As Jerry Mashaw has remarked in the pages of the Administrative Law Review (Vol. 57, p. 537), “Inquiry into the empirical realities of agency interpretive practice can provide a crucial window on [agency statutory interpretation] and an essential step in the assessment of the legitimacy of administrative governance.”  Yet, to date, little work has been done to explore these empirical realities.  We know very little about how agencies approach statutory interpretation or whether they are faithful agents of Congress.  No doubt that opacity is due in large part to the fact that such information is not amendable to discovery by FOIA and agencies are otherwise not inclined to share internal practices that may implicate confidentiality or deliberative due process privilege.

This topic has intrigued me since my stint years ago on the Justice Department’s Civil Appellate Staff, and I have spent much of the last two years working on an empirical project on agency statutory interpretation. Leveraging every connection and network I have, I reached out to officials at every executive department, over 80 agencies and offices within those departments, and a dozen or so independent agencies.  Over the course of ninth months I had hundreds of meetings in person, by phone, and via email to solicit feedback on the survey instrument and enlist participation in the study.  Ultimately, the 195-question survey was administered 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).  In total, 128 agency rule drafters responded for a 31% response rate.  Their responses shed considerable light into this otherwise black box—including how federal agencies use the canons, legislative history, and administrative law doctrines when interpreting statutes and drafting regulations as well as how they view the principal-agent relationship between Congress and federal agencies, the role of federal agencies in the legislative process, and the judicial role in the regulatory state.