What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law. Which model of the judicial role justifies the use of canons that law writers know but deliberately do not apply.
But these kinds of arguments depend entirely on whether Congress is familiar with the rules used by the courts. The remainder of this section provides a brief sketch of the relevant theoretical and empirical landscape.
Faithful Agency, Fictions, and Empirics in Statutory Interpretation
F ictions ............................................................................................... 9 15
For those theorists, empirical research can influence whether those teachings are used in the future. The primary warning was against assuming that empiricism could answer all questions in the field.
Methodology: Our Survey of 137 Congressional Staffers
CONGRESS AND THE CANONS
Canons are used in virtually every case of statutory interpretation, and there are hundreds of them, but they don't all seem to be treated equally. Some are institutional – for example, that canons promote the judicial values of conformity and consistency;77 that they are the rules most easily used by judges and thus serve the function of judicial coordination;78 or that they convey an explanatory audiovisual function. responsibility to more competent institutions.79 Other justifications are normative-.
Overview of the Findings. A Spectrum of Canon Knowledge and Use
These charts compare respondents' use of canons when asked by name and underlying concept. But our respondents did not know all the canons in the same way or use them to the same extent.
Textual Canons: More Familiarity by Concept than by Name
- Concepts in use: expressio, noscitur, and ejusdem
- Canons known, but rejected: superfluities, consistent usage, and
- Federalism, preemption, and clear statement rules
- Lenity unknown by name
- Constitutional avoidance unknown but assumed
Expressio was also one of the most recognized text canons by name (along with the rule against redundancies). However, when asked about the rule by name, most of our respondents told us that they did not use it (several respondents made statements such as "we don't know any Latin"), although when asked about the concept they had already substantiated their use of the assumptions underlying it.
Do the Data Matter? Linking the Findings with the Normative
Textual rules as approximation canons and rejected canons
At least for our respondents, the judicial use of the noscitur and ejusdem rules has no effect on the legislative process. As a result, these canons do not apply to any of the publicly stated justifications for their adoption, based on the responses we received. An overwhelming number of our respondents told us that a more predictable legal application of the canons would change the way these canons would be drafted.
Finally, of all the canons studied, the federalism canon and the presumption against preemption (and Chevron, discussed in Part IV) provided the greatest evidence of a court-Congressional feedback loop for our respondents.
Alternative "Rule of Law'" Justifications: Coherence, Coordination,
LEGISLATIVE H ISTORY
No one doubts that the drafters of legislative history are aware of it or that they are writing it. As a result, textualists turn to canons (or dictionaries) before legislative history in their interpretive efforts. It is perhaps not surprising that our respondents valued legislative history over other sources, given that legislative history is the primary work product of committee staff.
Our respondents' emphasis on the usefulness of legislative history was not consistent with a view of legal interpretation similar to that of Justice Stevens or Justice Breyer.
Legislative History-Specific Delegation Concerns About Staff and
Second, while it is true that not all members of Congress formally vote on the legislative history, some respondents told us that members are more likely to vote (and that staff members will advise their members) based on reading the legislative history than on reading the statute itself .22 1. Instead, these committee members vote based on a "conceptual" document—a form of legislative history—that describes, in layman's terms, what the statute intends to do.2 2 2 Nor do our findings square with another functional argument based on the mandate. , namely that judicial reliance on legislative history encourages the preparation of legislation outside of the formal, constitutionally prescribed procedure.224.
A textualist approach is unlikely to diminish the production or importance of legislative history, because legislative history plays.
A Textualist Approach Is Not Likely to Diminish the Production or
- Legislative history as a toolfor congressional oversight of
- Legislative history as intracongressional communication
- Legislative history as political communication with the public
- Legislative history as a vehicle for details that are inappropriate
But 10% of our respondents also volunteered that the legislative history be used more genuinely by staff and members to explain, in layman's terms, what the bill does. Similarly, these respondents emphasized that legislative history plays an important institutional memory role when staff amend older legislation or draft legislation similar to earlier legislation, as they often do. Fourth, 6% of our respondents volunteered that legislative history is a crucial repository of legislative details that could not—or more interestingly—should not be included in the legislative text.
For example, they told us that legislative history is often necessary “to clarify and indicate intent in areas where legislative drafting is obtuse.
Legislative History as Evidence of Congressional Intent
The centrality of committee-produced legislative history
Reliability of various types of legislative history conference reports (71% VR; 22% ISR; 4% NR) ]* Committee reports in support. Our respondents were particularly reluctant to endorse legislative history created outside the committee system, by party leaders, or otherwise. Indeed, statements from the party leadership in support of the charter were considered less credible than the first statements in support of other members. 262.
Regarding the central role of committees, fourteen (10%) of our respondents believed that floor statements from the committee chair or ranking member, or the sponsor of the legislation, should be considered more reliable than other types of floor statements. 2 63 More generally, most respondents emphasized the reliability of the committee report compared to other pieces of legislative history.
Unorthodox lawmaking's relevance: distinguishing party leader,
While almost all of the legislative advisers we interviewed told us they don't draft legislative history—that is, they draft only the text to be passed—the only exception, we were told, is the context of budget appropriations. Legislative counsel assigned to appropriations legislation drafts the legislative history—a clear recognition of the textual importance of the legislative history in this unique context.2 75. Hill, the Court expressly relied on the fact that the relevant explanatory information was in the legislative history and not in the the text of the bill itself as a reason to disregard that information.2 80.
