In this post I explain why “Statements by Executive Branch Administrators” ranks 18th on my list of the “Top 21 Sources of Legislative History.” Click here for a brief overview of the basis for these rankings.
18. Statements by Executive Branch Administrators: Over the past century, referring to federal administrative agencies as the “fourth branch of government” has become somewhat cliché. This phrase, of course, refers to the increasingly prominent role that government agencies play in shaping our nation’s laws and policies. Such prominence is due in large part to the deference given by courts to statements of intent made by agency administrators when interpreting otherwise ambiguous statutes drafted by Congress.
Despite the Judiciary’s historical deference to Executive Branch administrators, a string of recent decisions urge judges to scale back the Executive and Judicial Branch’s influence over the lawmaking process, citing the Separation of Powers Doctrine. Accordingly, I predict that over the coming years courts will, with increasing regularity, disregard statements made in committees by Executive Branch administrators when trying to decide the intended meaning of an unclear statute, which is why I have ranked this source relatively low on my list of important sources of legislative history.
A. The Separation of Powers Doctrine
The Framers created a system of checks and balances designed to ensure that power did not become too concentrated in any one person or group within our government. To achieve this goal, the Constitution delegates the power to create laws to the Legislative Branch, the power to enforce laws to the Executive Branch, and the power to oversee the just application of laws to the Judicial Branch. In more formal circles, this is referred to as the Separation of Powers Doctrine.
Judges who wish to preserve this separation of power will frequently restrict their inquiry into the intended meaning of a law to statements and documents produced by the branch responsible for creating the law in question: the Legislature. However, with the recent proliferation of administrative agencies, Congress has delegated much of its lawmaking power to regulators who typically take orders from the Executive Branch. Additionally, an agency will often bear responsibility for adjudicating disputes that arise from the rules and regulations it creates and enforces. These disputes frequently turn on questions of whether an agency’s interpretation of a particular law—in carrying out the will of the Executive Branch—was reasonable. As a result, “the Executive branch exercises powers that are both legislative and judicial in nature” through its influence over administrative agencies.
B. Judicial Deference to Administrative Agencies
Over time, courts became increasingly willing to entertain arguments for a particular interpretation of a statute based on statements made not by members of Congress, but by relevant Executive Branch administrators, thereby blurring the traditional lines drawn by the Framers through the Separation of Powers Doctrine. In fact, one article points out that Congress frequently consults executive departments when drafting bills, and that “their opinions about bills they have drafted or supported are often noted in the Supreme Court’s discussion of legislative history.”
Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., which has been cited an impressive 11,467 times by federal courts, provides a perfect example of the Court’s willingness to substitute administrative intent for legislative intent. In Chevron, Congress had enacted a statute requiring builders to obtain permits before constructing new pollution-generating factories, which the statute ambiguously referred to as “stationary sources.” The administrative agency tasked with overseeing Congress’s new law—the Environmental Protection Agency (EPA)—clarified this term by creating a regulation limiting the scope of “stationary sources” to pollutant-emitting “building[s], structure[s], facilit[ies], or installation[s].” Rather than making up its own definitions for the ambiguous terms found in Congress's eco-friendly law, and rather than relying on statements of intent made by individual members of Congress, the Court deferred to the EPA's definition of "stationary sources."
From this decision emerged the "Chevron two-prong test," which was designed to help courts determine when deference to statements of legislative intent made by Executive Branch administrators in interpreting a law is appropriate. The Chevron two-prong test requires courts to first interpret a statute consistent with Congress's stated intent where such intent is clearly conveyed. The second prong applies in the event that Congress’s intent as to the “precise question at issue” is not clear, in which case courts must give “controlling weight” to the administrator’s statements of intent “unless they are arbitrary, capricious, or manifestly contrary to the statute.” Although such deference to the “fourth branch” of government muddles the Separation of Powers Doctrine, courts “have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.”
Although in Chevron, the statements of intent made by the administrative agency were delivered through a federal regulation, courts similarly defer to statements made by Executive Branch administrators elsewhere. For instance, when the Senate Committee on the Judiciary held a hearing in 2006 on the “Wartime Executive Power and the National Security Agency’s Surveillance Authority,” Senator Arlen Specter questioned then-Attorney General Alberto Gonzalez, which served as “the framework for [Congress’s] discussion” on how certain legislation concerning national security should be interpreted. Illustrating the Executive Branch’s influence over certain pieces of legislation like the Foreign Intelligence Surveillance Act, Senator Specter noted that “the beauty of our system is the separation of powers, the ability of the Congress to call upon the administration for responses, the response of the attorney general in being willing to come here today, and then the Supreme Court to resolve any conflicts.”
