GUARDIANS OF THE BACKGROUND PRINCIPLES Jonathan R. Siegel∗ 2009 MICH. ST. L. REV. 123 TABLE OF CONTENTS ABSTRACT .................................................................................................. 123 INTRODUCTION ........................................................................................... 123 I. THE USE OF BACKGROUND PRINCIPLES IN STATUTORY INTERPRETATION ............................................................. 125 A. Background Principles, or “Field-Specific Canons of Construction” .......................................................................... 125 B. Background Principles and Administrative Agencies ................. 128 II. THE FIELD-SPECIFIC CANONS IN ACTION ............................................ 131 III. LESSONS FOR AGENCIES, COURTS, AND CONGRESS ............................ 138 CONCLUSION .............................................................................................. 141 ABSTRACT The debate over statutory interpretation often breaks down into a bat-tle among textualists, intentionalists, and purposivists. But another consid-eration in statutory interpretation that is distinct from all three is the degree of importance given to substantive background principles of law. This Es-say explores the potential for use of these “field-specific canons of construc-tion” by administrative agencies. The Essay concludes that the institutional characteristics of agencies, particularly their specialized expertise, put them in a particularly good position to discern and utilize field-specific back-ground principles as a tool of statutory construction. INTRODUCTION The literature on administrative statutory interpretation is sparse—as recently as 2005 Jerry Mashaw observed that “virtually no one has even asked, much less answered, some simple questions about agency statutory ∗ Professor of Law and Kahan Research Professor, George Washington University Law School. I would like to thank my colleague Dick Pierce and the other symposium par-ticipants for their comments on earlier drafts.124 Michigan State Law Review [Vol. 2009:123 interpretation.”1 However, one point of agreement is that if there is to be a distinctive methodology for administrative statutory interpretation, it should take its content from the distinctive institutional characteristics of adminis-trative agencies.2 Scholarly writing on administrative statutory interpreta-tion has catalogued some distinctive characteristics of agencies, such as their special “closeness to the legislative process,”3 or their control over their interpretive agenda that results from their status as “active implemen-ters” rather than “passive interpreters.”4 The scholarship has gone on to consider the implications of these characteristics for agency interpretive methodology.5 This Essay examines the methodological implications that follow from one of the distinctive characteristics of administrative agencies, namely, their deep engagement with and knowledge of their organic statutes. The Essay argues that this distinctive degree of knowledge puts agencies in a particularly good position to utilize an interpretive method which gives spe-cial weight to substantive background principles of law and which under-stands the meaning of statutory text in light of such background principles. This method, while recognizing the importance of statutory text and con-gressional intent, also recognizes that another vital consideration is that of maintaining a sound and coherent legal structure. In appropriate cases, an interpreter using this methodology will determine that the most important consideration in interpreting a statute is ensuring that the statute makes sense in light of the background principles of the field of law of which the statute forms a part. These background principles, this Essay emphasizes, are distinct from many of the “canons of construction” used in statutory interpretation. The canons—particularly those favored by textualist interpreters—tend to be transsubstantive; that is, they are general principles of interpreting text that 1. Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Prelimi-nary Inquiry into Agency Statutory Interpretation, 57 ADMIN. L. REV. 501, 501-02 (2005). 2. E.g., id. at 503 (examining “the position that responsible administrators should take toward statutory interpretation given their position in the American constitutional order . . . and the practical necessities of administration”); Peter L. Strauss, When the Judge is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 CHI.-KENT L. REV. 321, 321 (1990) (noting numerous differences between the characteristics of administrative agencies and courts); see also ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION 61 (2006) (“[I]nterpretive rules must be chosen in light of institutional ca-pacities.”). 3. Strauss, supra note 2, at 346. 4. Mashaw, supra note 1, at 513. 5. E.g., Strauss, supra note 2, at 347 (suggesting that the agencies’ participation in the legislative process puts them in a better position than courts to make proper use of legis-lative history).Spring] Guardians of the Background Principles 125 apply to statutes regardless of the subject matter.6 The background prin-ciples referred to here are substantive in nature. They are specific to partic-ular fields of law. They tilt the interpretive playing field in favor of particu-lar results, namely, those that are in keeping with the usual practices in the area of law involved. If these principles are to be regarded as canons of construction, they would have to be distinguished as the “field-specific ca-nons.” Administrative agencies, being each expert in their particular field of law, are in the best position to discern and utilize these field-specific ca-nons. Part I of this Essay describes the interpretive method of using back-ground principles of law as an influence on statutory interpretation and ex-plores the use of this method in the context of administrative statutory inter-pretation. Part II provides some examples of this method in action. Part III draws lessons for agencies, courts, and Congress. I. THE USE OF BACKGROUND PRINCIPLES IN STATUTORY INTERPRETATION A. Background Principles, or “Field-Specific