The Origins of Legislation

Abstract

Although legislation is at the center of legal debates on statutory interpretation, administrative law, and delegation, little is known about how legislation is actually drafted. If scholars pay any attention to Congress at all, they tend to focus on what happens after legislation is introduced, ignoring how the draft came to exist in the first place. In other words, they focus on the legislative process, not the drafting process. The result is that our account of Congress, the legislative process, and the administrative state is impoverished, and debates in statutory interpretation and administrative law are incomplete. This Article seeks to demystify important elements of the legislative drafting process. Descriptively, it provides a comprehensive typology of the origins of legislative drafts, outlining the many ways in which drafts emerge. At times, the descriptive insights are surprising: for example, when a committee drafts legislation in a bipartisan manner, it sometimes uses a “legislative notice-and-comment” process, sharing a draft publicly prior to its introduction so that stakeholders can review the draft and comment. At other times, the descriptive insights add substantial complexity to our accounts. For example, the executive often drafts legislation. This creates a principal-agent drafting problem between Congress and the Executive parallel to the principal-agent problem that emerges with delegation, but operating prior to a legislative enactment. The Article goes on to explain why members of Congress pursue different drafting processes and to explore the consequences of variety in legislative drafting for theories of statutory interpretation, for identifying reliable sources of legislative history, and for arguments about congressional delegation and judicial deference to agencies.

Keywords: legislation, regulation, statutory interpretation, administrative law