Purposivism in the executive branch: How agencies interpret statutes

Northwestern University Law Review

Volumn 109, Issue 4, 2015, Pages 871-932

  Stack, Kevin M ^a  

^a VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84947093225     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (249)

1. See JERRY L. MASHAW, CREATING THE ADMINISTRATIVE CONSTITUTION: THE LOST ONE HUNDRED YEARS OF AMERICAN ADMINISTRATIVE LAW (2012) (excavating the wide range of administrative practice in the country’s first century); JOHN PRESTON COMER, LEGISLATIVE FUNCTIONS OF NATIONAL ADMINISTRATIVE AUTHORITIES 21–112 (1927) (providing a compilation of administrative delegations prior to 1927).
2. See, e.g., Richard B. Stewart, Madison’s Nightmare, 57 U. CHI. L. REV. 335, 338–39 (1990) (noting that following the New Deal, Congress continued to create programs that delegated broad implementing authority to agencies); Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 424 & n.9 (1987) (noting the rapid rise of delegation to administrative agencies following the New Deal).
3. Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 ADMIN. L. REV. 501, 502–03 (2005) [hereinafter Mashaw, Norms]. For an early expression of the same, see Marshall E. Dimock, The Role of Discretion in Modern Administration, in THE FRONTIERS OF PUBLIC ADMINISTRATION 45, 56 (John M. Gaus, Leonard D. White & Marshall E. Dimock eds., 1936), explaining “[t]he initial responsibility for enforcing the law falls to administrative officials; it is only when extraordinary circumstances require it that the enforcement agencies of the judicial department are brought into operation. There is no intrinsic difference between law which the administrator carries out and the law which the judge enforces; the principal difference is that the judge usually has the last word in case of a conflict of interpretation.” For more recent expressions, see, for example, Robert A. Katzmann, Madison Lecture, Statutes, 87 N.Y.U. L. REV. 637, 656 & n.111 (2012), in which Judge Katzmann documents recent recognition of agencies as the first and frequently primary interpreters of statutes, and sources discussed in infra Part I.
4. Scholars have been railing against this perception for some time. In 1936, Marshall Dimock complained, “[j]udges still talk about law as if it were the monopoly of the legal profession. They assume that all judge-made law consists of rules and principles, whereas administrative discretion is arbitrary in its very nature.” Dimock, supra note 3, at 52. This theme finds prominent expression in Edward Rubin’s work. See, e.g., EDWARD L. RUBIN, BEYOND CAMELOT: RETHINKING POLITICS AND LAW FOR THE MODERN STATE 212 (2005) (providing an account of the conceptual awkwardness of early judge-centered conceptions of law for the modern state); see also JEREMY WALDRON, THE DIGNITY OF LEGISLATION 11 (1999) (questioning why common law developed by judges and courts remains central focus of jurisprudence in the age of legislation); Nestor M. Davidson & Ethan J. Leib, Regleprudence—At OIRA and Beyond, 103 GEO. L.J. 259 (2015) (calling for development of a jurisprudence attentive to law beyond the courts, and providing a case study of OIRA’s practice of stare decisis).
5. See Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189, 1190 & n.2 (2006) (noting both the dearth of literature on executive branch statutory interpretation and the importance of the issue). This Article addresses only federal agencies and follows the dominant trend of treating them as part of the Executive Branch. See id. at 1191 nn.3–4 (noting that locating agencies within the Executive Branch is the dominant trend).
6. See Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593, 593–95 (1995) (noting that a fundamental project of theories of statutory interpretation is reconciling the judicial role with fidelity to legislative supremacy).
7. See Mashaw, Norms, supra note 3, at 522 tbl.1; 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, 347 (1990) [hereinafter Strauss, Agency Interpretation]; KENT GREENAWALT, STATUTORY AND COMMON LAW INTERPRETATION 141–74 (2013).
8. ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION 213–14, 226 (2006) (suggesting that agencies’ superior expertise may justify wider-ranging interpretive methods than apply for courts); Michael Herz, Purposivism and Institutional Competence in Statutory Interpretation, 2009 MICH. ST. L. REV. 89, 94–106 (arguing that agencies’ institutional competences justify a purposive approach to statutory interpretation); see also GREENAWALT, supra note 7, at 146–53 (examining implications of agency and court institutional differences for their interpretive approaches); 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, 420–27 [hereinafter Eskridge, Expanding Chevron’s Domain] (arguing that agencies comparative expertise and accountability better suit them to interpret statutes broadly in accordance with their purposes, taking into account political preferences).
9. Mashaw, Norms, supra note 3, at 525; Kevin M. Stack, Agency Statutory Interpretation and Policymaking Form, 2009 MICH. ST. L. REV. 225, 226 [hereinafter Stack, Agency Policymaking Form].
10. And the literature has questioned the extent to which an authentic and independent agency practice is possible given the structures of agency representation in the Supreme Court. See Margaret H. Lemos, The Solicitor General as Mediator Between Court and Agency, 2009 MICH. ST. L. REV. 185, 187.
11. J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928); accord Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (invoking the “intelligible principle” standard in reviewing congressional delegations of lawmaking power).
12. Students of statutory interpretation will notice that this framework tracks the basic “technique” of statutory interpretation set forth by Henry Hart and Albert Sacks in their materials, HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1378 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).
13. Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2086 (2002).
14. Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 YALE L.J. 1750, 1771–1811 (2010) [hereinafter Gluck, Laboratories].
15. See, e.g., Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 890 n.13 (2003) (“Although the possibility [that doctrines of statutory interpretation might be legislated] is both important and interesting, past history shows that it is most unlikely that Congress will enact rules of interpretation that will generally resolve the disputed issues of interpretive choice. For good reason, the literature on statutory interpretation, both past and present, focuses on the question of what interpretive rules judges should use absent legislative intervention; that is our focus here as well.”); Colin S. Diver, Statutory Interpretation in the Administrative State, 133 U. PA. L. REV. 549, 570 (1985) (“Congress seldom provides explicit guidance, even in legislative history, on how it wishes courts to interpret statutory language.”).
16. Either as a necessary ground for methodological commitments, see Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Statutes, 32 WM. & MARY L. REV. 827, 838–39 (1991), or as defining appropriate judicial methods. Compare John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 56–70 (2001) (arguing “judicial Power” in Article III of the Constitution bars “equitable” interpretation of statutes), with William N. Eskridge, Jr., All About Words: Early Understandings of the “Judicial Power” in Statutory Interpretation, 1776–1806, 101 COLUM. L. REV. 990 (2001) (defending equitable interpretation of statutes by courts on faithful agency and historical grounds).
17. See VERMEULE, supra note 8, at 5 (arguing that interpretive approaches should be determined by those that produce the best consequences).
18. 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, 749, 775–96 (2014); Jerry L. Mashaw, The Economics of Politics and the Understanding of Public Law, 65 CHI.-KENT L. REV. 123, 152 (1989); Victoria F. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 YALE L.J. 70, 74–75 (2012).
19. See, e.g., RONALD DWORKIN, LAW’S EMPIRE 313–54 (1986) (justifying an interpretive approach to statutes based on a conception of law as integrity); HART & SACKS, supra note 12, at 148 (justifying a purposive approach to statutory interpretation on grounds that law itself is a purposive activity); SCOTT J. SHAPIRO, LEGALITY 382 (2011) (defending a purposivist approach to interpretation based on a conception of law as a type of social plan).
20. Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 COLUM. L. REV. 939, 975 (2011).
21. Skidmore v. Swift & Co., 323 U.S. 134 (1944).
22. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). Under United States v. Mead Corp., 533 U.S. 218, 234–35 (2001), if Chevron deference is not warranted, the agency’s interpretation will be reviewed under Skidmore.
