These days, one typically associates “intent skepticism” with the new textualism that began to press for judicial acceptance near the end of the twentieth century.
Because of the modern legislature’s complexity and the path dependence of its work, any such multimember lawmaking body will lack collective intent on any question worth worrying about. Hence, say the textualists, trying to cull legislative “intent” or “purpose” from snippets of legislative history invites the interpreter on a “wild-goose chase.”
It is by now familiar that, for the textualist, this premise suggests that the best the interpreter can do is to ask how a reasonable person would read the text.
The truth is, however, that intent skepticism also underlies most of textualism’s competitors. Theories as diverse as legal realism,
all build out from the idea that interpreters cannot reasonably expect to identify what “Congress” actually decided about the litigated issue in hard cases. Likewise, the dominant philosophy of the post–New Deal state—the Legal Process purposivism that the new textualism has sought to replace—adopts intent skepticism.
Only the prescription differs: Since a legislature lacks specific intentions on the questions that trouble interpreters, judges should indulge the normatively attractive presumption that “the legislature was made up of reasonable persons pursuing reasonable purposes reasonably.”
The widespread acceptance of intent skepticism presents a difficult question for statutory interpretation theory: If leading theories such as textualism or purposivism cannot be justified as superior ways to identify some actual legislative intent or decision about the question at issue, how does each approach reflect the appropriate roles and functions of the diverse branches of government in a constitutional democracy such as ours?
Against a backdrop of intent skepticism, the concept of “legislative intent” is a metaphor that invites interpreters to think about how to attribute a decision to a complex, multiparty body that does not have a mental state.
This task requires making normative judgments about the nature of legislative power and the role of the courts in our system of government.
Textualists, for example, believe that focusing on semantic cues—the way a reasonable person would read the text—enables legislators to use their words to draw effective lines of legislative compromise that specify both the means and the ends of legislation.
That theory reflects a conception of legislative power that places a premium on facilitating legislative compromise.
Legal Process purposivists, in contrast, contend that because Congress enacts laws to make policy, legislative supremacy is better served by emphasizing policy cues from a statute’s structure, context, and history.
They doubt that focusing on every word or semicolon in a statute will somehow advance Congress’s constitutional function.
Neither approach claims to find what Congress subjectively decided in any given case. Each tries to construct legislative outcomes in a way that advances its own theory of legislative supremacy.
Whatever one might think of the particular positions taken in these debates, the emergence of intent skepticism shifted the questions about interpretation away from debates about how best to find an unfindable legislative “intent” and toward a frank examination of our legal system’s structural and institutional commitments. This shift in emphasis has permeated questions large and small. In important work defending the Legal Process tradition against the new textualism, our honoree Peter Strauss offers two particularly crisp examples of this institutional approach. First, Professor Strauss urges interpreters to consult legislative history, but not because it can reveal what Congress actually intended on the difficult issues that present themselves to courts or agencies.
Instead, he reasons that if statutory indeterminacy leaves interpretive discretion, a court shows greater respect for the legislature by considering how legislative actors analyzed the problem at hand, especially when the alternative is the exercise of unguided judicial discretion about how best to fill in the blanks.
Second, in the never-ending debate about judicial deference to agency interpretations of law, Professor Strauss again eschews any reference to actual legislative intent.
Since most regulatory statutes do not specify when or how much courts should defer to agencies, Professor Strauss believes that judges should exercise case-by-case common law discretion to determine when it makes sense to give an agency what he calls “Chevron space.”
Though I differ with Professor Strauss on important particulars in both instances,
his approach shows how a starting point of intent skepticism casts focus on the constitutional and institutional stakes of competing interpretive frameworks.
Until recently, I thought it obvious that fighting it out on those terms was more desirable than taking on the seemingly fruitless task of asking whether one interpretive method or another better captures Congress’s true “intent.” Recent empirical scholarship, however, has raised questions about that assumption by surveying the subjective understandings of the congressional staff who participate in real, live legislative drafting.
The most extensive of the studies—by Professors Abbe Gluck and Lisa Bressman—samples 137 legislative drafters about their attitudes toward such diverse issues as the use of dictionaries, the semantic canons, the legislative history, and the cluster of practices governing the availability and implementation of the Chevron doctrine.
Gluck and Bressman’s findings suggest, for example, that staff regard committee reports as at least as important as the statutory text in framing legislative understanding of a bill.
Of further interest, staff deem multiple factors relevant to when they want Chevron to apply—a conclusion, the authors say, that supports the subsequent refinements of the “Mead doctrine” and its more nuanced approach to the question of when Congress wants reviewing courts to defer to agency interpretations of law.
This Essay argues that the new empiricism does not undermine the intent skepticism that has framed so much of the discussion about how to read statutes. Despite what we have learned from the new studies, large—and, in my view, decisive—indeterminacy remains as the baseline for an essentially normative statutory interpretation debate. Put to one side the question whether one should equate the staff’s understandings with those of Congress itself.
Even if one takes the studies on their own terms, they clarify but do not alter the inescapably normative character of the interpretation debate. To say, for example, that legislators are more apt to consult a committee report than a bill to learn what they are voting for cannot tell us what legal significance to attach to the additional fact that those legislators choose to vote instead for the dry, technical, opaque statutory text that, the survey suggests, may not reliably capture the original deal.
No one can identify “congressional intent” or the “legislative deal” as a matter of fact, unfiltered by normative, institutional considerations that tell interpreters what should count as such. The survey also leaves intact the largely institutional debate about appropriate judicial deference in administrative law. The staff survey suggests that staffers find lots of factors—ambiguity, agency lawmaking procedures, the importance of the interpretive question, and the like—relevant to their intention to embrace judicial deference to agency interpretations of statutes.
Given the multiplicity of unweighted factors that staffers deemed relevant, it seems appropriate to retain a healthy skepticism about whether the Court can reconstruct, in any case, a genuine legislative “intent” about when to delegate binding interpretive authority to an agency, and how much.
This Essay will defend the proposition that, despite the impressiveness of the new empirical learning, theories of statutory interpretation should continue to build on the intent skepticism that has long defined so many of the leading approaches. Part I catalogues the pervasiveness of intent skepticism in diverse theories of statutory interpretation, from the new textualism to the Legal Process school. Drawing on Professor Strauss’s work, it then uses the examples of legislative history and judicial deference to agency interpretations of law to illustrate the institutional approach that flows from such skepticism. Turning to the new empiricism, Part II argues that the results of the survey leave intact the basic questions of legislative supremacy and judicial power on which the earlier debates pivoted.
I. The Intent Skepticism Baseline
This Part has two objectives: The first is to identify the pervasiveness of intent skepticism as the starting point for reasoning about statutory interpretation across a range of different approaches—textualism, realism, pragmatism, Dworkinian constructivism, and even Legal Process purposivism. Quoting extensively from the most influential of the intent skeptics, section I.A outlines the standard descriptive and conceptual objections to aggregating any form of genuine legislative intent. Written from a diverse array of perspectives, the quoted passages reflect recurring questions about whether a complex, path-dependent, multimember legislative process produces a discernible intent on the hard interpretive questions that make their way to litigation. More fundamentally, these passages point out the deep conceptual difficulties in even settling on what should count as Congress’s intent.
