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
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
semet_statutory_interpretation.docx