23. See Merrill, supra note 20, at 941–42. “Arbitrary and capricious review” is a standard of review specified by the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A) (2012) (requiring a reviewing court to hold unlawful agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).
24. As explained below, under well-established doctrine, arbitrary and capricious review requires the agency to demonstrate a rational connection between the choices made and the statutes’ aims. See infra Part II.D (discussing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
25. See HART & SACKS, supra note 12.
26. Informed by public choice theory, critics also argue legislation is a product of compromise and so frequently lacks purposes, and that the legislative text alone provides the best guidance on the compromise the legislature reached. See John F. Manning, What Divides Textualists and Purposivists?, 106 COLUM. L. REV. 70, 99–101 (2006) [hereinafter Manning, What Divides]; see also infra Part III.B.
27. John F. Manning, The New Purposivism, 2011 SUP. CT. REV. 113 passim (articulating new purposivism reflected in Supreme Court statutory interpretation) [hereinafter Manning, New Purposivism]; see also Gluck, Laboratories, supra note 14, at 1842–46 (giving account of “modified textualism” or “structured purposivism” in state statutory interpretation); Kevin M. Stack, Interpreting Regulations, 111 MICH. L. REV. 355, 362 (2012) [hereinafter Stack, Interpreting Regulations] (defending positively grounded purposivism as the method for interpreting regulations).
28. For a concise overview of the variety of agency forms, see DAVID E. LEWIS & JENNIFER L. SELIN, ADMIN. CONFERENCE OF THE U.S., SOURCEBOOK OF UNITED STATES EXECUTIVE AGENCIES (2012).
29. See Stack, Agency Policymaking Form, supra note 9, at 226 (arguing that agency statutory interpretation is in part a function of the form through which it acts).
30. See Caleb Nelson, Statutory Interpretation and Decision Theory, 74 U. CHI. L. REV. 329, 360 (2007) (reviewing VERMEULE, supra note 8 and arguing that while it is possible to consider in general terms the capacities of the federal judiciary, agencies are more heterogeneous, and that a thoroughgoing institutional analysis would require moving beyond such general referents). Some scholars have investigated how a court’s position within the federal judiciary matters to statutory interpretation. See Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 GEO. WASH. L. REV. 317, 318 (2005) (arguing that a super strong stare decisis canon should not apply in courts of appeals); Aaron-Andrew P. Bruhl, Hierarchy and Heterogeneity: How to Read a Statute in a Lower Court, 97 CORNELL L. REV. 433, 472–79 (2012) (arguing that lower courts should heed more closely the text and largely avoid legislative history). The different modes of appointment may also have interpretive implications. See Aaron-Andrew P. Bruhl & Ethan J. Leib, Elected Judges and Statutory Interpretation, 79 U. CHI. L. REV. 1215, 1237–54 (2012).
31. One strain of this literature provides a positive account of how judges use various tools of statutory interpretation, such as canons and legislative history, and the extent to which those sources constrain them to reach outcomes that would not be predicted by their political background. See, e.g., FRANK B. CROSS, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION 160–77 (2009) (testing plain meaning and legislative history and finding legislative history more constraining); James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 VAND. L. REV. 1 (2005) (providing an account of use and relatively thin constraint imposed by substantive and linguistic canons); James J. Brudney & Corey Ditslear, Liberal Justices’ Reliance on Legislative History: Principle, Strategy, and the Scalia Effect, 29 BERKELEY J. EMP. & LAB. L. 117 (2008) (offering an empirical study of the constraining effects and strategic uses of legislative history in employment decisions); James J. Brudney & Corey Ditslear, The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law, 58 DUKE L.J. 1231 (2009) (showing distinctive use and role of legislative history in these areas).
32. See Manning, What Divides, supra note 26, at 78 (engaging the distinction); Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 2–3 (2006) (framing the statutory interpretation debate as between textualist and purposivists); see also Gluck, Laboratories, supra note 14, at 1761–62 (noting the same).
33. WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 219 (2d ed. 2006).
34. Id.; see also Caleb Nelson, What is Textualism?, 91 VA. L. REV. 347, 357–58 (2005) (invoking this distinction in comparison between textualism and its alternatives).
35. Manning, What Divides, supra note 26, at 73–75; see infra Part III.B.
36. See Manning, What Divides, supra note 26, at 73–75; see also sources cited infra Part III.B.
37. 467 U.S. 837 (1984).
38. See id. at 843–44. This speaks to a fundamental premise of Chevron: that statutes fall into two basic types: those administered by agencies and those administered by courts. See id. at 843 (“The power of an administrative agency to administer a congressionally created... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”) (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)); id. at 844 (“We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer....”). The reviewing court’s duty of deference under Chevron applies only to those statutes the agency administers. See id. at 844.
39. Id. at 843 (admonishing that when the statutory delegation is ambiguous, the reviewing court “does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation” (footnote omitted)).
40. The Chevron decision itself took the view that the reviewing court should assess the permissibility of an agency’s interpretation by “employing traditional tools of statutory construction.” Id. at 843 n.9.
41. For lively, and now canonical, exemplars, compare Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 697–98 (1995) (Stevens, J.) (consulting both text and purpose in review of agency’s decision), with id. at 717 (Scalia, J., dissenting) (arguing that legislative text clearly prohibits the agency’s interpretation); compare also MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 227–28 (1994) (Scalia, J.) (reversing agency interpretation based on textualist sources), with id. at 242 (Stevens, J., dissenting) (arguing that the Court should uphold agency interpretation in view of statutory scheme and purposes).
42. See CORNELIUS M. KERWIN & SCOTT R. FURLONG, RULEMAKING: HOW GOVERNMENT AGENCIES WRITE LAW AND MAKE POLICY 13–21 (4th ed. 2011) (documenting, in terms of the number of rules and pages of the Federal Register devoted to federal regulations, a level of production of regulations beginning in the 1970s that far exceeds comparable measures for statutes).
43. See Stack, Interpreting Regulations, supra note 27 (providing an overview of literature and a defense of purposive methodology of regulatory interpretation); Jennifer Nou, Regulatory Textualism, 64 Duke L.J. (forthcoming 2015) (providing an overview of literature and defending a textualist methodology of regulatory interpretation).
44. See Strauss, Agency Interpretation, supra note 7.
45. See id. at 329; Matthew C. Stephenson, Statutory Interpretation by Agencies, in RESEARCH HANDBOOK ON PUBLIC CHOICE AND PUBLIC LAW 285, 294–300 (Daniel A. Farber & Anne Joseph O’Connell eds., 2010) (providing a concise summary of the extent and character of congressional and presidential political influence on agencies).
46. GREENAWALT, supra note 7, at 143 (noting that agencies have more direct responsibilities to the President and Congress than courts have); ROBERT A. KATZMANN, JUDGING STATUTES 26 (2014) (“Agency responsiveness to congressional signals [in addition to] statutory text makes sense from a policy and good-governance perspective of trying to interpret and implement the law consistent with legislative meaning. It also makes sense from the perspective of practical politics.”); Frank H. Easterbrook, Judicial Discretion in Statutory Interpretation, 57 OKLA. L. REV. 1, 3 (2004) (“Everything an agency is likely to rely on—political pressure, the President’s view of happy outcomes... legislative history (including letters or tongue-lashings from members of the Congress, as well as the committee reports), and other tools of policy wonks—is off limits to textualist judges.”); Mashaw, Norms, supra note 3, at 506 (“[W]e should expect agencies to interpret statutes in the context of presidential direction.”); Strauss, Agency Interpretation, supra note 7, at 329 (observing that agencies are “concededly political”). We know that political experience influences selection and decisions of federal judges, too; scholars have just begun the project of incorporating that understanding into approaches to judicial statutory interpretation. See James J. Brudney, Recalibrating Federal Judicial Independence, 64 OHIO ST. L.J. 149, 161–66 (2003) (documenting influence of political background on judicial decisions and suggesting how those influences may call for greater candor and self-conscious judicial attitudes).
