Jarrod Shobe
85 Geo. Wash. L. Rev. 451
The scope and power of the administrative state in implementing law is a
common theme in academic discussions and judicial decisions, but the role
that agencies play in drafting the laws that they implement has gone mostly
unexplored. Based on interviews with fifty-four agency staff who work on legislative
matters, this Article provides an unprecedented account of the role of
agencies in the legislative process. The interviews reveal that agencies are
deeply involved in drafting and reviewing statutory text before enactment, and
show that Congress often relies heavily on agencies’ significant legislative resources
and expertise. Respondents reported previously unnoticed external
and structural factors that affect the agency-Congress relationship in the legislative
process and provided important insight into the ways in which agencies
communicate with Congress during the legislative process. This Article argues
that these findings can provide judges and scholars with more accurate assumptions
about congressional intent to defer to agencies. This Article also
raises new questions about the President’s and Congress’s ability to monitor
and control the modern administrative state. It further shows that the legislative
drafting process is more fragmented than commentators have realized,
and that this fragmentation generally happens along agency lines. This Article’s
findings provide a more complete account of the complexity of the legislative
process and an initial framework for approaching foundational
questions raised by agency involvement in lawmaking.