Section I.B pursues a related goal—namely, to use debates between textualism and Legal Process purposivism to illustrate the kind of institutional reasoning that has emerged against the backdrop of intent skepticism. When Legal Process proponents (such as Professor Strauss)
debate textualists (such as Judge Frank Easterbrook or Justice Antonin Scalia)
about the utility of legislative history or the appropriateness of the Chevron doctrine, the disagreement does not typically ask which approach better identifies the subjective intent of Congress. Rather, the debate focuses squarely upon which of the contending approaches can better promote a constitutionally grounded conception of legislative supremacy, reflect the proper role of the federal courts, or provide a sensible solution to a problem that neither the statute at issue nor the Constitution decisively resolves.
A. Intent Skepticism Across the Board
Today, intent skepticism mostly conjures up images of the new textualism that emerged in the last two decades of the last century. Textualism developed in reaction to a strongly intentionalist judicial status quo.
For almost its entire history, the Supreme Court has said that the touchstone of statutory interpretation is legislative intent.
In the post–New Deal state, the Court began to treat legislative history—especially committee reports and sponsor statements—as authoritative evidence of such intent.
The idea was that such clues from the legislative record would help judges get inside Congress’s head and “imaginative[ly] reconstruct” the way legislators would have resolved the issue before the court.
In their campaign to discredit what they regarded as the illegitimate reliance on unenacted legislative history, the leading judicial textualists—those who defined the new textualism—argued that efforts to reconstruct “genuine” legislative intent were just “a wild-goose chase.”
This claim is closely associated with Judge Easterbrook’s arbitrage of Arrovian social choice theory, which emphasizes the possibility that a multimember legislature might have intransitive preferences that would cycle endlessly if not cut off in some way (i.e., Congress might prefer A to B to C to A).
On that account, the majority’s “intentions” concerning its preferred policy might vary based on arbitrary factors such as the order in which policy alternatives were taken up or the point at which debate was cut off and a vote taken.
The new textualists also cite more intuitive reasons for their intent skepticism.
They claim that the legislative process is too complex and path-dependent to permit judges, after the fact, to reconstruct what the legislature would have done about a policy question that it did not resolve explicitly in the statute. Bills take their final shape from a complex dance that may include multiple committees, behind-the-scenes logrolling, the threat of a Senate filibuster or presidential veto, the need to fight for scarce floor time, the need for unanimous consent to expedite votes in the Senate, and countless other factors that may or may not appear on the face of the record left in the bill’s aftermath.
The numerous veto gates erected by the rules of the two Houses build in a bias against enactment, so each bill has a thousand ways to die.
While the resulting complexities may not be “total bars to judicial understanding,” textualists like Judge Easterbrook see them as “so integral to the legislative process that judicial predictions of how the legislature would have decided issues it did not in fact decide are bound to be little more than wild guesses.”
Textualists thus start from the basic intuition that “with respect to 99.99 percent of the issues of construction reaching the courts, there is no legislative intent.”
Textualists, however, are hardly alone in their cynicism about the interpreter’s ability to read Congress. Whatever one may think about the various forms of constructive intent that have competed for the Court’s allegiance over the years, doubts about the existence of genuine legislative intent—an actual subjective congressional decision about the litigated issue—are very widely shared. Legal realism, for example, relied on such skepticism to justify the conclusion that judges are governmental officials who necessarily make policy in the course of statutory decisionmaking. As Professor Max Radin thus wrote:
That the intention of the legislature is undiscoverable in any real sense is almost an immediate inference from a statement of the proposition. The chances that of several hundred [legislators] each will have exactly the same determinate situations in mind as possible reductions of a given determinable, are infinitesimally small. The chance is still smaller that a given determinate, the litigated issue, will not only be within the minds of all . . . but will be certain to be selected by all of them as the present limit to which the determinable should be narrowed. In an extreme case, it might be that we could learn all that was in the mind of the draftsman, or of a committee of a half dozen . . . who completely approved of every word. But when this draft is submitted to the legislature and at once accepted without a dissentient voice and without debate, what have we then learned of the intentions of the four or five hundred approvers? Even if the contents of the minds of the legislature were uniform, we have no means of knowing that content except by the external utterances or behavior of these hundreds of [legislators], and in almost every case the only external act is the extremely ambiguous one of acquiescence, which may be motivated in literally hundreds of ways, and which by itself indicates little or nothing of the pictures which the statutory descriptions imply. It is not impossible that this knowledge could be obtained. But how probable it is, even venturesome mathematicians will scarcely undertake to compute.
In other words, Congress does not legislate with the litigated issue in mind. And even if it did, the judge would have no way of knowing what legislators intended to do about it.
This theme also finds expression in the work of the leading modern pragmatists, Professors William Eskridge and Philip Frickey. They argue that judges in statutory cases should engage in “practical reasoning”—a form of pragmatic, dynamic, multifactor analysis that does not depend upon unearthing some decision actually made by the legislature.
To clear the underbrush for their preferred approach, they express views of legislative intent that are nearly indistinguishable from those of Judge Easterbrook or Justice Scalia
It is hard enough to work out a theory for ascertaining the “intent” of individuals in tort and criminal law. To talk about the “intent” of the legislature, as that term is normally used, multiplies these difficulties, because we must ascribe an intention not only to individuals, but to a sizeable group of individuals—indeed, to two different groups of people (the House and the Senate) whose views we only know from the historical record. The historical record almost never reveals why each legislator voted for (or against) a proposed law, and political science scholarship teaches that legislators vote for bills out of many unknowable motives, including logrolling, loyalty or deference to party and committee, desire not to alienate blocks of voters, and pure matters of conscience.
Professor Ronald Dworkin, in turn, offers a particularly important conceptual critique of legislative intent—one that shows the impossibility of identifying a collective body’s “intent” as a fact of the matter, free of normative judgments about what should count as the body’s decision. In developing his constructivist “best reading” approach to statutory interpretation,
Professor Dworkin argues that even if a court could make a table of all of the legislators’ intentions, judges would lack a neutral metric for determining how to transform those intentions into a coherent whole.
Thus, he asks:
Whose mental states count in fixing the intention behind [a statute]? Every member of the Congress that enacted it, including those who voted against it? Are the thoughts of some—for example, those who spoke, or spoke most often, in the debates—more important than the thoughts of others? What about the executive officials and assistants who prepared the initial drafts? What about the president who signed the bill and made it law? Should his intentions not count more than any single senator’s? What about private citizens who wrote letters to their congressmen or promised or threatened to vote for or against them, or to make or withhold campaign contributions, depending upon how they voted? What about the various lobbies and action groups who played their now-normal role?
The need for aggregation complicates things further:
Should [an interpreter] use a “majority intention” approach, so that the institutional intention is that of whichever group, if any, would have been large enough to pass the statute if that group alone has voted for it? Or a “plurality” intention scheme, so that the opinion of the largest of the three groups would count as the opinion of the legislature even if the other two groups, taken together, were much larger? Or some “representative intention” approach, which supposes a mythical average or representative legislator whose opinion comes closest to those of most legislators, though identical to none of them? If the last, how is the mythical average legislator to be constructed? There are many other possible ways of combining individual intentions into a group or institutional intention.
Finally, Professor Dworkin notes that the answer to any counterfactual question about what Congress would have intended necessarily depends on the level of generality at which the question is framed, adding to the sense of arbitrariness in any attempt by judges to construct Congress’s actual intent.
Perhaps most surprising is the intent skepticism of the Legal Process scholars who defined the post–New Deal purposivism against which textualism has pushed.
Although the Legal Process materials urged interpreters to presume that a law’s enactors were “reasonable persons pursuing reasonable purposes reasonably,”
proponents of that approach never saw it as a road map to identify what Congress actually decided about the question in issue. Rather, those who laid the foundation for the Legal Process school took as a given that “[f]ew . . . legislators think in terms of the specific controversies which courts must settle by giving a statute one or another meaning.”