47. Easterbrook, supra note 46, at 3.
48. See KATZMANN, supra note 46, at 24–27 (describing the ways in which Congress expects agencies will follow its directives outside of those in statutory text, including the special importance of congressional committee communications in implementing their statutory powers); Stephenson, supra note 45, at 294–97 (providing a compact account of congressional vehicles for ex post influence over agency statutory interpretation).
49. See KATZMANN, supra note 46, at 26–27 (noting congressional oversight heightens the importance of committee reports to agencies interpreting statutes); Katzmann, supra note 3, at 646 (justifying use of legislative history, in part, on grounds of congressional practice); Strauss, Agency Interpretation, supra note 7, at 347–49 (explaining how the relationship between agency and congressional overseers transforms the place of legislative history in agency practice); see also Bressman & Gluck, supra note 18, at 768 (documenting that congressional staffers anticipate agencies evaluating legislative history); Christopher J. Walker, Inside Agency Statutory Interpretation, 67 STAN. L. REV. 999, 1038 (2015) (reporting that 76% of rule drafters surveyed viewed legislative history as a useful tool for interpreting statutes).
50. Strauss, Agency Interpretation, supra note 7, at 329, 346. Interestingly, Nicholas Parrillo’s recent work suggests that federal agencies’ and federal litigators’ unique capacities to marshal legislative history in arguments to the Supreme Court may have contributed to the Supreme Court’s increased reliance on legislative history in upholding agency power. See Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890–1950, 123 YALE L.J. 266, 342–51, 374 (2013).
51. Bressman & Gluck, supra note 18, at 738 fig.2; Walker, supra note 49, at 1037 (reporting that 78% of rule drafters surveyed indicated that their agencies always or often participate in technical statutory drafting, and 59% said that their agencies always or often participate in policy or substantive drafting).
52. Strauss, Agency Interpretation, supra note 7, at 347.
53. See, e.g., GREENAWALT, supra note 7, at 146–58 (explicating how role and function make agencies’ interpretive mission different from that of courts); VERMEULE, supra note 8, at 213 (arguing that agencies can apply a “richer interpretive palette” than courts); Easterbrook, supra note 46, at 3 (arguing that Article II officers’ greater political accountability entitles them to more interpretive discretion than life-tenured Article III judges); Mashaw, Norms, supra note 3, at 522–23 (providing a preliminary account of different norms of interpretation); Strauss, Agency Interpretation, supra note 7, at 328–31 (describing how the institutional position of agencies distinguishes their interpretive obligations, especially vis-à-vis legislative history, from those of judges). Not all scholars agree that agency and judicial interpretation diverge. Professor Richard Pierce, for instance, has argued that agency statutory interpretation should not differ from judicial statutory interpretation because both are essentially about discerning the meaning of statutory provisions. See Richard J. Pierce, Jr., How Agencies Should Give Meaning to the Statutes They Administer: A Response to Mashaw and Strauss, 59 ADMIN. L. REV. 197, 204–05 (2007). For a discussion of this view, see infra text accompanying notes 128–35.
54. For canons that apply to agencies, Mashaw includes: “Follow presidential directions unless clearly outside your authority.”; “Use legislative history as a primary interpretive guide.”; “Interpret to give energy and breadth to all legislative programs within your jurisdiction.”; “Engage in activist lawmaking.”; “Pay particular attention to the strategic parameters of interpretive efficiency.”; and “Interpret to insure hierarchical control over subordinates.” Mashaw, Norms, supra note 3, at 522 tbl.1.
55. For canons that apply to courts, Mashaw includes: “Interpret to avoid raising constitutional questions.”; “Respect all judicial precedent.”; and “Interpret to lend coherence to the overall legal order.” Id. Mashaw offers this list as a prompt for debate, and other scholars have bolstered and whittled away at its contents. See, e.g., Morrison, supra note 5, at 1222–26 (challenging Mashaw’s suggestion that agency actors should not apply the canon of constitutional avoidance).
56. Mashaw, Norms, supra note 3, at 521.
57. VERMEULE, supra note 8, at 33.
58. See id. at 213.
59. Id.
60. See id.
61. One possible dissenting voice is Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 340–42 (1994) (arguing on the grounds that would also apply to statutory interpretation that the President has a constitutional duty to adopt a “restrained” interpretive methodology that privileges text, original meaning, structure, and precedent).
62. See GREENAWALT, supra note 7, at 149–56; VERMEULE, supra note 8, at 208–11; Herz, supra note 8, at 96–106; Mashaw, Norms, supra note 3, at 505–16; Strauss, Agency Interpretation, supra note 7, at 329–30; see also Eskridge, Expanding Chevron’s Domain, supra note 8, at 421–27 (also arguing agencies’ institutional competences bear on their interpretive approach).
63. See infra Part III.A–B.
64. U.S. CONST. art. I, § 8, cl. 18 (granting Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”). This Clause has been interpreted to permit Congress “discretion, with respect to the means by which the powers it confers are to be carried into execution.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819).
65. See Nicholas Quinn Rosenkranz, supra note 13, at 2139–40; see also Gluck, Laboratories, supra note 14, at 1794–95; Linda D. Jellum, “Which Is to Be Master,” the Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers, 56 UCLA L. REV. 837, 882–83 (2009).
66. See Nelson, supra note 30, at 360 (suggesting that agencies’ institutional diversity impedes the prospect for generalization about agency approaches to statutory interpretation).
67. Cf. Abbe R. Gluck, The Federal Common Law of Statutory Interpretation: Erie for the Age of Statutes, 54 WM. & MARY L. REV. 753, 757 (2013) [hereinafter Gluck, Federal Common Law] (observing that if rules of statutory interpretation for courts have the status of common law then Congress can legislate over them).
68. For a narrative compilation of these delegations from the beginning of the Republic through the 1920s, see John Preston Comer’s chapter, “The History of Administrative Legislation” in COMER, supra note 1, at 50–112. For a description of current delegations, see LEWIS & SELIN, supra note 28.
69. See, e.g., JERRY L. MASHAW & DAVID L. HARFST, THE STRUGGLE FOR AUTO SAFETY (1990) (providing a classic account of the creation of the National Highway Traffic Safety Administration, legislative and judicial responses to its actions, and the agency’s resulting regulatory approach).
70. La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986).
71. The Department of the Interior provides an example of this type of statutory scheme. The Department of the Interior is “charged” with the supervision of an enumerated list of subjects and subagencies in its authorizing statute, 43 U.S.C. § 1457 (2012), but the authorization to take specific actions in carrying out its supervision is laid out in each regulated subject’s statute. See, e.g., 16 U.S.C. § 669i (2012) (referring to wildlife restoration and providing that “[t]he Secretary of the Interior is authorized to make rules and regulations for carrying out the provisions of this chapter”); id. § 777i (referring to fish restoration and management projects and providing that “[t]he Secretary of the Interior is authorized to make rules and regulations for carrying out the provisions of this chapter”).
72. See, e.g., 12 U.S.C. § 5492(a)(10) (2012) (“The [Consumer Financial Protection] Bureau is authorized to... implement[] the Federal consumer financial laws through rules, orders, guidance, interpretations, statements of policy, examinations, and enforcement actions....”); see also 6 U.S.C. § 112(b)(2) (2012) (“The Secretary [of Homeland Security]... shall have the authority to make contracts, grants, and cooperative agreements, and to enter into agreements with other executive agencies, as may be necessary and proper to carry out the Secretary’s responsibilities under this chapter....”); 7 U.S.C. § 2204(b) (2012) (“The Secretary [of Agriculture] is authorized to initiate or expand research and development efforts related to solution of... any other problem that the Secretary may determine has an effect upon the economic development or the quality of life in rural areas.”); 12 U.S.C. § 248 (2012) (providing an extensive list of functions that the Board of Governors of the Federal Reserve System “shall be authorized and empowered” to perform); 42 U.S.C. § 5842 (2012) ([T]he Nuclear Regulatory Commission shall... have licensing and related regulatory authority... as to the following facilities of the Administration....”).
