Michigan State Law Review
In this short symposium contribution, I take up this invitation to examine the relevance of the agency's policymaking form to its approach to statutory interpretation. The core point I wish to advance is a relatively basic one--namely, that an agency's approach to statutory interpretation is in part a function of the policymaking form through which it acts. My strategy is to examine two of the most important policymaking forms--notice-and-comment rulemaking and formal adjudication--and to argue that the considerations that distinguish agency and judicial interpretation have a markedly different place in these two agency policymaking forms. For purposes of exposition, I focus on two dimensions that distinguish agency and judicial statutory interpretation: (1) the role of political influence in general, and presidential direction in particular; and (2) the role of internal management constraints, and considerations of budget in particular.
Kevin M. Stack,
Agency Statutory Interpretation and Policymaking Form, 2009 Michigan State Law Review. 225
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/215