Document Type
Article
Publication Date
4-2025
ISSN
0040-4411
Publisher
University of Texas School of Law
Language
en-US
Abstract
In its decision overruling the Chevron doctrine—which directed judges to accept an agency’s reasonable interpretation of ambiguous statutory language—the Supreme Court declares: “[A]gencies have no special competence in resolving statutory ambiguities. Courts do.” This Article shows why this statement exhibits a profoundly blinkered judicial hubris. Our interview-based empirical study, involving dozens of agency officials across the administrative state, shows agencies’ special, indeed unique, competence in working with statutes to make democratic enactments real.
Agencies, we show, act as a statute’s custodians, managing the statutory regime over a life cycle that exceeds any single governing coalition. Borrowing ideas from private law, we argue that agency officials act as if they owe their statutes duties of loyalty and care. The assumed duty of loyalty pushes agencies to serve the best interests of the statutes they manage. They ground their work in statutory text and are guided by a sense of agency mission—an enduring but evolving understanding of the agency’s overarching goals. In fulfilling their duty of care, agency officials take the steps they see as reasonable for the purposes of effectuating their statutes. Agencies approach statutes from a range of perspectives, taking into account the changing realities of the regulated world; the views and interests of regulated publics; the positions of Congress’s members and committees; the preferences of presidents and their appointees; and the rulings—and likely future conclusions—of courts. Agencies thus have a diversified approach to working with statutes, guided by enduring texts and missions as well as more transitory views, interests, doctrines, and facts.
Because agency work is purpose driven and consequentialist, permeated with the goal of producing workable policies, we argue that agencies provide a unique site for the pluralistic contestation that republican democracy requires. Agencies play a critical role in democratic governance because they ensure that statutory enactments become real. As our research makes clear, neither courts nor Congress can match agencies’ capacity to make long-term, informed, and accountable policies about specific issues. As we show, agencies’ work with statutes constitutes one of the most important and consistent ways in which our system resolves the dead-hand problems of democratic governance, balancing the need for stability and continuity with the need for adaptation and change.
From these conclusions flow a series of implications. First, statutory interpretation scholarship should leave its juricentric perspective behind and incorporate and prioritize the central role and practices of agencies. Second, democratic governance requires ensuring that agencies perform their functions well, which in turn underscores the need not only to bolster some of the responsive practices we bring to light, but also to defend agencies’ existence in the face of a presidential administration that would diminish or destroy many of them. And finally, recent developments at the Supreme Court also put the critical democratic functions of agencies at risk. The Court has increasingly stepped in to make judges the arbiters of policy, undermining Congress’s ability to effectuate its democratic decisions and project them into the future. Though we have no illusions about the current Court’s willingness to rethink the mistaken empirical assumptions behind its precedents limiting agencies’ work with statutes, we offer an alternative doctrinal framework for the future intended to capture the essential role of agencies within our system of government.
Recommended Citation
Anya Bernstein & Cristina Rodriguez,
Working with Statutes
,
103
Texas Law Review
921
(2025).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4258