73. See, e.g., 5 U.S.C. § 1103(a) (2012) (“The following functions are vested in the Director of the Office of Personnel Management....”); see also 15 U.S.C. § 1512 (2012) (“[T]o this end [the Department of Commerce] shall be vested with jurisdiction and control of the departments, bureaus, offices, and branches of the public service hereinafter specified, and with such other powers and duties as may be prescribed by law.”); 29 U.S.C. § 557 (2012) (“The following-named offices, bureaus, divisions, and branches of the public service, and all that pertains to the same, shall be under the jurisdiction and supervision of the Department of Labor....”).
74. See, e.g., 20 U.S.C. § 3474 (2012) (“The Secretary [of Education] is authorized to prescribe such rules and regulations as the Secretary determines necessary or appropriate to administer and manage the functions of the Secretary or the Department.”).
75. See, e.g., 29 U.S.C. § 651(b)(3) (2012) (authorizing the Occupational Safety and Health Review Commission to “carry[] out adjudicatory functions under this chapter”); 30 U.S.C. § 823(d)(2)(B) (2012) (“[A]fter the issuance of a decision of an administrative law judge, the [Federal Mine Safety and Health Review] Commission may in its discretion... order the case before it for review.…”).
76. See, e.g., 29 U.S.C. §§ 156, 160(b) (2012) (providing that “[t]he [National Labor Relations] Board shall have authority from time to time to make, amend, and rescind … rules and regulations as may be necessary to carry out the provisions of this subchapter” and that the National Labor Relations Board “shall have power” to issue and adjudicate complaints of unfair labor practices).
77. Some provide that agencies have the authority “to make rules and regulations for the purpose of carrying out the provisions of this subchapter.” 15 U.S.C. § 46(g) (2012) (emphasis added). Others authorize agencies to “administer the provisions of this chapter, and for such purpose the Secretary is authorized (1) to make such rules and regulations … as may be necessary in the administration of this chapter.” 33 U.S.C. § 939(a) (2012) (emphasis added), or “to make such rules and regulations as may be necessary or appropriate … for the execution of the functions vested in them by this chapter,” 15 U.S.C. § 78w(a)(1) (2012) (emphasis added), or “to make, amend, and rescind … such rules and regulations as may be necessary to carry out the provisions of this subchapter,” 29 U.S.C. § 156 (emphasis added). For other examples of “carry out” and “as may be necessary” provisions, see, for example, 7 U.S.C. § 2(a)(12) (2012), providing that “The [Commodity Trading Futures] Commission is authorized to promulgate such rules and regulations as it deems necessary to govern the operating procedures and conduct of the business of the Commission,” 12 U.S.C. § 1819(a) (2012), providing that “The [Federal Deposit Insurance] Corporation … shall have power … [t]o prescribe by its Board of Directors such rules and regulations as it may deem necessary to carry out the provisions of this chapter … .,” 20 U.S.C. § 3474, providing that “The Secretary [of Education] is authorized to prescribe such rules and regulations as the Secretary determines necessary or appropriate to administer and manage the functions of the Secretary or the Department,” 31 U.S.C. § 321(b)(1) (2012), providing that “The Secretary [of the Treasury] may … prescribe regulations to carry out the duties and powers of the Secretary … .,” and the Reorganization Plan No. 1 of 1953, § 6, 18 Fed. Reg. 2053–54 (Apr. 11, 1953), reprinted in 5 U.S.C. app. at 150 (2012), stating “The Secretary [of Health, Education, and Welfare] may from time to time make such provisions as the Secretary deems appropriate authorizing the performance of any of the functions of the Secretary by any other officer, or by any agency or employee, of the Department.”
78. See, e.g., 12 U.S.C. § 1811(a) (2012) (“[The] Federal Deposit Insurance Corporation … shall insure … the deposits of all banks and savings associations which are entitled to the benefits of insurance under this chapter, and … shall have the powers hereinafter granted.”); 15 U.S.C. § 45(a)(2) (2012) (“The [Federal Trade] Commission is hereby empowered and directed to prevent persons, partnerships, or corporations … from using unfair methods of competition in or affecting commerce … .”); 15 U.S.C. § 1512 (“It shall be the province and duty of said Department [of Commerce] to foster, promote, and develop the foreign and domestic commerce, the mining, manufacturing, and fishery industries of the United States; and to this end it shall be vested with jurisdiction and control of the departments, bureaus, offices, and branches of the public service … .”).
79. See, e.g., 6 U.S.C. § 111(b)(1) (2012) (establishing the “mission” of the Department of Homeland Security in a series of eight broad commands, including “prevent terrorist attacks within the United States”); 7 U.S.C. § 2201 (2012) (“[T]he general design and duties of [the Department of Agriculture] shall be to acquire and to diffuse among the people of the United States useful information on subjects connected with agriculture … .”); 12 U.S.C. § 5491(a) (2012) (“[T]he ‘Bureau of Consumer Financial Protection’ … shall regulate the offering and provision of consumer financial products or services under the Federal consumer financial laws.”); 31 U.S.C. § 321(a) (providing nine general functions, including “carry[ing] out services related to finances” that the Secretary of the Treasury “shall” perform); 42 U.S.C. § 901(b) (2012) (“It shall be the duty of the [Social Security] Administration to administer the old-age, survivors, and disability insurance program under subchapter II of this chapter and the supplemental security income program under subchapter XVI of this chapter.”); 47 U.S.C. § 151 (2012) (“[T]he ‘Federal Communications Commission’ … shall execute and enforce the provisions of this chapter.”); 49 U.S.C. § 301 (2012) (providing nine broad “[l]eadership, consultation, and cooperation” duties that the Secretary of Transportation “shall” complete).
80. See, e.g., 7 U.S.C. § 2204b(a) (2012) (“The Secretary of Agriculture … shall assume responsibility for coordinating, a nationwide rural development program … .”); 20 U.S.C. § 3423d(b)(3) (2012) (“The Secretary [of Education] shall ensure that limited-English-proficient and language-minority students are included in ways that are valid, reliable, and fair under all standards and assessment development conducted or funded by the Department.”); 42 U.S.C. § 241(a) (2012) (“The Secretary [of Health and Human Services] shall conduct … the [Public Health] Service … .”).
81. See, e.g., 15 U.S.C. § 78c-3(d)(1) (2012) (“The [Securities and Exchange] Commission shall prescribe rules … necessary to prevent evasions of the mandatory clearing requirements under this chapter.”); 42 U.S.C. § 7409(a)(1) (2012) (“The Administrator [of the Environmental Protection Agency] … shall publish proposed regulations prescribing a national primary ambient air quality standard … .”); 46 U.S.C. § 40901(a) (2012) (“The [Federal Maritime] Commission shall issue a license to a person that the Commission determines to be qualified by experience and character to act as an ocean transportation intermediary.”).
82. See, e.g., 7 U.S.C. § 2(h)(4)(B) (“To the extent the [Commodity Futures Trading] Commission finds that a particular swap, group, category, type, or class of swaps would otherwise be subject to mandatory clearing … the Commission shall … investigate the relevant facts and circumstances … .”); 12 U.S.C. § 252(a)(1) (2012) (“[O]nce every 60 months … the Board [of Governors of the Federal Reserve System] … shall conduct a study and submit a report to the Congress detailing the extent of small business lending by all creditors.”); 42 U.S.C. § 5847(a)(1) (2012) (“The [Nuclear Regulatory] Commission is authorized and directed to make … a national survey, which shall include consideration of each of the existing or future electric reliability regions, or other appropriate regional areas, to locate and identify possible nuclear energy center sites.”).
