Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants-and even less about the consequences-of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the existing theories, and little on which to base new ideas about what ought to be driving the legislative decision.
This Article takes a new approach to the choice between judicial and administrative process. Using a real-world example of a delegation to courts-Title VII of the Civil Rights Act of 1964-I examine how the Supreme Court and the Equal Employment Opportunity Commission interpreted the statute over more than four decades of enforcement. The analysis confirms the importance of the choice of delegate, revealing substantial differences between judicial and agency interpretations of the statute. It also calls attention to some surprising similarities between the two institutions, both of which exhibited markedly stable decisionmaking in the face of political upheavals in Congress and the White House. The picture that emerges is far more complicated and context-dependent than the stylized models of prior work would allow-but so is the decision that Congress must make. By exposing the legal and political consequences of a delegation to courts in one area of federal law, this Article offers a richer and more nuanced understanding of a critical, but largely overlooked, question of institutional choice.
Margaret H. Lemos,
The Consequences of Congress's Choice of Delegate: Judicial and Agency Interpretations of Title VII,
63 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol63/iss2/2