Divining regulatory intent: The place for a "legislative history" of agency rules

This Article juxtaposes the recent debates about statutory interpretation a nd the judicial uses of legislative histories with the relative quiescence over methods for interpreting agency regulations. The latter subject merits more attention than it has received given the relatively greater prevalenc e and practical import of legislative rules issued by administrative agenci es as compared with statutory commands from the legislature. Unlike attempt s to understand the legislature's original intent, whether by focusing sole ly on statutory text or considering extrinsic aids found in various pre-ena ctment explanatory materials, courts routinely defer to agencies' post-prom ulgation interpretations of the meaning of their regulations. This grants e xecutive officials unnecessary license for creative reinterpretations of a legislative rule, inviting them to sidestep notice-and-comment rulemaking r equirements. The tradition of deference to agency interpretations of ambiguous regulatio ns emerged at a time when courts and litigants had little information that might shed light on original agency intent, but, during the last thirty yea rs, the quantity and accessibility of prepromulgation materials have explod ed. In particular, agencies must issue detailed preambles and regulatory an alyses to accompany final rules, and, at earlier stages of the rulemaking p rocess, they may generate various proposals, advisory committee recommendat ions, and interagency memoranda that document some of the choices made by r egulatory officials. More importantly, these materials pose less of a risk of manipulation than do legislative histories because agencies have a statu tory obligation to explain new rules to the public and Congress, and, in th e event of a direct challenge, they must defend the validity of their handi work in the courts. If judges focus on agency preambles and the rest of the administrative reco rd compiled during rulemaking when resolving pre-enforcement and other dire ct challenges to the validity of a regulation, then these same materials sh ould provide the best evidence ofagency's original intent when questions ab out the meaning of such regulations later emerge in a variety of contexts. This Article concludes that courts should embrace such valuable interpretiv e materials rather than rushing to defer to the dynamic interpretation that an incumbent administration finds most expedient. The various weaknesses t hat textualists have identified with intentionalism as a method of statutor y construction need not trouble a court when it must interpret an unclear a gency rule.