Amy Semet: How Should Agencies Interpret Statutes?

How should administrative agencies interpret the statutes that they are charged to interpret? In my research, forthcoming in an article in Minnesota Law Review this spring that contributes to the growing body of literature empirically examining the administrative state, I examine how one specific U.S. administrative agency—the National Labor Relations Board—interprets the National Labor Relations Act, the labor law that governs administrative labor law in the U.S.  I surveyed several thousand cases from 1993 through 2016 during the Clinton, Bush and Obama presidencies to undercover what tools of statutory interpretation the agency uses in its review of its governing statute. In the cases where the Board interprets the statute, I discover some interesting patterns. Overall, I find there to be no ideological coherence to statutory interpretation as Board members of both parties regularly use both textualist and purposive methods. Given the study spans a near 25-year time span, the methods of statutory interpretation most in favor also changes over time, with the Board in recent times relying more on broad policy pronouncements to interpret the statute with reliance on legislative history being of lessened importance.

The study raises the question of how an administrative agency should interpret its governing statute. Scholars debate whether agencies should interpret statutes the same way as a court would. Administrative agencies in the U.S. are a creature of executive influence, and one might very well expect that the agencies should dynamically interpret the statute in line with the wishes of political principals like the president cabined only by the plain language of the text. As such, unlike courts who are more constrained by norms like stare decisis, it is perfectly acceptable and even desirable for an agency to not necessarily be consistent in how it interprets the very same statute, given that the agency must be attuned to changing political realities. For instance, the NLRB has changed whether graduate student teaching assistants at universities should qualify as “employees” under the Act. Boards during Republicans administrations read TAs out of coverage under the statute while Boards dominated by Democrats consider TAs as coming within the statute’s broad ambit. While these changes no doubt create confusion at universities trying to fashion policies with respect to their graduate student workforce, such an interpretation is compatible with a theory of statutory interpretation that emphasizes democratic accountability at the expense of coherence or stability.

The study also raises questions on how different statutory methods may work differently in the administrative law context. For instance, courts commonly employ precedent to infuse statutory meaning in pursuit of the twin aims of stability and coherence. But when agencies rely on precedent to the exclusion of other methods their attempt to arrive at a stable interpretation may come at the expense of democratic accountability. At the same time, however, the Board’s reliance on traditional tools of statutory interpretation like selective incorporation of legislative history, precedent or textual canons may disguise activist policymaking. As another example, an agencies’ reliance on textual canons that assume “like” terms in the same statute or other statutes should be interpreted similarly may be inapposite in the modern administrative context. The fiction that the bicameral U.S. Congress—a body that does the bulk of its work through decentralized committees and subcommittees— consciously considers how statutes across time and across substantive area fit together does not reflect reality in the field of administrative law in the U.S.

Finally, the study poses the question of how an agency should actually interpret a statute. One view is that an agency should embrace its role as an expert and rely on its substantive law expertise to infuse broad statutes with meaning. Unlike in some other countries, an agency like the NLRB has no economic arm to inform the agency on the ramifications a particular statutory interpretation will have on the labor market. As such, when the Board uses the language of policy to inform meaning of a statute, it does so without any real evidence other than Board member’s opinion of the practical ramifications of its ruling. This makes it impossible for the Board to be able to fulfill its mission of carrying forth congressional intent in a truly informed fashion. The time may also be ripe for the NLRB to embrace rulemaking as opposed to adjudication to make decisions on matters. For example, instead of relying on case-by-case adjudication to decide whether graduate student TAs are employees, make the process more transparent, informed and inclusive by relying on rulemaking to interpret commonly adjudicated terms.

The study was limited to the study of a single agency—the NLRB—which is notoriously a more partisan agency than most in the United States. It is unclear how the findings would carry over to an agency that has historically been more divorced from political influence. Moreover, it would be interesting to see how agency statutory interpretation varies among countries that do not have a separation of powers/checks and balances system. The role that an administrative agency has within the broader scope of government may be somewhat different in the U.S. than in other countries, and as such, it may be that agencies in those countries have different patterns of statutory interpretation. In all, especially given more recent advances in machine learning that make the study of statutory interpretation easier to do computationally, further analysis of how different agencies across different substantive areas and countries interpret statutes would do much to inform understanding of how the often vague language of statutes is translated into policy that informs everyone’s daily lives.

Amy Semet is a Lecturer at Columbia University.

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