Agencies as Legislators: An Empirical Study of the Role of Agencies in the Legislative Process

85 Pages Posted: 29 Aug 2015 Last revised: 8 Sep 2021

See all articles by Jarrod Shobe

Jarrod Shobe

Brigham Young University - J. Reuben Clark Law School

Date Written: February 23, 2016


The scope and power of the administrative state in implementing law is a common theme in academic discussions and judicial decisions, but the role that agencies play in drafting the laws that they implement has gone mostly unexplored. Based on interviews with fifty-four agency staff who work on legislative matters, this Article provides an unprecedented account of the role of agencies in the legislative process. The interviews reveal that agencies are deeply involved in drafting and reviewing statutory text before enactment, and show that Congress often relies heavily on agencies’ significant legislative resources and expertise. Respondents reported previously unnoticed external and structural factors that affect the agency-Congress relationship in the legislative process and provided important insight into the ways in which agencies communicate with Congress during the legislative process. This Article argues that these findings can provide judges and scholars with more accurate assumptions about congressional intent to defer to agencies. This Article also raises new questions about the President’s and Congress’s ability to monitor and control the modern administrative state. It further shows that the legislative drafting process is more fragmented than commentators have realized, and that this fragmentation generally happens along agency lines. This Article’s findings provide a more complete account of the complexity of the legislative process and an initial framework for approaching foundational questions raised by agency involvement in lawmaking.

Keywords: Legislation, Legislative Process, Administrative Law, Agencies, Congress, OMB

Suggested Citation

Shobe, Jarrod, Agencies as Legislators: An Empirical Study of the Role of Agencies in the Legislative Process (February 23, 2016). 85 GEO. WASH. L. REV. 451 (2017), Available at SSRN: or

Jarrod Shobe (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

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