It was neither the practice nor the contemplated function of Congress to legislate at that level of granularity.
Hence, as Professors Hart and Sacks themselves explained, “the overwhelming probability” in any hard case is “that the legislature gave no particular thought to the matter [before the court] and had no intent concerning it.”
And even if that was wrong, Professors Hart and Sacks found the prospect of reconstructing such intentions daunting:
[O]n what basis does a court decide what [the enacting] legislature . . . would have done had it foreseen the problem? Does the court consider the political structure of the . . . legislature? Does the court weigh the strength of various pressure groups operating at the time? How else can the court form a judgment as to what the legislature would have done?
Hence, it became an article of faith among Legal Process purposivists that the object of interpretation was decidedly not to unearth a genuine (subjective) congressional decision about the case at hand.
When the Court referred to legislative intent, it could not mean “what was actually in the minds of those who framed and passed the statute.”
I have quoted at length from textualists, realists, pragmatists, Dworkinians, and Legal Process purposivists to show how pervasively intent skepticism frames the debate across leading theories of interpretation.
That shared assumption is attractive not only because it rings true to those who regularly deal with the intricacies of cases hard enough to make it into a federal reporter but also because the assumption itself forces those who argue about interpretation to defend their preferred theories on openly normative grounds. Even if loose language by those who write on the subject may at times suggest otherwise,
the contest here is not about which theory of interpretation will most accurately uncover the actual decision that Congress intended to be made about the issue in this or that case.
To be sure, in any system of government that is predicated (as ours is) on some form of legislative supremacy, the outcomes produced by applicable rules of interpretation must be attributable to Congress in some way, at some level.
But that does not—and, as Professor Dworkin showed—cannot mean discovering Congress’s actual, subjective “intent” as a fact of the matter.
Rather, as Professor Victoria Nourse has written, interpretive theorists properly use the concept of legislative “intent” only as a metaphor
—a fiction that underscores the idea that we are trying to construct or approximate a statutory decision in a way that makes sense of Congress’s role in our constitutional democracy. Interpreters, in other words, must impute constructive intentions to Congress through techniques that are meant to advance some conception of what legislative supremacy and judicial power properly entail under the U.S. Constitution.
Because this description of the enterprise sounds terribly abstract, it is helpful to think about it in terms of two competing claims about important matters of interpretation. Hence, the section that follows offers examples from prominent debates about legislative history and deference to agency interpretations of law. What the materials that follow show is this: When spared the pretense of trying to figure out—to make a factual judgment about—what Congress actually decided in any given case, interpreters have room to reorient the debate toward normative questions about the proper functioning of our system of government.
B. Legal Process Versus Textualism
The Hart and Sacks materials introduced the useful idea of “institutional settlement”—the notion that society avoids chaos by agreeing to “regularized and peaceable methods of decision” that the legal system accepts as binding.
In almost any constitutional system (and certainly in one as old and complex as ours), the particulars of those methods and their application will be disputed. Because the rules of interpretation allocate policymaking authority among lawmakers and law appliers, debates about interpretive method necessarily and properly reflect assumptions about the appropriate institutional roles of the players involved.
If Congress has no actual intent on any hard question, then debates that focus on how best to identify such intent may submerge the background institutional stakes. A shift toward intent skepticism, in turn, may help bring those stakes to the surface.
The analytical divisions and, equally important, the common ground between prominent Legal Process adherents (such as Professor Strauss) and leading textualists (such as Judge Easterbrook and Justice Scalia) exemplify how much institutional settlement frames the debate in a post-intentionalist environment. The two sides have more in common than many may realize. Neither sees the debate as one about whether or how interpreters can identify “legislative intent.” Rather, the differences between textualists and Legal Process purposivists turn almost entirely on what a judge (or an agency) ought to do when statutory meaning runs out, as it so often does. The discussion below looks at two prominent examples: (1) the role of legislative history, if any, in statutory interpretation and (2) the proper level of deference, if any, owed by reviewing courts to agency interpretations of administrative statutes.
1. Legislative History. — As noted, for several related reasons, the new textualists argue that judges should not treat legislative history as authoritative evidence of legislative intent. In their early writings, textualists stressed that Congress has no collective legislative intent to unearth
and that, even if it did, judges have no way of knowing which (if any) legislators actually relied upon any particular piece of legislative history, even premium items such as committee reports.
If legislative history is not a window into actual legislative intent, textualists believe that there are sound institutional, even constitutional, reasons not to use it. Given the volume and diversity of available legislative history, textualists fear that its use gives judges too much discretion to push their own preferred outcomes.
In addition, if judges treat legislative history as authoritative evidence of statutory meaning, then legislators can make an end run around the constitutionally prescribed processes of bicameralism and presentment.
Instead of bargaining to include particular measures in the statutory text, legislators have the ability to salt the legislative record with their preferred outcomes in the expectation that judges and administrators will treat those signals as reliable indicia of Congress’s decision.
Instead of relying on legislative history, textualists want judges to listen for “the ring the [statutory] words would have had to a skilled user of words at the time, thinking about the same problem.”
With some notable (and, I think, questionable) add-ons such as clear statement rules,
the new textualism thus gives close attention to the shared social and linguistic conventions that enable the relevant linguistic community to convey meaning. Textualists tend to move briskly to dictionary definitions, rules of grammar and syntax, and (since statutes are, after all, legal instruments) canons of interpretation or terms of art peculiar to the legal community.
Putting aside some careless statements in textualist writings,
textualists do not believe that legislators subjectively have in mind the content of dictionaries, the esoteric rules of syntax, or the specialized content of terms of art.
Rather, textualists believe that if interpreters emphasize semantic cues, then legislators can reliably make use of those cues to record their lines of inclusion and exclusion, whether legislators actually paid close attention to textual meaning or not in any particular case.
The Legal Process position as articulated by Professor Strauss and others starts from similar structural premises but draws quite different conclusions. For Professor Strauss, interpreters cannot realistically expect to resolve pervasive indeterminacies by seeking genuine legislative intent on the litigated issue. “Congress,” he writes, “is a bureaucracy of tens of thousands, and too frequently acts on legislative behemoths no member can have read; the claim that it ‘knows’ anything is absurd.”
What is more, “the difficulties of collective authorship . . . make problematic the idea that legislation can have an ‘intent’ if it emerges from the highly variable participation of 535 legislators divided among two Houses of Congress and their many committees and subcommittees, and assisted by innumerable staff and lobbyists.”
And even “[i]f we imagine a legislature with the best of will adopting statutory instructions, we know at once that as a human institution it will be imperfectly foresightful, unaware of all possible meanings the words it chooses could be given, and solipsistic.”
Finally, he writes, if courts were to regard “themselves as bound in any legal sense by words spoken or written during Congress’s consideration of legislation,” they would run afoul of the constitutional principle that Congress “cannot limit the possible [interpretive] outcomes by any means other than the words it enacts.”
At the same time, to say that judges are not bound to enforce the legislative history is not to say that they are bound to ignore it.
On the contrary, if statutes typically set a range of permissible meanings among which the interpreter must choose, then statutory interpretation will obviously entail policymaking discretion. To Professor Strauss, this reality poses the inevitable question of who will exercise that discretion and how. A judge who excludes all consideration of legislative history exercises that discretion on his or her own account.
