Today’s Ad Law Reading Room entry is “Working with Statutes,” by Anya Bernstein and Cristina Rodríguez, which is forthcoming in the Texas Law Review. Here is the abstract:

In its 2024 decision overruling the decades-old Chevron doctrine directing judges to accept an agency’s reasonable interpretation of ambiguous statutory language, the Supreme Court declares: “agencies have no special competence in resolving statutory ambiguities. Courts do.” This Article makes clear how profoundly blinkered an assertion of judicial hubris this statement is. Our interview-based empirical study, involving dozens of agency officials across the administrative state, shows how agencies work with statutes, evincing a unique competence-to make democratic enactments real. Agencies, we show, act as a statute’s custodians, managing the statutory regime over a lifecycle that exceeds any political governing coalition. Borrowing ideas from private law, we argue that agencies act as if they owe their statutes duties of loyalty and care. The duty of loyalty pushes agencies to serve the best interests of the statutes they manage. We show how agencies’ work with statutes is grounded in statutory text and guided by a sense of agency mission-an enduring but evolving understanding of the agency’s overarching goals. The duty of care requires agencies to take reasonable steps to make their statutes workable. They do so by taking into account the changing realities of the regulated world; the views and interests of regulated publics; the positions of Congress’s members and committees; the preferences of presidents and their appointees; and the rulings-and likely behavior-of courts.

As our research makes clear, neither courts nor Congress can match agencies’ capacity to make long-term, pluralistic, informed, and accountable policies about specific issues. Agencies, we show, are a primary way that our system resolves the dead-hand problems of democratic governance, balancing the need for stability and continuity with the need for adaptation and change. From these conclusions flow a series of implications. First, to truly understand statutory meaning, statutory interpretation scholarship should move past its juricentric perspective and focus on the practices of agencies. Second, our study suggests how to go about ensuring that agencies perform their democratic functions well, including by bolstering some of the participatory and responsive practices we bring to light. And finally, our work shows how recent developments at the Supreme Court put the critical democratic functions of agencies at risk. The Court has increasingly stepped in to make judges the arbiters of policy, undermining Congress’s ability to effectuate its democratic decisions, including by projecting them into the future. Though we have no illusions about the current Court’s willingness to rethink the mistaken empirical assumptions behind its precedents limiting agencies’ work with statutes, we offer an alternative doctrinal framework for the future intended to capture the essential role of agencies within our system of government.

Courts (and some commentators) often proceed from one of several caricatured depictions of how agencies implement statutes. Agency officials are described as opportunists looking to advance their own personal policy preferences. As nerds laser-focused on a set of arcane matters and resistant to political influence. Or, as Loper Bright might have it, as servants to the statute’s single best meaning—fulfilling their role by acting as a transmission belt for implementing congressional commands.

The beauty of “Working with Statutes” is that it reveals agencies to be kinda sorta doing all these things, but in much more subtle ways and often in combination. Agency officials attend to statutory text and the statute’s broader “mission,” but they also recognize when statutes are in need of completing. They bring expertise to bear, but while remaining responsive to a broad range of constituencies, including political officials. They seek to advance good policy, but their sense of good policy is shaped by a kind of role morality requiring them to be faithful stewards of the statutory regime in question. In painting this picture, Bernstein and Rodríguez explode the caricatures and create space for thinking about agency-driven statutory interpretation anew.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.