83. See, e.g., 15 U.S.C. § 2056a(b)(1) (2012) (“The [Consumer Product Safety] Commission shall … examine and assess the effectiveness of any voluntary consumer product safety standards for durable infant or toddler products … .”); 29 U.S.C. § 160(c) (2012) (“If upon the preponderance of the testimony taken the [National Labor Relations] Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall … issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice … .”).
84. See, e.g., 12 U.S.C. § 4513(a)(1) (2012) (“The principal duties of the Director [of the Federal Housing Finance Agency] shall be … to ensure that … each regulated entity operates in a safe and sound manner … the operations and activities of each regulated entity foster liquid, efficient, competitive, and resilient national housing finance markets … [and] the activities of each regulated entity and the manner in which such regulated entity is operated are consistent with the public interest.” (emphasis added)); 31 U.S.C. § 321(a) (“The Secretary of the Treasury shall … prescribe regulations that the Secretary considers best calculated to promote the public convenience and security, and to protect the Government and individuals from fraud and loss … .” (emphasis added)); 42 U.S.C. § 7409(a)–(b) (“The Administrator [of the Environmental Protection Agency] … shall publish proposed regulations prescribing a national primary ambient air quality standard … which … allow[] an adequate margin of safety, [and] are requisite to protect the public health.” (emphasis added)).
85. See, e.g., 6 U.S.C. § 111(b)(1) (2012) (stating that the “primary mission of the Department [of Homeland Security]” is to accomplish eight objectives, including “prevent terrorist attacks within the United States”); 12 U.S.C. § 248(a)(2) (2012) (providing that the Federal Reserve Board’s “responsibility [is] to monitor and control monetary and credit aggregates”).
86. See, e.g., 7 U.S.C. § 2201 (2012) (“There shall be … a Department of Agriculture, the general design and duties of which shall be to acquire and to diffuse among the people of the United States useful information on subjects connected with agriculture, rural development, aquaculture, and human nutrition, in the most general and comprehensive sense of those terms, and to procure, propagate, and distribute among the people new and valuable seeds and plants.”); 15 U.S.C. § 1512 (2012) (“It shall be the province and duty of said Department [of Commerce] to foster, promote, and develop the foreign and domestic commerce, the mining, manufacturing, and fishery industries of the United States … .”); 29 U.S.C. § 551 (2012) (“The purpose of the Department of Labor shall be to foster, promote, and develop the welfare of the wage earners of the United States, to improve their working conditions, and to advance their opportunities for profitable employment.”); 49 U.S.C. § 101(b) (2012) (“A Department of Transportation is necessary in the public interest … to … ensure the coordinated and effective administration of the transportation programs of the United States Government” in addition to five other general aims of the agency.”).
87. See, e.g., 15 U.S.C. § 631(a) (2012) (referring to the Small Business Administration and stating that “[i]t is the declared policy of the Congress that the Government should aid, counsel, assist, and protect, insofar as is possible, the interests of small-business concerns”); 15 U.S.C. § 2051 (2012) (listing the “Congressional findings” related to the area regulated by the Consumer Product Safety Commission and providing that “[t]he purposes of this chapter are … to protect the public against unreasonable risks of injury associated with consumer products” in addition to three other purposes); 20 U.S.C. § 3402 (2012) (stating that “[t]he Congress declares that the establishment of a Department of Education is in the public interest” and listing seven “purposes of this chapter”); 29 U.S.C. § 151 (2012) (referring to the National Labor Relations Board and providing that “[i]t is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce … by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association [and] self-organization … .”).
88. See, e.g., 41 U.S.C. § 1101(b) (2012) (“The purposes of the Office of Federal Procurement Policy [within the Office of Management and Budget] are to … provide overall direction of Government-wide procurement policies, regulations, procedures, and forms for executive agencies … .”); 42 U.S.C. § 241(a) (2012) (“The Secretary [of Health and Human Services] shall conduct in the [Public Health] Service … research … relating to the causes, diagnosis, treatment, control, and prevention of physical and mental diseases and impairments of man, including water purification, sewage treatment, and pollution of lakes and streams.”); id. § 5843(b) (“[T]he Director of Nuclear Reactor Regulation shall perform such functions as the Commission shall delegate including … monitoring, testing and recommending upgrading of systems designed to prevent substantial health or safety hazards … .”).
89. See, e.g., 15 U.S.C. §§ 2051(b), 2053(f)(2) (laying out the “purposes of this chapter” relating to the Consumer Product Safety Commission and providing that “[i]n carrying out any of his functions … the Chairman shall be governed by general policies of the Commission”); see also 12 U.S.C. §§ 1811(a), 1830 (2012) (providing that the “Federal Deposit Insurance Corporation … shall insure … the deposits of all banks and savings associations which are entitled to the benefits of insurance under this chapter” and that “[i]t is the purpose of this chapter to provide all banks and savings associations with the same opportunity to obtain and enjoy the benefits of this chapter”); 20 U.S.C. §§ 3402, 3411 (providing a congressional statement of purpose and stating that “[t]he Department [of Education] shall be administered, in accordance with the provisions of this chapter”).
90. See, e.g., 15 U.S.C. § 1512 (providing that the “province and duty” of the Department of Commerce is “to foster, promote, and develop” certain subject areas); see also 7 U.S.C. § 2201 (describing the Department of Agriculture’s “general design and duties”); 15 U.S.C. § 631a (2012) (providing congressional declarations of purpose and stating that agencies of the federal government including the Small Business Administration “shall use all reasonable means” to carry them out); 47 U.S.C. § 151 (2012) (describing the “purposes” for which the Federal Communications Commission is created and providing that the Commission “shall execute and enforce the provisions of this chapter”).
91. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (quoting J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)).
92. The Supreme Court has not declared a statute in express violation of the nondelgation doctrine since 1935. See Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. CAL. L. REV. 405, 418 (2008) [hereinafter Lemos, The Other Delegate]; Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 315 (2000).
93. 42 U.S.C. § 7409(b)(1) (2012); see also Whitman, 531 U.S. at 474–76 (upholding this delegation to the EPA).
94. 47 U.S.C. § 303 (2012); see also NBC v. United States, 319 U.S. 190, 217–18 (1943) (upholding this delegation to the FCC).
95. See Mistretta v. United States, 488 U.S. 361, 372 (1989) (“So long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.’” (alteration in original) (quoting Hampton, 276 U.S. at 409)).
96. See Kolender v. Lawson, 461 U.S. 352, 357 (1983) (requiring that penal statutes be drafted “with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement”).
97. Margaret Lemos has provocatively argued that once we recognize the lawmaking inherent in most statutory interpretation, there should be a nondelegation doctrine for statutes administered by courts. See Lemos, The Other Delegate, supra note 92, at 408, 422, 435–43 (arguing that delegations to courts are just as much a concern as delegations to agencies).
98. 49 U.S.C. § 30102(a)(8) (2012).
99. 12 U.S.C. § 5531(a) (2012).
100. Implementation of the Commercial Advertisement Loudness Mitigation (CALM) Act, 77 Fed. Reg. 40,276, 40,276 (July 9, 2012) (codified at 47 C.F.R. pts. 73, 76).
101. See id. at 40,280–81.
102. Id. at 40,280 (footnotes omitted).
103. Spinner v. David Landau & Assocs., 33 Individual Emp. Rts. Cases (BNA) 1755, at 2 (Dep’t. of Labor May 31, 2012).
104. Sarbanes–Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (codified in scattered sections of the U.S. Code).
105. Spinner, 33 Individual Emp. Rts. Cases (BNA) at 3–4. Section 806 provides in relevant part:WHISTLEBLOWER PROTECTION FOR EMPLOYEES OF PUBLICALLY TRADED COMPANIES.—No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 … or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 … or any officer, employee, contractor, subcontractor, or agent of such company … may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee … [such as providing information about violations of the securities laws]. 18 U.S.C. § 1514A(a) (2012) (emphasis added).