C. Renewed Respect for the Separation of Powers Doctrine
Despite the significant deference given to administrative statements of statutory intent in recent years, courts appear to be moving back towards the traditional separation of power envisioned by the Framers. As a result, in the coming years statements made by Executive Branch administrators are less likely to persuade judges to interpret ambiguous statutes in a manner consistent with the Executive Branch’s intended meaning. Courts will instead look exclusively to Congress to determine the meaning of a statute when its text is unclear.
D. State of Florida v. United States Department of Health & Human Services
Federal Judge Roger Vinson’s 78-page ruling in January 2011, which declared President Obama’s “Patient Protection and Affordable Care Act” unconstitutional, provides a perfect example of the reemergence of the Separation of Powers Doctrine. The opinion, which opens with a quote plucked from James Madison’s Federalist No. 51 extolling the virtues of the Separation of Powers Doctrine, cites a number of instances in which members of the Executive Branch clearly expressed their policy goals for legislative healthcare reform. Although the court acknowledged that these policy goals were noble and clearly conveyed, it nevertheless struck the Act down, stating: “It is Congress that should consider and decide these quintessentially legislative questions.” Because I believe this is only the first of many similar decisions to come that will wrestle power away from the Executive Branch, I have ranked “Statements by Executive Branch Administrators” relatively low on my list of important sources of legislative history.
The following lists the “Top 21 Sources of Legislative History” (1 = most important; 21 = least important):
- Conference Committee Reports
- Committee Debates and Bill Mark-ups
- Committee Reports
- The Status of the Person Speaking—Sponsor, Committee Chairman, Floor Leader, Etc.
- Accepted and Rejected Amendments
- Floor Debates
- Planned Colloquy
- Transcripts of Discussions at Committee Hearings
- Prepared Statements on Submission of a Bill, in Committee Hearings, and at the Time of Floor Debates
- Revised and Amended Statements
- Actions on and Discussions About Separate Bills on the Same Topic
- Prior Relevant Administrative Action or Judicial Decisions, with or without Congressional Acknowledgement
- Executive Branch Messages and Proposals Whether from the President, Cabinet Secretaries, or from Independent Agencies
- Analysis of Bills Legislative Counsel
- Analysis of Bills by Relevant Executive Departments
- Related Statutes, Provisions, and Terms (click here)
- Dictionaries (click here)
- Statements by Executive Branch Administrators
- Statements and Submissions by Lobbyists (click here)
- Subsequent or Prior Unrelated, but Conflicting Legislation (click here)
- Recorded Votes (click here)
 During the New Deal Era, President Roosevelt created a Committee on Administrative Management to study the organizational structure of the federal government. In its report, the committee referred to the increasingly prominent independent regulatory commissions as “a headless fourth branch of the government” characterized by its “haphazard deposit of irresponsible agencies and uncoordinated powers.” Report of President’s Committee on Administrative Management (Washington, D.C., U.S. GPO 1937).
 U.S. Const. Art. I, § 1.
 U.S. Const. Art. II, § 1.
 U.S. Const. Art. III, § 1.
 Cindy G. Buys & William Isasi, An “Authoritative” Statement of Administrative Action: A Useful Political Invention or a Violation of the Separation of Powers Doctrine?, 7 N.Y.U. J. Legis. & Pub. Pol’y 73, 89 (2003).
 William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 632, 633 & n.44 (1990) (citing a long list of Supreme Court opinions that refer to testimony given to Congress by administrators regarding various bills).
 This number was generated by performing a “Shepard’s Summary” on LexisNexis for Chevron and then limiting the results to citations by federal courts.
 467 U.S. 837 (1984).
 Id. at 840 n.1 (quoting 42 U.S.C. § 7502(b)(6)(a)(6)).
 Id. at 840 n.2 (quoting 40 C.F.R. §§ 51.18(j)(1)(I), (ii) (1983)).
 Id. at 844.
 Hearings before the Senate Committee on the Judiciary, 109th Cong. 2d session, Wartime Executive Power and the National Security Agency’s Surveillance Authority (Feb. 6, Feb. 26, & Mar. 28, 2006) (S. Hrg. 109–500).
 State of Florida v. U.S. Dep’t of Health & Human Servs., Case No. 3:10-cv-91-RV/EMT (Jan. 31, 2011).
 Id. The beginning of the opinion reads:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
 See, e.g., State of Florida v. U.S. Dep’t of Health & Human Servs., at 68 (“In speech after speech President Obama emphasized the legislative goal was ‘health insurance reform’ and stressed how important it was that Congress fundamentally reform how health insurance companies do business, and ‘protect every American from the worst practices of the insurance industry.’” (citing Remarks of President Obama, The State of the Union (Jan. 27, 2009))).
 Id. at 74.