Even if one accepts that a committee report or sponsor’s statement cannot speak for Congress as a whole, “[w]hy would we prefer a judge operating within . . . a range [of policymaking discretion] to be indifferent or oblivious to information about the political history of th[e] legislation?”
Even if not binding, legislative history provides context that can help the judge to “see a complex statute as an integrated whole” or to understand technical nuances that may be unobvious to the layperson but may be “quite firmly settled in the public and private communities that deal with the statute on a daily and intimate basis.”
At the very least, “[h]earings, debates, and reports will reveal what issues were brought to congressional attention, and what were not.”
Being mindful of those clues, Professor Strauss argues, promotes the classic common law judicial function of reading statutes to suppress the mischief and promote the remedy that the legislation contemplated.
In contrast, to exclude all consideration of political history, he worries, pits judges against Congress in a way that our constitutional system does not contemplate.
By increasing the possible need for a legislative override, a court that ignores the political history of a bill “impose[s] make-work on Congress” and “invite[s] repetitive struggles that, even if not intended, are wasteful of the limited resources of time and effort Congress has available to it for its legislative agenda.”
This approach, he says, shows “disrespect for a coordinate branch of government that is . . . hard to justify under . . . well-established structural constitutional principles.”
All of this is classic institutional reasoning firmly within the Legal Process tradition.
That tradition, as noted, urges judges to read the legislative record to help them construct “reasonable purposes” to ascribe to legislators, whom the judges presume to be “reasonable.”
But as the Court’s most committed Legal Process Justice—Stephen G. Breyer—has made clear, the reasonable, purposive legislator is a “legal fiction that applies . . . even when Congress did not in fact consider a particular problem.”
For the Legal Process purposivist, that fiction finds its justification not because it better captures some actual congressional decision
but rather because it provides “a workable method of implementing the Constitution’s democratic objective” of translating the “public will . . . into sound policy.”
Hence, Legal Process purposivism reflects “a normative statement prescribing proper attitudes for judges in their dealing with the work of legislatures, rather than a positive one describing what legislatures are.”
2. The Chevron Doctrine(s). — A presumption of statutory indeterminacy also frames the ongoing debate between Legal Process purposivists and textualists over the Chevron doctrine. Chevron, of course holds that, at least in certain contexts, a reviewing court must accept an agency’s “reasonable” interpretation of a vague or ambiguous statute the agency is charged with administering.
Questions about both the justification and scope of the Chevron doctrine have provoked considerable scholarly disagreement.
One part of the equation is easy: While the Administrative Procedure Act (APA) states that “the reviewing court shall decide all relevant questions of law, [and] interpret . . . statutory provisions,”
most think that “Chevron deference” is nonetheless justified where the organic act delegates to the agency the discretion to resolve indeterminacies in the organic act’s operative terms.
Where an organic act delegates interpretive discretion to an agency, the court “interprets” the organic act, first, by determining the existence of a delegation and, second, by deciding whether the agency has stayed within the bounds set by that delegation (i.e., has “reasonably” interpreted statutory terms about whose meaning reasonable people can differ).
Even though the connection between deference and delegation is well accepted, confusion and disagreement have long surrounded the question of when to find that an organic act delegates the requisite interpretive lawmaking power to the agency that administers it.
The controversy perhaps reflects, in part, the fact that the Court has swung wildly among different formulae for identifying when deference is due. For two generations after the APA’s adoption—during the heyday of the Legal Process era—the Court applied the so-called Hearst–Packard approach.
Under that pre–Chevron framework, the Court determined whether to “defer” to an agency interpretation of law based on multiple unranked factors: Did the question at issue involve a pure question of law or the application of law to fact?
Did the interpretive question require agency expertise?
Did the agency help draft the legislation?
Was the agency interpretation one of long standing?
Professor Colin Diver identified no fewer than ten factors that the Court found relevant in determining whether it had to accept an agency interpretation of law.
In roughly the past three decades, the Court has changed course at least twice. In 1984, as noted, it adopted the Chevron approach, which seemed (to some, at least) to embrace a categorical rule requiring reviewing courts to defer to reasonable agency interpretations of ambiguity in an organic act.
In 2001, United States v. Mead Corp. held that Chevron deference is available only when the agency resolves statutory ambiguity through “relatively formal administrative procedure[s] tending to foster the fairness and deliberation” that one would expect to accompany a proper legislative delegation of interpretive lawmaking power.
An organic act, the Court said, might signal such a delegation “in a variety of ways, as [through its grant of] power to engage in adjudication or notice-and-comment rulemaking, or by some other indication of a comparable congressional intent.”
In the absence of such processes, the Court could still properly invoke Chevron deference in “any other circumstances reasonably suggesting that Congress . . . thought of [the particular kind of agency action] as deserving the deference.”
Though the Court in Mead did not spell out those circumstances, a subsequent opinion suggests that “the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question over a long period of time” may justify Chevron deference even if the agency has invoked procedures too informal to qualify for Mead’s safe harbor.
The Court’s approach to what some have called “step zero”
—the judicial determination of whether a given organic act confers interpretive lawmaking power upon the agency—might surely be understood as a question of when Congress intends to delegate such power.
Yet whatever the background legislative understanding about deference and delegation may once have been, it would be facetious for judges today to treat the availability of deference as a question of genuine legislative intent.
Organic acts typically say nothing explicit about the question. In no opinion has the Court premised its application of Chevron on the existence of legislative history suggesting that Congress preferred or disfavored a deferential approach under a given organic act. And even if one takes at face value the Court’s occasional suggestion that Congress legislates with awareness of the Court’s settled rules of interpretation,
the Court’s rules here—hardly pellucid in the first place—have changed time and again, rendering settled interpretive practice a questionable basis for inferring congressional intent.
If the organic acts do not speak clearly to whether the court or the agency has final authority to flesh out the open-ended terms of an organic act in specified circumstances, then the judiciary necessarily exercises delegated discretion to determine whether the Chevron framework applies or not.
Viewed in that light, the major fights over deference have almost always turned on institutional arguments about when a court should impute a delegation of interstitial interpretive lawmaking authority to an agency administering an organic act. If Justice Scalia represents textualism on this point, he has made clear that deference does not depend on decoding actual legislative instructions about delegation.
Describing “the quest for the ‘genuine’ legislative intent [as] . . . a wild-goose chase,” Justice Scalia opines that in “the vast majority of cases” Congress “didn’t think about [deference] at all.”
Instead, he stresses, “any rule adopted in this field represents merely a fictional, presumed intent.”
From that starting point, he pushes a version of textualism that prefers clear and predictable rules over more judgmental standards.
Under this account of textualism, “[w]hat is of paramount importance is that Congress be able to legislate against a background of clear interpretive rules, so that it may know the effect of the language it adopts.”
Justice Scalia thus prefers Chevron’s categorical approach over a multifactor approach not because it better captures actual legislative intent, but rather because it establishes a clear background presumption against which Congress can legislate.
Professor Strauss, who may be the law professoriate’s leading Chevronologist, writes in the same spirit of intent skepticism,
disagreeing with textualists mainly about why and when the judiciary should posit a fictive legislative intent to delegate interpretive lawmaking power to an agency. In the early days of Chevron, he joined Justice Scalia in defending the broad, categorical reading of Chevron. Professor Strauss believed that, in the absence of a clear legislative signal about delegation, Chevron provided a sensible means of managing an overloaded Supreme Court docket and promoting uniformity in federal law.