106. Spinner, 33 Individual Emp. Rts. Cases (BNA) at 16.
107. The Board reasoned that the narrower reading would limit the prohibition on retaliation to the class of contractors and subcontractors who had the power to reinstate employees of the public companies, a highly implausible restriction. See id. at 7.
108. Id. at 8–9.
109. Id. at 10.
110. Id. at 13.
111. Id. at 14.
112. See id. at 9 (discussing Sarbanes–Oxley Act of 2002, Pub. L. No. 107-204, § 806, 116 Stat. 745, 802).
113. In Professor Christopher Walker’s recent empirical study of agency rule drafters, building on Abbe Gluck and Lisa Bressman’s study of congressional staffers, see infra notes 136, 140, he asked 128 rule drafters whether they considered their approach to be “strong purposivist” (3%), “moderate purposivist” (19%), “moderate textualist” (35%), or “strong textualist” (15%), with their response percentages indicated in parenthesis. See Walker, supra note 49, at 1017. While this is useful in understanding rule drafter’s interpretive self-identifications, without definitions of these various positions as part of the survey prompt, the results do not contradict the claim here that purposive interpretation is a ubiquitous feature of agency practice. Moreover, given that the conception of purposivism identified here requires that the agency abide by the statutory text, all the responses other than perhaps “strong textualist” could be conveying adherence to a purposivist approach, especially in view of other findings of the study showing that (1) 76% concluded legislative history is a “useful tool for interpreting statutes,” id. at 1038, and (2) 93% identified the purpose of legislative history as “explain[ing] the purpose of the statute,” id. at 1040.
114. 5 U.S. (1 Cranch) 137, 166 (1803).
115. Peter L. Strauss, Presidential Rulemaking, 72 CHI.-KENT L. REV. 965, 977 (1997).
116. See, e.g., Administrative Procedure Act (APA), 5 U.S.C. § 702 (2012) (granting persons adversely affected by administrative action judicial review thereof); Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (stating that APA § 702 creates a presumption of reviewability). The APA’s exclusion of judicial review for actions that are “committed to agency discretion by law,” § 701(a)(2), does not undermine this conclusion. That exception only applies “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply,’” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), or in which there is “no meaningful standard against which to judge the agency’s exercise of discretion,” Heckler v. Chaney, 470 U.S. 821, 830 (1985). What that leaves available for review is the vast swath of administrative action where there is some intelligible standard against which to judge the agency’s action.
117. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
118. Id. at 34.
119. Id. at 33. (quoting 15 U.S.C. § 1381 (1976) (repealed 1994)).
120. Id. at 48.
121. Id.
122. Id.
123. See Gillian E. Metzger, Foreword: Embracing Administrative Common Law, 80 GEO. WASH. L. REV. 1293, 1312 (2012) (arguing that arbitrariness review as interpreted by the courts is a form of administrative common law and itself “resembles forms of purposivism that read statutes with an eye to achieving some quite generalized policy goals”).
124. Interestingly, Congress has also imposed crosscutting analysis duties on agencies that augment their express goal setting. See Government Performance and Results Modernization Act of 2010, Pub. L. No. 111-352, 124 Stat. 3866 (2011) (codified in scattered sections of the U.S. Code) (imposing a cluster of requirements that the agency develop mission statements, general goals and objectives, and performance plans that relate agency activities to its stated goals).
125. See Stack, Interpreting Regulations, supra note 27, at 384–88 (providing an account of Hart & Sacks’s interpretive technique).
126. GREENAWALT, supra note 7, at 167.
127. See id. at 168 (noting that what may be reasonable under one interpretation may not be reasonable under another). Professor Mashaw points out that implementation is an “instrumentally rational exercise” in which the agency must determine its goals as well as the constraints that have been placed on its development and implementation of policy. Jerry L. Mashaw, Agency-Centered or Court-Centered Administrative Law? A Dialogue with Richard Pierce on Agency Statutory Interpretation, 59 ADMIN. L. REV. 889, 898 (2007). Those questions are “saturated with interpretive issues,” and more generally, “[t]he notion that policy choice is not interpretive simply ignores many of the necessary mental operations involved in administrative implementation.” Id. Interpretation is called for in judging the reasonable.
128. See Pierce, supra note 53, at 199–200.
129. Id. at 199.
130. Id. at 200.
131. Id. In a similar vein, Elizabeth Foote argues that the Chevron framework mistakenly treats administrative action as statutory construction, suggestive of judicial-style methodologies for affixing meaning to a statutory text, as opposed to reviewing agency action for whether it was a sound or nonarbitrary exercise of administrative power. Foote argues that categorizing agency action as primarily a matter of statutory construction ignores the distinctive influences, from political pressures to the extensive reliance on experts, which shape the agency’s decisionmaking process. See Elizabeth V. Foote, Statutory Interpretation or Public Administration: How Chevron Misconceives the Function of Agencies and Why It Matters, 59 ADMIN. L. REV. 673, 691–703 (2007); see also Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking under Chevron, 6 ADMIN. L.J. AM. U. 187, 190–99 (1992) (arguing that Chevron commands deference to agency lawmaking, not agency interpretation, and that when an agency acts pursuant to a delegation of lawmaking power, interpretation is “merely to define the boundaries of the zone of indeterminacy” for the agency). One could agree with the analysis that too much agency action is reviewed through the lens of judicial tools of statutory construction without taking the further position that implementation is not interpretive. In other words, one could embrace the general critique that too much of what agencies do is understood by courts to be analogous to (and perhaps a poor exemplar of) judicial construction of statutes without denying the point that implementation involves interpretive choices at many turns.
132. See Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts, 119 HARV. L. REV. 1035, 1039–49 (2006) (providing an overview of the choice to delegate to agencies or courts).
133. See DAVID E. LEWIS, PRESIDENTS AND THE POLITICS OF AGENCY DESIGN: POLITICAL INSULATION IN THE UNITED STATES GOVERNMENT BUREAUCRACY, 1946–1997, at 3–16 (2003) (providing an overview of literature on the politics of agency design).
134. See Kent Barnett, Codifying Chevmore, 90 N.Y.U. L. REV. 1, 6 (2015).
135. Interestingly, in the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress codified a version of the Skidmore standard of judicial review. See 12 U.S.C. § 25b(b)(5)(A) (2012) (specifying a standard, largely tracking Skidmore’s, for review of the OCC’s preemption determinations); see Barnett, supra note 134, at 26–33.
136. 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, 928–29 (2013).
137. Id. at 941.
138. See Bressman & Gluck, supra note 18, at 769–70.
139. Id. at 769.
140. Id. at 770. Congressional staffers “made no distinction, as some scholars have, between agency statutory ‘implementation’ and agency statutory ‘interpretation.’” Id. at 765.
141. See Jeffrey A. Pojanowski, Private Law in the Gaps, 82 FORDHAM L. REV. 1689, 1741–42 (2014) (“Legal process theorists aspire to match decisionmaking authority with competence in defining the procedures due for resolving particular questions.”).
142. See HART & SACKS, supra note 12.
143. Manning, What Divides, supra note 26, at 86.
144. See, e.g., id. at 86–87 (using Hart and Sacks’s work as the “main point of departure” for his own work).
145. HART & SACKS, supra note 12, at 1374.
146. See Stack, Interpreting Regulations, supra note 27, at 384–88 (offering an account of Hart & Sacks’s interpretive technique).
