Response  |  Volume 166

Contextualizing Shadow Conversations

By
166 U. Pa. L. Rev. Online 37 (2017)
Posted on Jul. 27, 2017

Response - Contextualizing Shadow Conversations










In Legislating in the Shadows, Professor Walker has deftly presented one side of the drafting conversation that occurs between agency officials and congressional staff. Looking through the window of technical drafting assistance—assistance typically provided through conversations responding to congressional staff requests without Office of Management and Budget (OMB) review or approval—Professor Walker sets forth and develops wide‐ranging and nuanced findings from agency participants in these conversations. His findings describe how agency officials understand their active and nonpublic role in the formulation of statutory text from its early stages. He then cogently analyzes certain implications from the standpoint of how agencies apply their interpretive authority and power.

There is much to admire in Professor Walker’s approach. Empirically, he identifies and unpacks an underappreciated aspect of contemporary federal lawmaking. Analytically, Walker offers a rigorous assessment of doctrinal implications from a statutory interpretation standpoint. He situates both the purposivist possibilities and the deference‐related risks in the context of other scholarly efforts, including several quite recent contributions.

I approach the drafting conversation described by Professor Walker from the opposite side—that of congressional staff. In doing so, I suggest that this conversation is complex and variable in ways that go beyond what might typically be understood by agency officials. Building off of this complexity, I explore certain implications of Professor Walker’s analysis, by examining the four principal reasons that agency officials offered for responding to every congressional request for technical assistance. While I share Professor Walker’s view that agencies gain special purposivist insights from their privileged participatory position in the drafting process, I am not convinced that this privileged position is due in any meaningful way to agencies’ role as shadow legislative drafters. Consequently, I remain skeptical that the shadow drafting role creates special risks of self‐aggrandizing interpretive powers, or that it materially contributes to existing concerns regarding the amount of deference agency interpretations should receive.


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