Statutory Interpretation from the Inside - an Empirical Study of Congressional Drafting, Delegation, and the Canons

By Cluck, Abbe R.; Bressman, Lisa Schultz | Stanford Law Review, May 2013 | Go to article overview

Statutory Interpretation from the Inside - an Empirical Study of Congressional Drafting, Delegation, and the Canons


Cluck, Abbe R., Bressman, Lisa Schultz, Stanford Law Review


2. Chevron is not a reason for ambiguity

Our respondents did not strongly identify Chevron as an affirmative reason to leave an ambiguity. They told us that decisions to leave statutory terms ambiguous are typically made without regard to whether the courts will later defer to an agency interpretation. Almost half of our respondents (45%) expressed agreement with the statement that the deference rules allow drafters to leave statutory terms ambiguous because they know that agencies can fill the gaps. But 15% of that 45% (and 28% of all 137 respondents, including some respondents who did not agree with this statement about the deference rules) offered comments specifically directed at resisting the notion that Chevron itself was the reason that drafters leave aspects of statutes ambiguous. They stated, for example, "it's about punting to the agency and not about Chevron in particular, but you do know the agency can fill the gaps." (346) To be sure, respondents were quick to acknowledge the prevalence of ambiguity in statutes, and 91% reported that one reason for statutory ambiguity is a desire to delegate decisionmaking to agencies. (347) But an even greater number of our respondents also identified reasons apart from and unrelated to Chevron that account for statutory ambiguity, including lack of time (92%), the complexity of the issue (93%), and the need for consensus (99%). (348) "It's not because courts give deference," one explained, "but it's often intentional for other reasons. There are multiple reasons that statutes are ambiguous, sometimes political, getting consensus, sometimes quite intentional because regulators have the expertise and things get worked out better by the agency." (349) These are the reasons for ambiguity that the Court identified in Chevron; it appears that those remain the reasons for ambiguity. In other words, for our respondents, Chevron does not appear to have increased the likelihood of ambiguity or its use as an additional signal that drafters were not using before the Court's decision.

What we take away from these findings is that Chevron now seems to be a relatively fixed point in many of our respondents' drafting practices, but that the doctrine's assumptions are not entirely reflective of their intent. While most of our respondents indicated that they would think about agency delegation even in the absence of these canons, our data suggest that Chevron itself encourages more thought about the questions at issue and how specific statutes should be. At the same time, for our respondents, Chevron itself does not seem to be a typical reason for ambiguity. Rather the reasons for ambiguity remain those that the Court identified in Chevron.

We note a parallel to our observation about dictionary use. We did not ask respondents how they signal ambiguity or how they would define "ambiguity" if asked. Given that the Court has recently used the Chevron doctrine in cases concerning the meaning of words such as "charge," "percentile," and "student," (350) it seems unlikely here too that even those drafters who would use ambiguity as a signal would always--or often--be able to predict which words will ultimately become the cause of dispute. One reason this concern may not have received much previous attention is because most judges and scholars have assumed that Chevron's primary assumption--that Congress uses ambiguity to signal delegation--is a fiction in the first place. But our findings indicate that at least some staffers do seem to draft in Chevron's shadow. The potential feedback loop that we have identified faces an obstacle, however, if the length of Chevron's shadow is ultimately unpredictable.

B. Mead and Other Signals of Delegation as Reasonable Approximations

As mentioned above, our drafters were not familiar with Mead by name, undermining any argument that Congress has "received the message" of what the Court is looking for in that decision. …

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