I blogged about this project earlier in the year, but I’m excited to report that I finally have a full draft of the article, Legislating in the Shadows, which is forthcoming in the University of Pennsylvania Law Review. This article documents a previously under-explored yet widespread practice—how agencies confidentially assist Congress in drafting statutes—and then explores the implications of that agency “legislating in the shadows” for administrative law theory and doctrine.
In this article, I report the findings of the first empirical study on the role of federal agencies in providing confidential “technical drafting assistance” on draft legislation that originates from Congress. This study, which the Administrative Conference of the United States (ACUS) commissioned and resulted in recommendations adopted by that federal agency and published in the Federal Register, builds on my prior empirical study Inside Agency Statutory Interpretation. Through interviews and surveys at some twenty federal agencies, I chronicle the substantial role agencies play in the legislative process and then focus on their legislating in the shadows via technical drafting assistance. The ninety-page report I submitted to ACUS details the practice, identifies common challenges and best practices, provides ten agency cases studies, and makes practical recommendations to improve the process.
This article, however, turns to the theoretical and doctrinal implications of agency legislating in the shadows, including how the phenomenon should make us rethink the conventional principal-agent bureaucratic model as well as reconsider approaches to agency statutory interpretation and judicial review thereof. In particular, I argue that the substantial role agencies play in drafting statutes in the shadows may provide additional support for eliminating Chevron deference altogether—or at least for adopting the Chief Justice’s call for a narrower, context-specific Chevron deference, as he articulated in his dissent in City of Arlington v. FCC and his opinion for the Court in King v. Burwell.
This study comes at a crucial time. As I noted elsewhere today, Justices on the Supreme Court as well as federal circuit judges have begun to express skepticism about the scope and validity of Chevron deference, Republicans in Congress have introduced legislation that would get rid of Chevron deference altogether, and scholars, policymakers, and commentators have been vigorously debating the future of the administrative state with judicial deference at the center of that discussion. No one, however, has been focusing on the critical fact that agencies are deeply involved in drafting the legislation that grants them lawmaking authority in the first place. This article seeks to remedy that.
You can download the current draft of the article on SSRN here. The article won’t be published until next year, so comments are particularly welcome.
This post is part of the Administrative Law Bridge Series, which highlights scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.