The bill is just a bunch of numbers."2 81 In cases like Tennessee Valley Authority, there was no other place for Congress to express its intent except the legislative history on which the Court refused to rely.282 .
Other factors: staffer involvement, timing, opposition, and
Our respondents also emphasized that there is a time window in which the legislative history is most reliable. The findings also support our observation about the expertise-based justification for legislative history consultation. Our respondents were mostly divided on the influence of the other factors we inquired about, with the exception of whether the fact that the legislative history was essential to the "deal" affected its reliability.
When the Court deals with such distant legislative history merely “for the sake of society, May 2013].
Conclusion: Smarter Judicial Use of Legislative History
THE ADMINISTRATIVE LAW CANONS
But the debate looks different here than it does in the context of the other canons. Reality shaping claims figure even more explicitly in the context of the other administrative law doctrines the Court has devised to qualify Chevron's broad presumption. Our respondents effectively validated the assumptions underlying almost all of the administrative law doctrines currently in play, even though they were apparently unfamiliar with the doctrines by name or as legal rules.
Thus, our findings suggest that, contrary to the assumption of most judges and academics,336 many of the so-called fictions of congressional delegation in Court cases may not be fictions at all.
Chevron and the Presumption of Delegation
Chevron is afeedback canon
Our respondents also told us that knowledge of the canon affects the degree of specificity they use when drafting. At the same time, most of our respondents told us that their knowledge of Chevron does not mean they intend to delegate whenever ambiguity remains in the finalized statutory language. Instead, they told us that, although vagueness sometimes signals intent to delegate, it often does not, and Chevron is not a reason for drafters to leave statutes vague.
Chevron does function for many of our respondents as a reminder of the consequences of ambiguity and as an incentive to think about the level of detail in a statute.
Chevron is not a reason for ambiguity
So, intriguingly, in the language of our typology, for our respondents, Chevron is a response canon that does not well approximate the way Congress drafts. Almost half of our respondents (45%) agreed with the statement that compliance rules allow drafters to leave statutory terms vague because they know agencies can fill in the gaps. What we take away from these findings is that Chevron now appears to be a relatively fixed point in the drafting practices of many of our respondents, but that the doctrine's assumptions do not fully reflect their intent.
While most of our respondents indicated that they would consider agency delegation even in the absence of these canons, our data suggest that Chevron itself encourages more thought about the issues involved and how specific the statutes should be.
Mead and Other Signals of Delegation as Reasonable Approximations
- Barnhart, agency participation in drafting, and divided
- Different subject matters also validated with nuances
- Major questions, preemption questions, and the obligation not to
- Delegation to state agencies implementingfederal statutes
Furthermore, 12% of our respondents did not focus on the topic, but on the nature of the problem. 34;In the penal code there is less deference than in others; more constitutional law comes into play.") In terms of special signal words, 41% of the forty-six respondents who mentioned such words specifically referred to the phrase "in consultation with ".
A search on March 18, 2013, of the combination of the words 'in consultation with' / p 'matter' returned seventy-five results, of which we determined thirty-eight to include multiple agencies that issue rules or regulations under a statute of alone.
Theoretical and Doctrinal Interventions
C hevron Step O ne
Our findings are also relevant to the ongoing debate about what courts should consider in step one of Chevron.43 1 Courts currently assess the relative clarity of text in step one, but our findings indicate that textual clarity is not always a reliable signal . of delegation. In addition, our drafters identified signals of delegation beyond the ambiguous text, such as the longstanding nature of the agency's interpretation, guidance in legislative history, and linguistic signaling conventions of intent to delegate, that might appear in otherwise unambiguous text. . Ministry of Education432 – to the surprise and disapproval of almost every other judge, even those who joined his majority opinion.433 In particular, he recognized that by focusing solely on the text of the statute, the Court ignored the signals of delegation that he saw in the context of the statute – including the long-standing nature of the agency's interpretation and the technical nature of the issue – as well as in the history of the statute, which shows the agency's participation in drafting the language itself turned out to be -.
Trinity, ignoring the plain meaning of the statutory text.4 37 However, our findings suggest that Judge Breyer was not wrong, and may even have underestimated the concern.
The obligation not to punt difficult questions in broader context
Recall that 94% of our respondents told us that the purpose of legislative history is to shape the way agencies interpret laws,438 and 21%. Our respondents were much more receptive to the notion of agencies than statutory interpreters, but again resisted the idea of empowering agencies without limitations. Our respondents confirmed the assumptions underlying a surprising number of administrative law doctrines.
The legislative history and many doctrines of administrative law continue to be under constant attack, but the assumptions underlying the legal use of these instruments were strongly validated by our respondents.
The Allure of Faithful Agency and Judicial Reluctance to "Make Law". 1017
For the pre-Erie conception of the common law as something to be discovered, not created, see Swift v. Nor did we investigate how outsiders' knowledge of the canons might trickle down into the final legislative product. These differences raise the additional possibility that the drafter's awareness of the canons is generational and changes over time.
The normative framework, which depends on the drafter's awareness and/or application of the canons and their concepts, may thus have to change with the generations.
A Normative Framework for Congress's Side of the Relationship
Interestingly, these are questions that were discussed in the context of constitutional law, not statutory interpretation. As we detail in a companion article, however, the theory of Congress as a faithful principal has its own set of operational problems. Most importantly, even taking into account the central role of legislative advisers' offices in the drafting process, there is currently no mechanism for coordinating drafting practices.
Supreme Court, fifty-three cases in the state's highest courts, and 352 cases in the courts of appeals.