If administrative statutes typically allow a range of possible meanings, then ascribing primary interpretive responsibility to reviewing courts “virtually assure[s]” diverse interpretations of federal law across circuits, given the Supreme Court’s “practical inability” to take enough cases to correct inconsistent readings by the lower federal courts.
In contrast, requiring judges to defer to an agency’s reasonable interpretations of ambiguity establishes a focal point around which to promote uniformity that the Court itself might be unable to impose through its limited docket.
On that view, Chevron can be defended not “just as a rule about agency discretion,” but “as a device for managing the courts of appeals that can reduce (although not eliminate) the Supreme Court’s need to police their decisions for accuracy.”
More recently, Professor Strauss moved away from Chevron’s categorical approach and toward Mead’s more fact-specific approach
—one that frees the judiciary to “tailor deference to variety” in a complex administrative state.
His evolution does not reflect a changed view about the availability (or not) of genuine congressional intent. Rather, Professor Strauss ties his endorsement of Mead to a common law vision of the federal courts.
Simply put, if Congress does not specify what kind of deference it expects in the typical administrative statute, then Professor Strauss thinks it desirable for judges to use their discretion to foster “case-by-case development of an imperfect statutory framework to resolve a difficult issue of federal administrative law—that is, the classic common law approach.”
Once again, this is pure Legal Process reasoning, rooted in an impulse to craft a sensible and institutionally sensitive response to statutory indeterminacy.
II. The Old Skepticism Meets the New Empiricism
In a debate framed largely around the premise of intent skepticism, scholars have periodically asked whether it is possible to zero in better on Congress’s actual decisions by gathering and better analyzing evidence of the way Congress works. In the early days of the fight over legislative history, Chancellor Nicholas Zeppos, for example, urged judges to look at the legislative record to determine, if possible, which legislators might have had access to a committee report and when.
Dean Daniel Rodriguez and Professor Barry Weingast have counseled interpreters to identify and rely on legislative history generated by “[p]ivotal legislators,” who “have the strongest incentives to communicate reliably the act’s meaning” rather than engage in “cheap talk.”
Judge Robert Katzmann has called upon judges to credit the key pieces of legislative history that legislators themselves regard “as essential in understanding [statutory] meaning.”
And Professor Nourse has intriguingly written that judges can learn a lot by filtering legislative signals through explicit congressional rules of practice governing matters such as the import of conference reports.
Following in the footsteps of an important but smaller-scale study of congressional staff published roughly a decade earlier,
Professors Gluck and Bressman have undertaken a lengthy survey of 137 congressional drafting staff. The authors pose 171 questions that “covered topics ranging from the role of canons such as the presumption against preemption, expressio unius, and Chevron deference, to legislative history, the legislative process, and the way that staffers perceive the responsibilities of courts and agencies in statutory interpretation.”
Professors Gluck and Bressman carefully frame the purpose of the study and the use to which they hope the statutory interpretation community will put the results: To the extent possible, they want their findings to shed light on whether “legislative drafting practice” confirms or disproves hypotheses that inform “modern interpretive practice.”
They pursue this labor-intensive objective because, they say, “drafting ‘reality’ has been a central component of virtually all of the theoretical and doctrinal debates.”
Professors Gluck and Bressman do not identify themselves with classic intentionalism.
But they plainly invoke intentionalist reasoning—the subjective expectations of legislative drafters—to criticize important interpretative techniques and to articulate grounds for embracing others. For instance, Professors Gluck and Bressman suggest that their findings about legislative practice undermine the basis for textualists to claim support in the “faithful-agent model” that underlies “most interpretive approaches.”
Because the Gluck and Bressman study unearthed “a treasure trove of information about key influences on the actual drafting process,”
one cannot help but ask whether this knowledge undermines the intent skepticism that has framed so much of the interpretation debate. The study is too extensive to consider all of its findings. But three important examples will give a flavor of the challenges that the study presents. First, Professors Gluck and Bressman argue that many of the tools textualists use to identify statutory meaning—including consistent-usage canons and dictionaries—lack support in the realities of legislative drafting practice.
Second, relying on the respondents’ descriptions of legislative practice and attitudes, Professors Gluck and Bressman suggest that the empirics of the legislative process undermine the textualist position that legislative history is a poor proxy for “legislative intent.”
Third, Professors Gluck and Bressman argue that much about the Court’s current approach to judicial “deference” to agency interpretations of law matches up with actual legislative preferences, at least as reflected in the assumptions of the drafters.
Professors Gluck and Bressman argue that staffers do not subscribe to Chevron’s one-dimensional assumption that Congress uses ambiguity in an administrative statute to signal a delegation of interpretive lawmaking power. They find, instead, that staffers’ views correspond more closely to the more complex set of presumptions embodied in Mead and the other, more context-sensitive cases that have come on line with it.
Assuming arguendo that the Gluck and Bressman survey captures the views of the staff and of the legislative body more generally,
its findings nonetheless confirm rather than undercut (a) the ineffability and contingency of legislative intent and (b) the corresponding impossibility of treating intent as a “fact of the matter” that can be made sense of without a normative frame of reference. First, the staff’s dismissal of dictionaries and of consistent-usage canons highlights what (one hopes) interpreters of any school would acknowledge—that members of Congress do not, and need not, know the precise content of what they are voting for in order to give it legal significance. Rather, even the obscurest norms of interpretation can promote a defensible version of legislative supremacy by providing off-the-rack rules that enable Congress to draw lines of inclusion or exclusion, whether or not its drafters have consciously done so in any particular case. Second, Gluck and Bressman’s findings about legislative history confirm Professor Dworkin’s insight that one cannot identify the fact of “legislative intent” without a prior theory of what intentions interpreters should attribute to Congress. Third, the complexity of staff attitudes about Chevron and Mead confirm the difficulty of moving even from in-depth knowledge of staff attitudes to a firm set of legislative intentions about any particular case. As the analysis that follows indicates, Professors Gluck and Bressman acknowledge many of these complexities, even if their findings occasionally suggest that their survey results tell us what a faithful agent would do or what democracy or legislative supremacy requires. The analysis that follows means only to show how theory-dependent those claims turn out to be and how greatly value judgments suffuse the choice of what to attribute to Congress, no matter how well we can know the minds of its drafters.
A. Norms of Statutory Usage
The Gluck and Bressman survey explores the extent to which legislative drafters subjectively know and subscribe to norms of statutory usage applied by the Court to determine statutory meaning. Interestingly, Professors Gluck and Bressman found that staffers were aware of and relied on certain semantic canons, including the dreaded expressio unius canon and the almost equally controversial ejusdem generis maxim.
The survey also revealed, however, that not all semantic tools of construction captured the respondents’ subjective expectations or practices.
Nor, say Professors Gluck and Bressman, can many of those same canons be justified “as drafting-teaching tools”—norms that, over time, will induce staffers to write more carefully in accordance with the semantic framework specified by the Court.
Many of the canons rejected by the drafting staff have been staples of the Court’s shift toward textualism in the past quarter century.
For example, Professors Gluck and Bressman found that the “rule against superfluities” (which, as one might think, presumes that Congress does not use words superfluously)
does not reflect drafting reality.
Nor do consistent-usage canons (such as the “whole act rule”),
which presume that Congress uses the same words or phrases consistently across different parts of the same statute or even the U.S. Code.
And despite the proliferation of dictionaries in Supreme Court opinions in the past quarter century,
staffers apparently do not consult dictionaries to ascertain the meaning of the words they choose.
In short, Gluck and Bressman’s findings make clear that a Court that purports to be text-sensitive uses many conventions that are disclaimed by the staffers who draft the text being decoded.
