Agency Legislative History

Abstract

No tool of statutory construction has drawn as much scholarly and judicial attention and controversy as legislative history. This Article shows that the standard account of legislative history fails to account for legislative history generated through agency-Congress legislative communications, which is often among the most relevant legislative history. These communications, which this Article terms “agency legislative history,” have important implications for theories and practice of statutory interpretation and agency delegation.

The account of agency legislative history provided here offers a new perspective on the legislative history debate and questions of how empirical realities of the legislative process should influence statutory interpretation. Agency legislative history also sheds new light on the ongoing debate over Chevron’s domain. Agency legislative history reinforces arguments in favor of deference to agencies by raising novel questions about courts’ institutional capacity to effectively uncover congressional deals, and by providing new reasons to believe that agencies may be better statutory interpreters than courts. At the same time, for the many judges skeptical of broad deference but unsure how to limit it, agency legislative history can allow for more narrowly tailored and empirically supported deference decisions that reflect the variety of ways legislation is made.