When the Judge is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History

As the other pages of this journal reflect, writing about statutory interpretation commonly builds on unarticulated assumptions about the occasion for interpretation, the identity of the interpreter, and the character of the interpreted text. In this paradigm, the occasion for interpretation is a litigated case – an episode has occurred for which the application of the statute is problematic. The interpreter is a judge, a person who resolves litigation – typically episodic, typically backwards – working outside of politics, and bearing no generic responsibility (that is, responsibility outside the decision of the case before her) for the statutory regime. And the interpreted text is imagined to have the characteristic of resolving the problem at hand – to interpret is to find the meaning in the statute that itself answers the question presented. For a large and increasing body of interpretations, however, these assumptions are false. These interpretations occur as an element of ongoing activity, as part of continuing and integrated courses of conduct determining and exercising authority; the interpreters are executive officials, administrative agencies with programmatic responsibility for implementing statutory regimes, and subject to oversight that may be political as well as judicial; and, finally, the interpreted texts are intransitive in character – rather than provide answers to the problems that induced it to act, the legislature has created official bodies to deal with those problems on a continuing basis, within parameters it sets by statute.This essay seeks to begin an examination of the difficulties that maybe created by using the paradigm of episodic, judicial interpretation of a determinate text when dealing with the very different world of the administered statute. Its immediate concern is with the implications of the recent judicial flight from reliance on legislative history in interpretation, yet more general problems also exist. The general problem that motivates this paper is one often worried about for judges, but that has particular difficulty and significance for administrative agencies – that of distinguishing successfully between the worlds of politics and law, and providing ourselves with some assurance that an agency will act in accordance with law. Politics has an open and conceded role in administrative government, as it does not for courts; and yet we also expect an agency to act according to law. Perhaps especially at a time when the abuses of political oversight and the political side of agency action are much in public view – the savings and loan debacle, and the scandals at the Department of Housing and Urban Development, for example – attending to how a rule of law culture might be maintained against these pressures is a useful exercise. The burden of this paper is that the use of legislative history may have an importance in the agency context for maintaining law against politics, however one regards its use at the judicial level