Professors Gluck and Bressman are measured in the implications they draw from their findings about what they call the “rejected canons.”
They argue that their results compel proponents of “most versions” of the “faithful-agent” theory to find another justification for parsing the statutory text.
And even if textualists claim to be looking for “objective intent” rather than subjective legislative understandings, the rejected canons “do not actually effectuate even general, ‘objective’ congressional expectations.”
Professors Gluck and Bressman allow that judges might still invoke them based on “rule of law arguments that the canons help judges coordinate systemic behavior or cohere the U.S. Code.”
But courts do not typically rely on such justifications because they “are difficult to reconcile with the faithful-agent paradigm that modern judges find so attractive” and because the judicial imposition of rule-of-law values might “appear ‘activist.’”
Neither legislative intent nor related concepts such as faithful agency, however, are facts in the world, waiting to be discovered. As noted, legislative intent, no less than faithful agency or legislative supremacy, is a construct that tries to make sense of the constitutional roles of various governmental actors in the face of indeterminacy. Two of Gluck and Bressman’s findings, in particular, help to illustrate the point.
First, consider the survey’s results concerning the family of consistent-usage canons, such as whole act or whole code rules. It turns out that a single committee may use words consistently.
But in today’s Congress, the “increasing tendency” is “to legislate through omnibus or otherwise ‘unorthodox’ legislative vehicles” that reflect the handiwork of “multiple committees.”
Because “congressional committees are ‘islands’” that have distinct knowledge bases and drafting practices, most of the staffers surveyed by Professors Gluck and Bressman question the factual validity of presuming consistent usage in omnibus bills whose sections originate in different committees.
Even less are courts justified in presuming consistent usage across different statutes passed at different moments in time.
A second important finding relates to the use of dictionaries. Despite a dramatic spike in judicial consultation of dictionaries, legislative staffers do not look up words in the dictionary when they are trying to ascertain statutory meaning.
Professors Gluck and Bressman thus conclude that “continued judicial reliance on dictionaries simply cannot be justified on the ground that Congress knows the definitions that will be used.”
Though Professors Gluck and Bressman do not focus on technical dictionaries in particular, it seems safe to stipulate further that their general findings concerning dictionaries apply with at least equal force to the often-arcane technical sources that the Court and its most ardent textualists routinely use to look up the detailed legal connotations of terms of art.
Accepting the Gluck and Bressman findings about staff practices or understandings, however, does not answer the question whether those practices can draw justification from complementary ideas of faithful agency and legislative supremacy.
In fact, both sets of results deepen rather than resolve the baseline statutory indeterminacy that requires judges to construct rather than find legislative intent. First, consider the way the Court applied the consistent-usage canon in its much-discussed decision in West Virginia University Hospitals, Inc. v. Casey.
To simplify, the Court in Casey concluded that the power granted by 42 U.S.C. § 1988 to shift “attorney’s fees” did not extend to “expert fees” because numerous other statutes explicitly shifted both “attorney’s fees” and “expert fees.”
For the Court, this pattern of usage was clear and decisive. According to Professors Gluck and Bressman, however, the Court should have paused over the fact that thirty-seven of the forty-one comparison statutes upon which the Court relied—including the four upon which it relied most centrally—originated in different committees from the one that produced § 1988.
Because different committees do not use common drafting practices or attach the same meanings to words, Professors Gluck and Bressman suggest that the Court in Casey should have rejected the “consistent-usage presumption” on the facts before it.
Second, one can hardly pretend that the Court captures real-world staff knowledge when it relies on the arcana in legal dictionaries or, at times, in even more obscure sources than that. In CTS Corp. v. Waldburger, for example, the Court relied on law dictionaries to draw the fine distinctions between “statutes of repose” and “statutes of limitations” for purposes of an environmental statute that preempts state “statutes of limitations” governing certain pollution-related injuries.
Or consider Justice Scalia’s famous dissent in Moskal v. United States, which relied on law dictionaries, Blackstone’s Commentaries, old criminal law treatises, and obscure state and federal cases to hold that the crime of “falsely mak[ing]” a security entails forging a document, and not creating a genuine document with false information.
Gluck and Bressman’s findings about dictionaries make it hard to imagine congressional staffers repairing to the nearest law library to scour these obscure sources for the fine points of technical common law meaning.
To me, all of this suggests that the Gluck and Bressman survey either leaves intact or even reinforces the baseline of intent skepticism from which textualism and so many other philosophies proceed. What have we learned? First, the legislative staff—and presumably the legislators for whom they work—did not consciously use the phrase “attorney’s fee” to mean something different from a phrase like “attorney’s fee and expert fee.” Second, it seems most unlikely that either the staff or their legislative principals rushed out to ascertain the subtle common law distinctions between “a statute of limitations” and “a statute of repose” or sweated the technical details of the “falsely making” offense. All of this reinforces the assumption, shared by so many approaches, that Congress almost surely failed to consider or resolve any of those interpretive questions at anything like that level of specificity.
Again, this clears the underbrush to argue about how competing interpretative approaches might or might not serve conceptions of legislative supremacy or faithful agency. From that starting point, one could easily defend both the consistent-usage canon and judicial reliance even upon technical dictionaries. Imagine that the Court rejected the consistent-usage canon, eliminating the presumption that Congress means something different when it says “attorney’s fee” in one place and “attorney’s fee and expert fee” in another. This shift would make it costlier for Congress to use even obvious differences in wording, as one might expect, to express differences in policy. But if the Court presumes as a matter of law that such obvious differences are deliberate, then Congress has a cheap and predictable way to draw lines between statutes that merely award attorney’s fees and those that award both kinds of fees. Similarly, the Court might forgo any presumption that an apparent technical word or phrase imports the full measure of its technical meaning. But that would just make it harder for Congress to tap, for example, into the richness of the law’s many specialized terms. Conversely, if the Court presumes as a matter of law that Congress “knows and adopts the cluster of ideas” that accompany a legal term of art, then legislative drafters have a cheap way to incorporate and reference the common law complexities of a recognizably legal term.
It is not my aim here to defend those canons or any particular understanding of faithful agency and legislative supremacy. Rather, the purpose of this discussion is to show that even if the “rejected canons” do not correspond to conscious or subjective staff expectations, those canons may still promote legislative supremacy by giving Congress the tools to draw effective lines of inclusion and exclusion.
To be sure, Professors Gluck and Bressman worry that organizational impediments—such as Congress’s siloed committee structure—prevent legislators from realizing the drafting benefits that a consistent-usage canon might otherwise provide.
At least some evidence, however, suggests that recent enhancements in the professionalization, and the contemplated role, of entities such as the Congressional Research Service may increase the likelihood of coherence, even across provisions in omnibus statutes and in different statutes enacted over time.
Whether or not such improved coordination has (or will) come to pass, the so-called “rejected canons” still make available “off-the-rack” rules for Congress to express itself more precisely, even if staffers do not necessarily take advantage of the tools provided.
Finally, Professors Gluck and Bressman assert that the Court applies its canons too inconsistently to establish an effective semantic baseline or toolkit.
That concern is a fair one;
consistency is difficult for any multimember body to achieve.
But since all communication requires a baseline of social and linguistic practice,
Gluck and Bressman’s concern goes well beyond the efficacy of the rejected canons. Taken to its logical end, the premise that the Court is incapable of consistency casts doubt on the entire interpretive enterprise. Whether and to what extent that doubt is justified is a topic for a different (and much larger) paper.
