Christopher J. Walker (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Faithful Agency in the Fourth Branch: An Empirical Study on Agency Statutory Interpretation (Stanford Law Review, Vol. 67, Forthcoming) on SSRN. Here is the abstract:
The Constitution vests all legislative powers in Congress, yet Congress grants expansive lawmaking authority to federal agencies. Such broad delegation creates a principal-agent problem in the modern administrative state. As positive political theorists have long explored, Congress intends for federal agencies to faithfully exercise their delegated authority, but ensuring fidelity to congressional wishes is difficult due to asymmetries in information, expertise, and preferences that complicate congressional control and oversight. Indeed, this principal-agent problem has a democratic and constitutional dimension, as the legitimacy of administrative governance may well depend on whether the unelected regulatory state is a faithful agent of Congress. Despite the predominance of lawmaking by regulation and the decades-long application of principal-agent theory to the regulatory state, we know very little about whether federal agencies are faithful agents.
This Article is the first comprehensive investigation into this black box of agency statutory interpretation. The Article reports the findings of a 195-question survey of agency rule drafters at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (Federal Communications Commission and Federal Reserve). Of the 411 officials sent the survey, 128 responded, and their responses shed considerable light on the tools and approaches they use to interpret statutes and draft regulations. The findings uncovered both challenge some theories on agency statutory interpretation while reinforcing others. As Congress, courts, and scholars gain more insight into how federal agencies use interpretive rules, legislative history, and judicial deference doctrines in agency statutory interpretation, the principal-agent relationship between Congress and federal agencies should improve as should the judicial branch’s ability to monitor and faithfully constrain lawmaking in the Fourth Branch.
