
186. Q14(d) (n=114).
187. Q9(f)-(g) (n=119).
188. 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.”).
189. Q14, cmt. 4; see also Q15, cmt. 9 (“Congress is producing some pretty terrible stuff to work with.”).
190. 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.”).
191. Gluck & Bressman, Part I, supra note 19, at 933-34.
192. SCALIA & GARNER, supra note 84, at 69 (bolding omitted).
193. Q9(a) (n=119); Q10(a) (n=119).
194. SCALIA & GARNER, supra note 84, at 69.
195. 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.”).
196. 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.”).
197. Q14(d)-(e) (n=114).
198. William N. Eskridge. et al., LEGISLATION AND STATUTORY INTERPRETATION 252 (2000).
199. MANNING & STEPHENSON, supra note 84, at 115.
200. 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).
201. 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).
202. (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.
203. SCALIA & GARNER, supra note 84, at 415-24.
204. Gluck & Bressman, Part I, supra note 19, at 938.
205. (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).
206. Q14(f) (n=114).
207. Q14(e)-(f) (n=114).
208. Christopher Walker, Does Congress Really Mean to Delegate Interpretative Authority to Agencies?, JOTWELL (Aug. 16, 2013), http://adlaw.jotwell.com/does-congress-really-mean-to-delegate-interpretative-authority-to-agencies.
209. MANNING & STEPHENSON, supra note 84, at 247.
210. HENRY M. HART. & 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).
211. Henry J. Friendly, Benchmarks 210 (1967).
212. Gluck & Bressman, Part I, supra note 19, at 940.
213. William N. Eskridge, & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as onstitutional Lawmaking, 45 VAND. L. REV. 593, 598-629 (1992) (chronicling substantive canons).
214. 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 “believe[s] 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.
215. Q24(c)-(d) (n=99).
216. 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);.
217. MANNING & STEPHENSON, supra note 84, at 267-68.
218. Q24(b) (n=99).
219. Q24(a), (e)-(f) (n=99).
220. Q25(b)-(d) (n=99).
221. 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.
222. Gluck & Bressman, Part I, supra note 19, at 942.
223. Mashaw, supra note 17, at 508.
224. 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).
225. 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”).
226. Gluck & Bressman, Part I, supra note 19, at 924-25.
227. Strauss, supra note 22, at 329.
228. Mashaw, supra note 17, at 511 (discussing Strauss, supra note 22).
229. Aprill, supra note 34, at 2085-87 (describing agencies’ “interpretive voice[]” in comparative expertise terms).
230. 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”).
231. Gluck & Bressman, Part II, supra note 19, at 768.
232. Gluck & Bressman, Part I, supra note 19, at 972.
233. Gluck & Bressman, Part II, supra note 19, at 768.
234. 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.
235. Q29(a)-(d) (n=98).
236. Q29(a), (c) (n=98).
237. Q29(b), (d) (n=98).
238. Q29(e)-(f) (n=98).
239. Q29(e).
240. Q29(f).
241. Q31 (n=98).
242. 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.
243. Q14(f).
244. Gluck & Bressman, Part I, supra note 19, at 975.
245. 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%).
246. Q31, cmt. 21.
247. 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).
248. Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1844).
249. Q32, cmt. 1.
250. Q31, cmt. 20.
251. 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.”).
252. Q31, cmt. 13.
253. Gluck & Bressman, Part I, supra note 19, at 970.
254. Q30(a)-(i) (n=98).
255. Gluck & Bressman, Part I, supra note 19, at 971 fig.7.
256. Q30(a)-(b) (n=98); Gluck & Bressman, Part I, supra note 19, at 971 fig.7.
257. Q30(e) (n=98); Gluck & Bressman, Part I, 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).
258. Q30(c), (h) (n=98).
259. Gluck & Bressman, Part I, supra note 19, at 971 fig.7.
260. Q30(f) (n=98).
261. Gluck & Bressman, Part I, supra note 19, at 972.
262. Q31, cmt. 17.
263. Gluck & Bressman, Part I, supra note 19, at 971 fig.7.
264. Q30(d) (n=98).
265. 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.”).
