D. Theoretical and Doctrinal Interventions
2. The obligation not to punt difficult questions in broader context
the other canons that our study investigated, as well as for broader theories about the role of courts in interpretation. At the more granular level, the notion that the Court must use canons of construction to force Congress to deliberate on hard questions does not quite fit the picture that our respondents painted about their sense of obligation to resolve major policy questions. We recognize
434. See id. at 89-91 (majority opinion).
435. See id. at 90, 100.
436. See id. at 106 (Stevens, J., concurring); id. at 107 (Kennedy, J., concurring).
437. See id. at 108, 113-16 (Scalia, J., dissenting). Justice Souter joined only Part I of Justice Scalia's dissent. See id. at 123 (Souter, J., dissenting).
438. Q60f.
439. Q57.
440. Courts also might leave questions of whether the agency followed the instructions in the legislative history for "reasonableness" review under Step Two or arbitrary and capri- cious review.
1014 [Vol. 65:901
INSIDE STA TUTOR Y INTERPRETA TION
that our respondents' answers on this point may have been self-serving; that is, that they might have been reluctant to admit that they "punt." And it certainly seems to be the case that Congress cannot help but leave certain matters unre- solved--our findings on delegation corroborate that fact-but it seems less the case that any consequential ambiguity is the result of a deliberate attempt to push big decisions onto courts and agencies.
Even if one were to question the sincerity of our respondents' claims that they do not punt big decisions, they were emphatic about the branch to which they do intend to delegate when ambiguity is inevitable or delegation is other- wise desired. As discussed in the companion Article, our respondents told us that courts are not their intended delegates and that they would rather have dif- ficult questions returned to Congress than resolved by judges. Our respondents were much more receptive to the notion of agencies as statutory interpreters, but again resisted the notion that they delegated to agencies without limitation.
The assumptions underlying a surprising number of the administrative law doctrines were validated by our respondents. Why the Court has done such a good job at approximating how Congress works in the administrative law con- text is an interesting question, particularly because those administrative law doctrines have come under much more vigorous attack than the other canons that our study did not validate to the same degree. We consider this comparison and offer some other concluding thoughts in the Conclusion, which follows.
CONCLUSION: COMPARING THE CANONS, THE ENDURING ALLURE OF FAITHFUL AGENCY, AND CONGRESS AS "FAITHFUL PRINCIPAL"
Examining the relationship between congressional drafting practice and the Court's interpretive doctrines reveals, at best, only a partial picture of how fed- eral statutes are put together. Our respondents emphasized many other influ- ences on the drafting process that legal doctrine does not take into account. We alluded to some of those influences in the preceding pages, including the cen- tral role of Legislative Counsel in drafting text, the division of Congress into committees, the type of statute and legislative process, and the personal and professional differences across drafters and agency personnel. We explore those influences and many others in the companion Article. There, we also ad- dress the ability of doctrine to incorporate the kind of real-world detail uncov- ered by our study, as well as the theoretical implications for textualism, purposivism, and pragmatism of our respondents' rather limited view of the role of courts in statutory interpretation (both by themselves and contrasted with agencies). Before proceeding to those topics, however, we wish to offer some brief, hopefully unifying, reflections on the many findings already pre- sented in these pages.
May 2013] 1015
STANFORD LAW REVIEW A. Comparing Canons
Returning to our typology of canon awareness and use, the Table below summarizes where we are thus far:
TABLE 3
Empirical Survey of 137 Congressional Staffers 2011-2012:
Typology of Canon Awareness and Use
Awareness
[
No AwarenessFeedback Canons e federalism
preemption Chevron
perhaps constitutional avoidance
Approximation Canons
" expressio unius
" noscitur a sociis
" ejusdem generis
" constitutional avoidance
" Mead
" Barnhart
* major questions
* subject-matter-related delegation doctrines
" perhaps administrative preemption
Non-Use Rejected Canons Disconnected ("Loose")
* whole act / whole code Canons
presumptions of o clear statement rules consistent usage 9 perhaps lenity e superfluities
* dictionaries
*
ban on legislative historyThe canons that have been least controversial in the courts and scholarship seem to raise the hardest questions viewed through the lens of our study. Legis- lative history and the many administrative law doctrines continue to come un- der sustained attack, but the assumptions underlying judicial use of those tools were strongly validated by our respondents. In contrast, the textual and substan- tive canons are widely used by judges of all interpretive stripes, but our study reveals that the normative bases for the application of these rules are exceed- ingly fuzzy and sometimes not apparent at all.
We can only hypothesize about the causes of these differences. Some of the differences may relate to the origins of the respective canons. For example, canons with older pedigrees, like the rule of lenity, or canons that are general-
1016 [Vol. 65:901
A
INSIDE STA TUTOR Y INTERPRETA TION
ized presumptions about drafting that go back to Blackstone, like some textual canons, were not originally tailored to the mold of our modem Congress in the same way as the administrative law doctrines or the federalism canons44 1 seem to be. The number of Justices with administrative law experience appointed over the past several decades may further help to explain why the Court has been so apparently good at approximating how Congress delegates.
With respect to the feedback canons, it also seems possible that the Court is speaking "more loudly" on some questions than others, making the doctrines that emerge from them impossible for drafters to ignore. One hallmark of the Rehnquist Court was that it brought federalism to the forefront of statutory in- terpretation, and of course the "Chevron revolution" occurred at almost the ex- act same time. In light of that history, perhaps it is no coincidence that the fed- eralism canon, the presumption against preemption, and Chevron were the most known to our respondents. The federalism doctrines and Chevron are also doc- trines through which Congress allocates government authority. As such, these may be high-stakes matters for drafters that are more frequently brought to their attention by the states and interest groups likely to be affected by the allocation.