147. HART & SACKS, supra note 12, at 1125.
148. Id. at 1378.
149. Manning, What Divides, supra note 26, at 102; see also Nourse, supra note 18, at 81–85.
150. See Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 CASE W. RES. L. REV. 179, 193 (1986).
151. See Stack, Interpreting Regulations, supra note 27, at 384–88. In Interpreting Regulations, I argue that agency regulations should be interpreted in light of their statements of basis and purpose, which form the bulk of the regulations’ preambles. I argue that correcting this misreading of Hart and Sacks exposes how this approach draws upon their reliance on enacted statements of purpose in interpreting statutes. Id.
152. HART & SACKS, supra note 12, at 1377.
153. Id.
154. See id.
155. Herz, supra note 8, at 96–98.
156. Id. at 97.
157. Id.
158. Id.
159. As Jerry Mashaw observes, it “is precisely [agencies’] job as agents of past congresses and sitting politicians to synthesize the past with the present.” Mashaw, Norms, supra note 3, at 513. See also Edward Rubin, Dynamic Statutory Interpretation in the Administrative State, ISSUES IN LEGAL SCHOLARSHIP, Nov. 2002, art. 2, http://www.degruyter.com/view/j/ils.2002.2.issue-2/ils.2002.2.2.1021/ils.2002.2.2.1021.xml [http://perma.cc/EE5E-2KYC] (arguing that the point of delegating to an agency is to invite them to mediate between past legal language and present concerns).
160. Herz, supra note 8, at 97–98.
161. See Diver, supra note 15, at 583–85 (“Whether one takes a democratic or technocratic view of social policymaking, administrative agencies, with their greater political accountability and research tools, seem to be more appropriate vehicles for making [the value choices inherent in interpretation].”); Eskridge, Expanding Chevron’s Domain, supra note 8, at 423–26 (noting that agencies are more competent to make political decisions than courts in view of their greater political accountability).
162. HART & SACKS, supra note 12, at 1312.
163. Cf. Lemos, The Other Delegate, supra note 92, at 434–43 (suggesting that despite widespread acknowledgment that courts engage in some policymaking when interpreting statutes, judicial doctrines do not police the scope of delegation of these lawmakings to courts as such).
164. See 5 U.S.C. § 553 (2012).
165. See Michael Abramowicz & Thomas B. Colby, Notice-and-Comment Judicial Decisionmaking, 76 U. CHI. L. REV. 965, 967–69 (2009) (noting absence of opportunity for public comment on judicial decisions before issuance in the federal courts, and arguing that the case for notice-and-comment in the judiciary is just as strong in many respects as it is for administrative agencies); see also Richard A. Bierschbach & Stephanos Bibas, Notice-and-Comment Sentencing, 97 MINN. L. REV. 1, 5 (2012) (arguing that notice-and-comment provides a fruitful analogy for enhancing participation in sentencing as well as for informing prosecutors’ charge and plea bargain decisionmaking).
166. See HART & SACKS, supra note 12, at 1375 (describing “The Double Role of the Words as Guides to Interpretation”).
167. Id. at 1377.
168. Id. at 1375.
169. Id. at 1378.
170. Id. at 1191.
171. See Stack, Interpreting Regulations, supra note 27, at 386–87 (describing role of text for Hart and Sacks); Manning, New Purposivism, supra note 27, at 148 (defending the consistency of textually structured purposivism within the Legal Process tradition, especially in view of its commitment to the principle of institutional settlement).
172. Herz, supra note 8, at 105.
173. Id. at 104 (emphasis removed); see, e.g., North Carolina v. EPA, 531 F.3d 896, 906–11 (D.C. Cir. 2008).
174. See Cass R. Sunstein, Commentary, The Office of Information and Regulatory Affairs: Myths and Realities, 126 HARV. L. REV. 1838, 1871–72 (2013) (noting that OIRA is part of the White House, and that it seeks a wide variety of expert analysis from within the Executive Branch in conducting regulatory review).
175. See Walker, supra note 49, at 1019 fig.1 (reporting survey results showing agency rule drafters’ knowledge of norms of textual analysis).
176. I offer an account of the conditions under which an executive order is binding in Kevin M. Stack, The President’s Statutory Powers to Administer the Laws, 106 COLUM. L. REV. 263, 312–16 (2006) [hereinafter Stack, Statutory Powers].
177. HART & SACKS, supra note 12, at 4.
178. See Sunstein, supra note 174, at 1872 (noting OIRA’s legal review of agency statutory constructions).
179. HART & SACKS, supra note 12, at 1374.
180. Id. at 1376–77.
181. Id. at 1377.
182. Id.; see Ernest A. Young, The Continuity of Statutory and Constitutional Interpretation: An Essay for Phil Frickey, 98 CALIF. L. REV. 1371, 1383–86 (2010) (describing the role of background constitutional norms for legal process thinkers).
183. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (2d ed. 1986).
184. Id. at 27.
185. See id. at 26–27.
186. See Jeffrey A. Pojanowski, Reason and Reasonableness in Review of Agency Decisions, 104 NW. U. L. REV. 799, 833 (2010) (arguing that “[a]gencies are less likely than courts … to be concerned [with] careful application of common law”).
187. For a helpful exploration of the challenges and capacities of agencies to engage in constitutional implementation, see Gillian E. Metzger, Administrative Constitutionalism, 91 TEX. L. REV. 1897 (2013) [hereinafter Metzger, Administrative Constitutionalism]. For nuanced case studies of agency practices implementing the Constitution, see, for example, Sophia Z. Lee, Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present, 96 VA. L. REV. 799 (2010), which explores ways in which the NLRB and FCC interpreted the Constitution in ways that extend beyond judicial doctrines, and Jeremy K. Kessler, The Administrative Origins of Modern Civil Liberties Law, 114 COLUM. L. REV. 1083 (2014), which excavates the civil-libertarian rights enforcement in the War Department.
188. See Lee, supra note 187, at 886 (noting that an agency’s interpretation of the Constitution is an ineluctable feature of an agency’s exercise of its constitutional powers).
189. Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 COLUM. L. REV. 479, 522 (2010).
190. See Trevor W. Morrison, Constitutional Alarmism, 124 HARV. L. REV. 1688, 1709–21 (2011) (reviewing BRUCE ACKERMAN, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC (2010) and providing an overview and defense of the Office of Legal Counsel’s capacity for independent legal advice, including on constitutional questions).
191. Metzger, Administrative Constitutionalism, supra note 187, at 1922–23.
192. Kenneth A. Bamberger, Normative Canons in the Review of Administrative Policymaking, 118 YALE L.J. 64, 96–97 (2008).
193. See id.
194. See Metzger, Administrative Constitutionalism, supra note 187, at 1928–29 (comparing agencies’ constant interaction with public and political entities with the courts’ “often attenuated and episodic” interactions); see also WILLIAM N. ESKRIDGE JR. & JOHN FEREJOHN, A REPUBLIC OF STATUTES: THE NEW AMERICAN CONSTITUTION 12–18 (2010) (highlighting public and political interactions with agencies as a virtue for administrative implementation of constitutional values).
195. See Bamberger, supra note 192, at 99–100.
196. Id. at 98–99.
197. Kevin M. Stack, The Constitutional Foundation of Chenery, 116 YALE L.J. 952, 993–96 (2007).
198. Frank H. Easterbrook, Statutes’ Domains, 50 U. CHI. L. REV. 533, 547–48 (1983) (noting that it is difficult “to aggregate [individual [legislators’ views] into a coherent collective choice”); John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2410–13 (2003) (exploring the issue in terms of interest group theory and social choice theory). See generally Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12 INT’L REV. L. & ECON. 239 (1992) (describing legislative intent as “meaningless”).
199. See Manning, What Divides, supra note 26, at 81.
200. See id. at 78; Nelson, supra note 34, at 371.
201. Manning, What Divides, supra note 26, at 99.
202. Id. at 104.
203. Id. at 105.
204. I have previously argued that the generality problem loses force in interpretation of regulations. See Stack, Interpreting Regulations, supra note 27, at 405–06.
