This Article juxtaposes the recent debates about statutory interpretation and the judicial uses of legislative histories with the relative quiescence over methods for interpreting agency regulations. The latter subject merits more attention than it has received given the relatively greater prevalence and practical import of legislative rules issued by administrative agencies as compared with statutory commands from the legislature. Unlike attempts to understand the legislature's original intent, whether by focusing solely on statutory text or considering extrinsic aids found in various pre-enactment explanatory materials, courts routinely defer to agencies' post-promulgation interpretations of the meaning of their regulations. This grants executive officials unnecessary license for creative reinterpretations of a legislative rule, inviting them to sidestep notice-and- comment rulemaking requirements.
The tradition of deference to agency interpretations of ambiguous regulations emerged at a time when courts and litigants had little information that might shed light on original agency intent, but, during the last thirty years, the quantity and accessibility of prepromulgation materials have exploded. In particular, agencies must issue detailed preambles and regulatory analyses to accompany final rules, and, at earlier stages of the rulemaking process, they may generate various proposals, advisory committee recommendations, and interagency memoranda that document some of the choices made by regulatory officials. More importantly, these materials pose less of a risk of manipulation than do legislative histories because agencies have a statutory obligation to explain new rules to the public and Congress, and, in the event of a direct challenge, they must defend the validity of their handiwork in the courts.
If judges focus on agency preambles and the rest of the administrative record compiled during rulemaking when resolving preenforcement and other direct challenges to the validity of a regulation, then these same materials should provide the best evidence of the agency's original intent when questions about the meaning of such regulations later emerge in a variety of contexts. This Article concludes that courts should embrace such valuable interpretive materials rather than rushing to defer to the dynamic interpretation that an incumbent administration finds most expedient. The various weaknesses that textualists have identified with intentionalism as a method of statutory construction need not trouble a court when it must interpret an unclear agency rule.
Divining Regulatory Intent: The Place for a "Legislative History" of Agency Rules,
51 Hastings L.J. 255
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