B. Legislative History and the Construction of Legislative Intent
Professors Gluck and Bressman also question the foundations of the textualist critique of legislative history. Textualists, as noted, argue that legislative history does not constitute a legitimate basis for establishing meaning because Congress does not enact it through the processes prescribed by Article I, Section 7 of the Constitution.
They also question the empirical proposition that legislative history reflects legislative intent.
For two reasons, Professors Gluck and Bressman argue that their survey forecloses any empirical basis for the claim that the text provides a superior source of statutory meaning.
The first reason derives from the staff dynamics of legislative policy-making and statutory drafting. To simplify, Professors Gluck and Bressman find that it is “not uncommon” for legislators to strike a policy deal “before pen is put to paper.”
Often at that point, the policy staffers who work for the members of Congress or committees formulate “bullet points” or “rough outlines” of the text, which they transmit to another set of staffers—those who work in one or the other House’s nonpartisan Office of Legislative Counsel.
In contrast with the policy staff, the Legislative Counsel staffers who draft the legislation do not answer to (viz. are not hired or fired by) the legislators who frame the policy.
In this environment, Professors Gluck and Bressman find it significant that “legislative history . . . , such as committee reports, . . . is drafted by those staff with more policy expertise and greater direct accountability to the members than the staff who may draft the text.”
The second reason relates to what members of Congress and the staffers who advise them are likely to read. In a famous opinion, Judge Posner once suggested that, especially for technical statutes, “the slogan that Congress votes on the bill and not on the report strikes us as pretty empty.”
Indeed, he wrote, a member of Congress “would have great difficulty figuring out the purport of [a technical term] without the aid of the committee reports.”
Gluck and Bressman’s findings appear to substantiate Judge Posner’s hypothesis. According to the survey results, members of Congress and their staff are much more likely to learn about the contents of a bill by reading the legislative history than by reading the text itself.
In advising members of Congress, moreover, staffers will have a nose for what kind of legislative history is likely to be the best reflection of what Congress decided.
Indeed, Gluck and Bressman’s findings suggest that legislative history was “the most valued” tool of construction, with “92% [of their respondents reporting] that legislative history is a useful tool for courts to consider . . . to determine legislative intent.”
Professors Gluck and Bressman acknowledge that the complexity of the process they describe “may drive home” the difficulty “of discerning collective intent.”
Still, they suggest that their survey has revealed enough about legislative intent to rule out, for example, “democracy-based, faithful-agent” justifications for textualism.
In incautious moments, textualists have said that they follow the text because it captures the legislative compromise.
Professors Gluck and Bressman note, however, that “the particularly granular level” at which today’s cases often read statutory text is simply “disconnected from the way in which members and congressional policy staff engage in the drafting process.”
The technicality of statutory texts makes it difficult for policy staffers to confirm that the Legislative Counsel “accurately translate[d] their deals” or “reflect[ed] the intentions” of the policymakers who made them.
And the realities of the legislative process preclude reliance on the premise that “directly elected members, and even high-level staff, are involved in the details of statutory text.”
Hence, if nothing else, the facts on the ground foreclose the conclusion that textualism better captures actual legislative outcomes. Instead, a preference for text over legislative history just “boils down to a very spare formalism.”
Professors Gluck and Bressman argue that, rather than accept that result, sophisticated interpreters should investigate the more relevant and complex question of what forms of legislative history do or do not reflect the shared understanding of drafters in a complex legislative environment.
The facts found by Professors Gluck and Bressman, however, cannot answer the question whether text or legislative history better reflects “legislative intent” because that question remains, at bottom, a normative one. Recall Professor Dworkin’s admonition that one cannot have a theory of legislative intent without first articulating a theory of adjudication—that is, without a legal theory that tells a judge or other interpreter how to determine whose intentions count and in what way.
Professors Gluck and Bressman point to several texts as potentially relevant for identifying the legislative “deal”: (a) the bullet points (or outlines) prepared by the policy staff for the drafting staff; (b) the committee report crafted by the policy staff; and (c) the dry technical text drafted by the Legislative Counsel. Professors Gluck and Bressman contend that their survey “provides new reasons to question the current focus on text as the best route to legislative intent.”
Similarly, they argue that their findings preclude textualists from claiming “that a text-based approach best respects legislative bargains.”
Again, what counts as “legislative intent” or the relevant “legislative bargain” is simply not a “fact of the matter” that can be established empirically. Any such conclusion depends on normative premises—value judgments that necessarily precede and make sense of the facts. One could easily construct a narrative in which the dry, formal, technical work product of the unaccountable Legislative Counsel can better claim to represent the democratically chosen legislative outcome. Why? Article I, Section 5, of the Constitution gives Congress authority to structure (within constitutional limits) the way it does its business.
Pursuant to its rules, Congress determines the texts on which it chooses to vote.
Professors Gluck and Bressman say that the policy staff’s “‘bullet points’ may be the strongest evidence of congressional intent,” but the fact remains that Congress neither votes for them nor even makes them available to the “public.”
Indeed, the very strength of Gluck and Bressman’s findings highlights a puzzle about legislative behavior: If legislative reports are produced by the more accountable staff (the ones closer to the deal) and if those reports contain the policy narratives on which legislators base their votes, why does Congress not typically incorporate such materials, in effect, as glossaries to the statutory text itself?
Even if there is no procedure at present for doing so as a matter of course, presumably Congress could devise (though perhaps not muster the votes to adopt) a procedure that routinely either compiles committee reports or sponsors’ explanations into an appendix to each bill or provides for their incorporation by reference. Certainly, given the Court’s shift toward (though not all the way to) textualism over the past three decades—and its increased skepticism of legislative history in that period—one might at least ask why legislators do not incorporate key legislative history into their bills if it plays such a central role in the articulation and communication of the deal.
Professors Gluck and Bressman acknowledge that the statutory text alone comes up for a vote.
But they view any “vote-on-the-text-based approach” as mere “formalism” rather than as a way to capture the “legislative bargain.”
Again, I think that this conclusion does not fully acknowledge that what counts as the relevant legislative “intent” or “bargain” is only partly a factual question. Those constructs—and that is what they are—necessarily depend on normative conclusions about what we should treat as meaningful legislative outputs within our particular system of government. In this case, one might deem it significant that Congress’s own procedural choices result in the framing of a dull, technical, formal final text on which the body as a whole votes. Surely it is not mere formalism to equate the relevant legislative outcome with the text on which Congress chooses to act rather than the other texts that it generates in the same process but chooses not to bring before the body as a whole. Whatever facts one may learn about the way the legislative process works, the question of what counts as Congress’s decision depends heavily—indeed, inevitably—on institutional value judgments about what should count as such.
C. The Chevron Doctrine
The survey’s findings about the scope and availability of deference also reaffirm the continued relevance of intent skepticism as a central organizing principle in interpretation doctrine. I have argued in prior writing that the debate over appropriate judicial deference to agency interpretations of statutes depends on the imputation of constructive legislative intent.
Congress rarely speaks directly to the question of when and to what degree it wishes to delegate interpretive lawmaking discretion to an agency. The Court has, therefore, cycled through different deference regimes based on functional assessments of when a “reasonable” legislator would want a reviewing court to defer.
Hence, as discussed above, textualists tend to favor what I will call the broad view of Chevron
—one that categorically treats ambiguity in an organic act as a basis for judicial deference to the agency’s reasonable interpretations of the act.
