Federal Agencies in the Legislative Process: Technical Assistance in Statutory Drafting

Abstract

Federal agencies draft statutes. Indeed, they are often the chief architects of the statutes they administer. Even when federal agencies are not the primary substantive authors, they routinely respond to congressional requests to provide technical assistance in statutory drafting. Yet despite their substantial role in the legislative process, our understanding about how agencies interact with Congress is greatly undertheorized and perhaps even less understood empirically. This Report, which was commissioned by the Administrative Conference of the United States (ACUS), explores the latter role of federal agencies in the legislative process: the provision of technical assistance in statutory drafting.

To better understand the technical drafting assistance process, the Author met with agency officials at some twenty executive departments and independent agencies for a total of over sixty hours of interviews. Ten of these agencies agreed to participate on the record: the Departments of Agriculture, Commerce, Homeland Security, Education, Energy, Health and Human Services, Housing and Urban Development, and Labor as well as the Federal Reserve and the Pension Benefit Guaranty Corporation. Subsequent to the interviews, the participating agencies responded to an anonymous, forty-question follow-up survey. The Report presents the key findings from this study, identifies the best practices that certain agencies have developed to address these challenges, and proposes recommendations for ACUS to consider. These recommendations focus both on internal agency practices to improve the technical drafting assistance process and external practices to strengthen agencies’ relationship with Congress in the legislative process.

Keywords: administrative law, Congress, statutory drafting, technical drafting assistance, legislative counsel