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

Abstract

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