Professor Strauss, as noted, prefers a more fact-bound Mead doctrine,
which presumes that Chevron applies only in relatively formal agency proceedings but also provides a safety valve in “other circumstances reasonably suggesting that Congress . . . thought of [the agency action] as deserving . . . deference.”
And then there are twists such as the “major questions” doctrine, which denies Chevron deference on any matter that is so important that Congress could not have intended to delegate its resolution to an agency.
The proper approach to deference regime is much discussed,
but only rarely in terms that focus on what Congress actually intended.
Professors Gluck and Bressman, however, argue that their survey findings show that “Chevron now seems too text- and court-centric, in light of our findings, to actually capture congressional intent to delegate.”
Instead, they pull from their findings a story in which legislative staffers prefer Mead and the major questions doctrine to Chevron in its pure form.
At the outset, they conclude that the evidence of drafting assumptions does not support Chevron’s equating ambiguity with delegation. Apparently 82% of staffers surveyed knew Chevron by name; 58% said that it plays a role in their drafting; 31% connected ambiguity with judicial deference; and 29% said that Chevron made them think about how precisely they needed to frame their policies.
But other findings, say the authors, contradict Chevron’s core premise that Congress intends ambiguity as a signal of delegation. In particular, Professors Gluck and Bressman stress that while 91% of respondents stated that delegation constitutes one reason for statutory ambiguity, an even higher percentage cited other contributing factors, such as “lack of time (92%), the complexity of the issue (93%), and the need for consensus (99%).”
From this, the authors conclude that while “Chevron now seems to be a relatively fixed point in many of [the staffers’] drafting practices,” the survey shows that “the doctrine’s assumptions are not entirely reflective of [legislative] intent.”
More importantly, Gluck and Bressman’s results further indicate that many or most staffers subscribe to subsequent refinements that have limited Chevron’s domain. In particular, the authors deemed Mead “a ‘big winner’” in their survey because 88% of the staffers told them that authorizing notice-and-comment rulemaking is always or often relevant to whether staffers intend to delegate interpretive discretion to agencies.
In addition, the survey’s respondents cited numerous other factors as relevant to whether they intended to delegate gapfilling authority to agencies—including the “everyday” nature of the question (99%), the need for agency expertise (93%), the consistency and duration of the agency interpretation (66%), the subject matter of the statute (60%), the agency’s participation in drafting (50%), and common control of Congress and the Presidency at the time of enactment (40%).
Three-fifths, moreover, “intend[ed] for Congress, not agencies to resolve [major questions].”
For three reasons, the Gluck and Bressman survey does not alter the baseline that Congress has failed to express a meaningful intention about delegation and thus deference. It therefore leaves intact the Court’s authority to base its rules of deference on functional considerations—to determine what kind of deference a hypothetical reasonable legislator might prefer. First, the fact that staffers ascribed ambiguity to multiple reasons other than delegation is consistent with Chevron’s core premise that one cannot know why Congress did not resolve the “precise question at issue”:
Perhaps [Congress] consciously desired the [agency] to strike the balance at this level, thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so; perhaps it simply did not consider the question at this level; and perhaps Congress was unable to forge a coalition on either side of the question, and those on each side decided to take their chances with the scheme devised by the agency.
The Court added that, for purposes of its decision to give an agency Chevron deference, “it matters not which of these things occurred.”
In other words, in harmony with Gluck and Bressman’s findings, Chevron recognized that ambiguity can come from many sources. And since we cannot know, even now, why Congress leaves gaps in any particular statute, the Court felt it could fill the void with a presumption that makes sense of the relative institutional competencies of the agency and the reviewing court. In other words, in the absence of any firm indication of relevant legislative intent, the Court ascribed to Congress what the Court regarded as reasonable choices about how to allocate interstitial lawmaking authority. That focus on relative institutional competence has been evident in every one of the post–New Deal deference regimes embraced by the Court.
Second, other findings confirm how difficult it is to discern a subjective legislative intention about a topic such as the appropriate trigger for deference. The Gluck and Bressman survey revealed that staffers found many different factors “relevant” to their intention to delegate. But the respondents did not rank or weight the multiple factors that they found relevant. Many of the factors—including important ones such as the presence of a major question or the agency’s role in drafting—were deemed relevant by far fewer than all of the staffers surveyed. Hence, if 60% of the staffers do not intend to delegate power over a major question but 40% have a different view, how can an interpreter know which type of staffer did the drafting or how to aggregate the disparate views of different staffers who might participate together in writing a statute? (The question itself assumes that staffer intent is legally relevant—a proposition that is itself a normative rather than factual one.)
In short, given the complexity, multiplicity, and unranked character of the factors deemed relevant, there is little reason to believe that a court would have an easy time applying these factors to determine a decisive legislative intent about the appropriateness of deference. In such cases, as in others, the determination of whether to defer will reflect an exercise of judicial discretion to decide if deference makes sense in the circumstances.
Third, the questions posed by Professors Gluck and Bressman left a critical ambiguity in the respondents’ answers. The Methods Appendix published with the two articles shows that, although Professors Gluck and Bressman invited staffers to add freely to their responses, the survey framed many of the specific questions about deference in terms of whether legislative drafters meant to give the agency gap-filling authority.
One question, for example, asked: “To what extent is it relevant to the agency’s gap-filling authority that the agency participated in drafting the legislation?”
Another gave multiple choices to the query, “[w]hat kinds of statutory ambiguities or gaps do drafters intend for the agency to fill?”
The framing of such questions potentially leaves in the background what may be the true choice faced by staffers whose texts will inevitably leave residues of ambiguity: “To the extent that statutory ambiguity leaves interpretive discretion, would you rather have that discretion exercised by an agency or a reviewing court exercising independent judgment to fill in these inevitable statutory gaps?” Given Gluck and Bressman’s conclusion that many staffers were reluctant to delegate gap-filling authority to courts,
it is difficult to know what the staff would intend if faced with the choice between conferring discretion upon an agency or a court—typically the choice when a statute does not speak clearly to a question that one or the other must implement. At a minimum, this ambiguity confirms Professor Dworkin’s sense that the identification of subjective legislative intent inevitably depends on the way an interpreter frames the question of what was intended.
Gluck and Bressman’s study reveals important things about staff attitudes toward judicial deference in administrative law. Most importantly, it confirms that staffers have diverse, complex, and (as yet) unweighted attitudes about the consequences of ambiguity and the desirability of delegation and deference. These findings seem to reinforce the Court’s starting from a baseline of intent skepticism when it has assessed the relative institutional merits of different deference regimes across the years.
For many years, intent skepticism has been an organizing feature in the debate over statutory interpretation. Legal Process theorists like Professor Strauss, no less than realists, textualists, pragmatists, and constructivists have started from the assumption that the absence of subjective legislative intent impels interpreters to think about interpretive problems in normative terms. And much of the debate has proceeded along the lines of asking which theories of interpretation best capture the relative institutional competencies and responsibilities that our system of government allocates among our lawmakers and implementers.
In recent years, a new empiricism has sought to look into the legislative process to learn facts that cut through what sometimes feels like stalemate in these debates. The findings have been illuminating. If nothing else, they compel modern textualists—who sometimes speak loosely about the justifications for their approach—to clarify the normative basis for their preferences. Most importantly, though, Gluck and Bressman’s findings force us to reckon with the fact that there is no way to derive legislative intent from the brute facts of the legislative process. Every decision about how to filter the facts requires a theory of adjudication, a normative theory of relative institutional roles. Peering inside Congress’s mind reveals that the more we know, the more we understand how hard it is to identify congressional intent.