266. Q31, cmt. 1.
267. Victoria F. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 YALE L.J. 70, 72-73 (2012).
268. 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.
269. 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.
270. Gluck & Bressman, Part I, supra note 19, at 977 fig.8.
271. 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.”).
272. 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).
273. Gluck & Bressman, Part I, supra note 19, at 976-78.
274. 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”).
275. Nourse, supra note 210, at 118-27 (capitalization altered).
276. Gluck & Bressman, Part I, supra note 19, at 979.
277. Q32(d) (n=92); Q32(e) (n=95); Q32(f) (n=91); Q32(g) (n=92); Q32(h) (n=92); Q32(i) (n=86).
278. 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 & Pres[idential] signing statement”).
279. 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).
280. 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.”).
281. 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.
282. Q33(g) (n=98).
283. Q32(c) (n=87); Q32(i) (n=86).
284. Nourse, supra note 210, at 98-117;.
285. 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.”).
286. Q33(c)-(d) (n=98).
287. 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.
288. Q33(a)-(b) (n=98); Gluck & Bressman, Part I, supra note 19, at 983 fig.9.
289. Q20, cmt. 5.
290. 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), http://www.scotusblog.com/2012/12/the-role-of-dojs-appellate-staffs-in-the-supreme-court-and-in-the-courts-of-appeals.
291. 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.
292. David E. Lewis & Jennifer L. Selin, SOURCEBOOK OF UNITED STATES EXECUTIVE AGENCIES (1st ed. 2012), available at https://www.acus.gov/publication/sourcebook-united-states-executive-agencies. 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.
293. Q15-Q23, Q28. The Bressman and Gluck study, by contrast, included 45 questions on administrative law.
294. Gluck & Bressman, Part I, supra note 19, at 992.
295. 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.
296. Bressman & Gluck, Part II, supra note 19, at 767.
297. 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.
298. Stephanie Hoffer & Christopher J. Walker, The Death of Tax Court Exceptionalism, 99 MINN. L. REV 221, 271-73 (2014).
299. Walker, supra note 21, at 173-82.
300. Christopher J. Walker, The Ordinary Remand Rule and the Judicial Toolbox for Agency Dialogue, 82 GEO. WASH. L. REV. 1553, 1561-78 (2014).
301. Walker, supra note 50, at 78.
302. Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740-41 (1996).
303. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.11 (1984).
304. Nat’l 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.”).
305. Walker, supra note 21, at 170-71.
306. Brand X, 545 U.S. at 983.
307. Negusie v. Holder, 555 U.S. 511, 523 (2009).
308. Walker, supra note 238, at 1561-78 (tracing the evolution of the ordinary remand rule).
309. Negusie, 555 U.S. at 523 (quoting Brand X, 545 U.S. at 980).
310. 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.
311. 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.”.
312. 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.”.
313. Q12 (n=119).
314. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 1016-17 (2005) (Scalia, J., dissenting).
315. The rule drafters were also asked about whether they were familiar by name with Brand X, 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 Q22-Q23. 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)-(c); Q23(b)-(c). The findings with respect to these questions are explored more fully in Walker, supra note 19, at 726, 727 & fig.4, 728.
316. Gluck & Bressman, Part I, supra note 19, at 1003-04, 1005 & fig.11, 1006.
317. Bressman & Gluck, Part II, supra note 19, at 765.
318. 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).
319. 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.
320. 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).
321. Merrill & Hickman, supra note 21, at 836-37.
322. Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 207-11 (2006).
323. Shane & Walker, supra note 24, at 477-84 (reviewing literature on the Chevron Step Zero debate).
324. Q15(a) (n=111); Gluck & Bressman, Part I, supra note 19, at 1004, 1005 fig.11.
325. 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.”.
326. Q15(h)-(j); Gluck & Bressman, Part I, supra note 19, at 1004, 1005 fig.11.
327. 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”).
328. Gluck & Bressman, Part I, supra note 19, at 1003.
329. 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.
330. Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 ADMIN. L. REV. 19 (2010) (reviewing literature and providing a summary of doctrinal development).