205. See supra text accompanying notes 91–97.
206. See generally Rosenkranz, supra note 13.
207. Id. at 2140. See generally Gluck, Federal Common Law, supra note 67, at 804–11 (examining implications of viewing federal rules of statutory interpretation as federal common law).
208. See Rosenkranz, supra note 13, at 2140 (analyzing the legal status of principles of interpretation).
209. See Jellum, supra note 65, at 882–90; see also Jonathan T. Molot, Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power over Statutory Interpretation, 96 NW. U. L. REV. 1239, 1246 (2002).
210. U.S. CONST. art. I, § 8, cl. 18.
211. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819). The statutes set out in the notes in Part II.A provide nice illustrations. See supra notes 90–94.
212. City of Arlington v. FCC, 133 S. Ct. 1863, 1869 (2013).
213. One might also argue on functionalist grounds that the interpretation of federal law is not core to the constitutionally prescribed powers of the Executive Branch to the same extent that it is for the judiciary. If that is correct—and part of my overriding point is that executive branch interpretation is pervasive and unavoidable, so it is not a premise friendly to this underlying approach—then the stakes of congressional prescription of interpretive rules for the Executive Branch does not pose the same constitutional objections as it does for the judiciary. More generally, in view of the well-established power of Congress to structure the execution of the federal law, Congress has substantial authority to prescribe the interpretive approach that agencies pursue in the execution of federal law, outside of those principles of statutory interpretation that might be required by the Constitution.
214. Early administrative law typically did not police the agent’s exercise of discretion. See Nicholas Bagley, The Puzzling Presumption of Reviewability, 127 HARV. L. REV. 1285, 1295–1301 (2014); Merrill, supra note 20, at 1001.
215. See Lisa Schultz Bressman, Deference and Democracy, 75 GEO. WASH. L. REV. 761, 764 (2007) (exploring ways in which different paradigms of public administration correspond to, and help define, approaches to judicial review).
216. See, e.g., Sidney Shapiro & Elizabeth Fisher, Chevron and the Legitimacy of “Expert” Public Administration, 22 WM. & MARY BILL RTS. J. 465, 476–95 (2013) (exploring roles of rational–instrumental and deliberative–constitutive understandings of public administration in the Chevron canon).
217. See 5 U.S.C. § 706(2)(A)–(C) (2012) (noting these elements of review among others).
218. As a point of comparison, the Chevron doctrine has a strained relationship with the text of § 706: that section requires the reviewing court to “decide all relevant questions of law,” which Chevron can be read as defying. See Metzger, supra note 123, at 1300–02 (quoting § 706 and noting tension between Chevron and the APA’s requirements, and suggesting Chevron’s status as administrative common law); John F. Duffy, Administrative Common Law in Judicial Review, 77 TEX. L. REV. 113, 193–99 (1998). In contrast, as noted above, the basic inquiry into whether the agency’s action furthers the statute’s purposes within permitted means fits comfortably with the text of § 706. A court cannot judge whether the agency’s action is arbitrary or capricious under § 706(2)(A) without an understanding of the basic aims of the statute and whether the agency’s actions in fact further those aims. Likewise, asking whether the agency’s action is permitted by the statute would appear to be required by the command in § 706(2)(C) that a reviewing court declare unlawful any agency action “in excess of statutory jurisdiction, authority, or limitations.” § 706(2)(C).
219. See supra text accompanying note 38 (describing the Chevron doctrine).
220. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
221. See id.
222. See Mashaw, Norms, supra note 3, at 537–38.
223. This provides a statutory grounding for Judge Katzmann’s position that courts should understand “the methodology of agency interpretation of statutes.” KATZMANN, supra note 46, at 27.
224. Stephenson, supra note 45, at 300–01.
225. See LEWIS, supra note 133, at 4.
226. See id. at 23.
227. Nina A. Mendelson, Disclosing “Political” Oversight of Agency Decision Making, 108 MICH. L. REV. 1127, 1141 (2010).
228. Kathryn A. Watts, Proposing a Place for Politics in Arbitrary and Capricious Review, 119 YALE L.J. 2, 56 (2009).
229. See Dalton v. Specter, 511 U.S. 462, 476 (1994) (noting that the Defense Base Closure and Realignment Act of 1990, Pub. L. 101-510, § 2903(e), 104 Stat. 1808, 1812 (1990), codified at 10 U.S.C. § 2687 note (2012), “does not at all limit the President’s discretion” to accept or reject the Commission’s recommendation).
230. Mendelson, supra note 229, at 1176.
231. For an overview, see Nina A. Mendelson, Another Word on the President’s Statutory Authority over Agency Action, 79 FORDHAM L. REV. 2455 (2011), Stack, Statutory Powers, supra note 176, at 274, and Peter L. Strauss, Foreword: Overseer, or “the Decider”? The President in Administrative Law, 75 GEO. WASH. L. REV. 696 (2007) [hereinafter Strauss, Overseer].
232. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 492 (2010) (declaring dual layer of for-cause protection an unconstitutional infringement on the President’s executive power).
233. As Peter Strauss emphasizes with all caps to capture his intonation, “DISCRETION!” See Strauss, Overseer, supra note 233, at 708–09.
234. See Manning, New Purposivism, supra note 27.
235. See Gluck, Laboratories, supra note 14, at 1842–43.
236. Stack, Interpreting Regulations, supra note 27, at 409.
237. Manning, New Purposivism, supra note 27, at 121–23.
238. Id. at 146.
239. See id. at 132–37 (discussing Justice Kagan’s opinion of the Court in Milner v. Dep’t of the Navy, 131 S. Ct. 1259 (2011)).
240. See id. at 137–41 (discussing Justice Kagan’s opinion of the Court in Fox v. Vice, 131 S. Ct. 2205 (2011)).
241. See id. at 146.
242. Gluck, Laboratories, supra note 14, at 1829–32 (summarizing the components of modified textualism, which she documents in state courts).
243. See id. at 1842–43.
244. See Stack, Interpreting Regulations, supra note 27, at 409.
245. For two arguments for the roots of this strain in Hart and Sacks, see Manning, New Purposivism, supra note 27, at 148–80, and Stack, Interpreting Regulations, supra note 27, at 389–90.
246. HART & SACKS, supra note 12, at 1375.
247. HART & SACKS, supra note 12, at 4; Manning, New Purposivism, supra note 27, at 154; Stack, Interpreting Regulations, supra note 27, at 389; see also supra text accompanying note 177 (discussing the principle).
248. Interestingly, this approach also has the potential to influence the interpretation of regulatory legislation in a public-regarding way. Jonathan Macey argued in a celebrated article that the articulated purposes of statutes, even of special interest statutes, almost always have a public-regarding gloss. See Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 251 (1986). The primary reason is that it is less costly to interest groups to obtain passage of special interest legislation with such a public-regarding gloss. See id.; see also SUSAN ROSE-ACKERMAN, RETHINKING THE PROGRESSIVE AGENDA: THE REFORM OF THE AMERICAN REGULATORY STATE 44–56 (1992) (arguing for judicial enforcement of the requirement that legislation states purposes). The conclusions of this Article have obvious relevance for their line of thought. If (1) regulatory statutes should be understood as having enacted purposes and (2) agencies are viewed as obliged to pursue those purposes, as argued above, then agencies will be obliged to interpret them in accordance with their purposes. Doing so—reading statutes in light of their articulated purposes—is likely to lead agencies to implement them in more public-regarding ways. Agency purposivism thus not only clarifies the character of an agency’s duty under statute, but also holds promise for combating one of the oldest problems of our Republic, the influence of faction.
249. Leslie Green, The Concept of Law Revisited, 94 MICH. L. REV. 1687, 1715 (1996) (“Everyone admits that the theories arrive late … .”).