STATUTORY INTERPRETATION FROM THE AGENCY PERSPECTIVE Amy Semet* How do administrative agencies interpret statutes? In recent there have been both increased calls to empirically examine the administrative state as well as renewed attention to engage in a more refined analysis of statutory interpretation more generally. Despite the detailed theoretical treatment on how agencies construe statutes, far less is known empirically about administrative statutory interpretation even though agencies play a critical role in how laws are interpreted. This Article looks behind the black box of agency statutory interpretation to review how administrative agencies use canons and other tools of statutory interpretation to decide cases. Surveying over 7,000 cases heard by the National Labor Relations Board (“NLRB”) from 1993-2016, I analyze the statutory methodologies the Board used in its decisions in order to uncover patterns of how the Board interprets statutes over time. Overall, I find no ideological coherence to statutory methodology. Board members largely interpret statutes to advance a policy agenda, switching between textualist or purposive methods depending upon the partisan outcome sought. Board members often use statutory methodologies to dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on vague pronouncements of policy or practical implications and less on precedent or legislative history. Moreover, despite scholars arguing that agencies should interpret statutes differently than courts, in practice, this study indicates that the NLRB interprets its governing statute using the very same tools than a court would. After analyzing the empirical data, I set forth policy recommendations for how agencies should interpret statutes. The balance required — between policy coherence, stability and democratic accountability — is fundamentally different in the context of agency statutory interpretation than for interpretation by a judicial body. Statutory interpretation at the NLRB is too judicialized and too reliant on appellate and Supreme Court precedent in infusing meaning to vague statutory directives. Its use of certain textual canons of construction is out of step with how Congress actually drafts statutes and the cherry-picking of a legislative history made nearly 75 years ago to advance ideological arguments seems misplaced in the current political climate. Rather than acting like a court, adjudicative
about text, a result statistically significant at 99% confidence. We see policy battles being much more common during Democratic administrations. There was indeed a statistically significant and noticeable decline in the use of policy by Republican-dominated Boards; whereas 44% of Republican Boards used policy as the primary interpretive tool during the Clinton years, that figure dropped to 18% in the Bush administration, with Republican Board members turning instead to relying more on text. Note should also be made of the decline of the use of precedent over time. Whereas we see precedent battle being quite frequent during the Clinton years, in recent years, policy battles have replaced precedent battles as the lightening rod between partisans on the Board. Table 11: Dueling Methodologies, by Majority of Panel and Administration T>P P>T Policy T>T Precedent Statute Dem. Maj/Clinton 6 13 50 0*** 25 6 Rep. Maj./Clinton 0 0* 44* 0 56 0 Dem. Maj./Bush II 14 14 14 43*** 13 0 Rep. Maj./Bush II 18 35* 18* 0 29 4 Dem. Maj/ 25 13 38 13*** 14 0 Rep. Maj./Obama 0 100* 100* 0 0 0 Figure 13 In addition to the overall method, the Board also duels over different methodologies. Each case can have multiple methodologies; for instance, both the majority and dissent may “duel” on legislative history, text and policy. We see that the majority and the dissent duel in most cases, at least in part, on policy (86%), though in most cases policy considerations are a secondary factor to consider to buttress either a text-based or argument. But they also often “duel” on textual meaning (33%), at least in part. Dueling over text almost always occurs if there is a Republican majority. In most cases these duels on textual meaning take one of three forms: 1) one side argues for an expansionist interpretation of a term while another side contends that the term should be interpreted more narrowly or argues that policy considerations should predominate; 2) one side argues that certain Latin/language canons should be applied to inform the textual meaning of the term while the dissent feels the opposite; or 3) one side feels that the text’s meaning is plain while the other feels that it is ambiguous.