331. Gluck & Bressman, Part I, supra note 19, at 1003.
332. Q15, cmt. 7.
333. Gluck & Bressman, Part I, supra note 19, at 1004 (internal quotation marks omitted).
334. Q15, cmt. 2.
335. Gluck & Bressman, Part I, supra note 19, at 1004 (second and third alterations in original) (emphasis added) (internal quotation marks omitted).
336. Q15, cmt. 16 (emphasis added).
337. Gluck & Bressman, Part I, supra note 19, at 1004 n.395 (emphasis added) (internal quotation marks omitted).
338. Q15, cmt. 14.
339. Gluck & Bressman, Part I, supra note 19, at 1004 n.395 (emphasis added) (internal quotation mark omitted).
340. Q15, cmt. 18 (emphasis added).
341. Gluck & Bressman, Part I, supra note 19, at 1004 n.395 (alteration in original) (internal quotation marks omitted).
342. Q15, cmt. 9.
343. Q15(g) (n=111).
344. Gluck & Bressman, Part I, supra note 19, at 1005 fig.11.
345. Gluck & Bressman, Part I, supra note 19, at 1004 & nn.396-97.
346. Q15(e) (n=111).
347. Q15(b)-(d), (g) (n=111).
348. 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),.
349. Walker, supra note 21, at 140 (arguing against the conventional view that the modern constitutional avoidance doctrine trumps Chevron deference),.
350. Bamberger, supra note 21, at 111, 114 (arguing that substantive canons should apply at Chevron Step Two).
351. Q15(f) (n=111).
352. Q15(a), (j) (n=111).
353. Q19(c) (n=109). Part IV.C.3 below further addresses these findings.
354. Gluck & Bressman, Part I, supra note 19, at 1005-06.
355. 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.”).
356. 133 S. Ct. 1863, 1866, 1868-69 (2013).
357. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).
358. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
359. Strauss, supra note 50, at 1144-45.
360. 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”).
361. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005).
362. Strauss, supra note 50, at 1145.
363. “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.
364. Presenting findings on the role of federal agencies in the legislative process.
365. Strauss, supra note 45, at 1146.
366. United States v. Mead Corp., 533 U.S. 218, 229 (2001).
367. 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).
368. Walker, supra note 50 (responding to Mathews, supra).
369. Auer v. Robbins, 519 U.S. 452 (1997).
370. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945).
371. Seminole Rock, 325 U.S. at 414.
372. Accord Auer, 519 U.S. at 461.
373. 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”).
374. 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 . . . .”).
375. Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2265-66 (2011) (Scalia, J., concurring).
376. 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.”).
377. 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.”).
378. 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).
379. Q17-Q18.
380. Q17(a)-(d) (n=109); Q18(a)-(d) (n=109).
381. Q17(a)-(d) (n=109).
382. 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.”).
383. Gluck & Bressman, Part I, supra note 19, at 927 fig.1, 994.
384. Q18(a)-(d) (n=109).
385. Q18, cmt. 5 (ellipsis in original).
386. Figure 2 (mapping where all of these deference doctrines rank among the interpretive tools agency rule drafters use when drafting).
387. Gluck & Bressman, Part I, supra note 19, at 928 fig.2.
388. Walker, supra note 19, at 721-25.
389. United States v. Mead Corp., 533 U.S. 218, 229-31 (2001).
390. 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.
391. 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.”.
392. Kent Barnett, Codifying Chevmore, 89 N.Y.U. L. REV. 1, 41 (2015).
393. Q19(e)-(g) (n=92).
394. Q19(h) (n=92).
395. 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.
396. Q9(a) (n=119); Q14(a) (n=114); Q18(a) (n=109); see supra Figure 2 (providing the full list).
397. Gluck & Bressman, Part I, supra note 19, at 999.
398. Bressman, supra note 42, at 1443.
399. 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).
400. 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”).
401. 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”).
402. 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”).
403. Q18, cmt. 2.
404. Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1341 (2013) (Scalia, J., concurring in part and dissenting in part).
405. 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”).