In this “age of legislation,” theories of how judges should construe statutes have received considerable attention. This focus on judges, however, fails to appreciate that most of the government’s statutory construction is by administrative agencies. And because courts are expected to defer to agency constructions of statutes, agencies often have the final say on what a statute means. “Absent judicial intervention, ‘the law’ is what agencies say it is.” Most scholarship addressing administrative agencies and the construction of statutes, though, concerns the level of deference the judiciary should give such constructions, not the methods of statutory construction that are, or should be, used by administrative agencies.
This Article addresses statutory construction by the National Labor Relations Board (“NLRB” or “Board”), the agency that administers the National Labor Relations Act (“NLRA” or “Act”). Of course, most Board cases will not require it to use a specific method of statutory construction. Usually the Board’s task will be to apply its precedent to the facts of the case. There will, however, be some cases in which the outcome depends on the method of statutory construction used by the Board.
But how should the Board approach statutory construction? Should it approach this task like a court, and, if it fails to do so, is it acting illegitimately? Should it approach this task in some manner different from a court, and, if it acts like a court, is it failing to do its job? And how do Board members approach statutory construction in practice? If they approach it like a court, do Republican members apply a method of statutory construction commonly associated with conservative jurists and Democratic members a method commonly associated with liberal jurists?
This Article attempts to answer these questions. Part I discusses the Board and how it functions. Part II discusses the primary competing theories of statutory construction that are currently advocated by jurists: (1) textualism, which focuses primarily on the statute’s text, and which is generally associated with conservative jurists such as Justice Antonin Scalia; and (2) intentionalist theories, which focus on Congress’s intent or the statute’s purpose, and which are generally associated with liberal jurists such as Justice Stephen Breyer.
Part III discusses administrative agencies and statutory construction and demonstrates that administrative agencies should not use any of the theories of statutory construction currently advocated by jurists, other than to determine if Congress’s intent on the interpretive question is clear and, if not, to identify permissible constructions of the statute. After identifying the permissible constructions of the statute, an agency, instead of using any of the theories of statutory construction currently advocated by jurists, should eschew interpretive tools, such as examining statutory text and congressional intent (except when necessary to determine the statute’s general purpose), and should select the interpretation it believes best promotes the statute’s purpose.
However, because no statutory purpose should be pursued at any cost (and thus relevant policies and principles external to the statute must be identified), and because a statute will often have competing purposes (the relative importance of which were not clearly specified by Congress), an administrative agency must assign weight to those purposes, policies, and principles. This in turn means an agency in many cases should, and will, select the construction it believes is best for society. This model of statutory construction gives an administrative agency more discretion than any of the theories of statutory construction currently advocated by jurists, and essentially gives the agency lawmaking power when construing a statute.
Part IV, drawing on the model of administrative agency statutory construction advocated in Part III, addresses how the NLRB should approach statutory construction. Part V analyzes two recent and prominent Board decisions involving statutory construction that were each decided three-to-two along party lines —Brown University and Oakwood Healthcare, Inc.–and addresses the methods of statutory construction used by the Board members. The analysis of these cases shows that the Board members approached the task of statutory construction like a court, using judicial methods of statutory construction. The analysis also shows, however, that the individual Board members applied inconsistent methods of statutory construction in the two cases, and thus Republican Board members did not consistently apply a conservative method of statutory construction and Democratic members did not consistently apply a liberal method of statutory construction.
Part VI concludes that the Board members in Brown University and Oakwood Healthcare, Inc. selected the method of statutory construction that reached the policy result they believed was best. I argue that, while it is unlikely Board members will change this practice, the Board would increase its legitimacy if it abandoned judicial methods of statutory construction (except to determine if Congress’s intent on the interpretive question is clear, and, if not, to identify the permissible constructions) and openly based its decisions on policy grounds.