Public Law & Legal Theory
“How much ambiguity is enough?” was the deceptively simple question repeatedly put forward by Justice Neil Gorsuch in oral argument for American Hospital Association v. Becerra. Silly as the question was meant to seem, much turns on the response. Most obvious are the effects on the practice of administrative agencies and the implications for years of precedent surrounding the Chevron doctrine. But far beyond administrative law, the response also has substantial ramifications for the law of interpretation since it is centered in the complementary notion of clarity. Notwithstanding the stakes, the government’s lawyer struggled to give a concise response. Rather than trying to answer Justice Gorsuch’s question without further clarification it would have been more effective to ask what kind of response he was looking for or, more provocatively, by asking Justice Gorsuch how certain he takes himself to be when he declares a statute clear. As we will see, when it comes to drawing a line between ambiguous and clear, the answer is far from straightforward.
This Article proposes an entirely new framework for evaluating doctrines that assign legal significance to whether a statutory text is “clear.” Previous scholarship has failed to recognize that such doctrines come in two distinct types. The first, which this Article calls rules of evidence, instruct a court to “start with the text,” and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court’s search for what a statute means, the question with each of these doctrines is whether adhering to it aids or impairs that search—the character of the evaluation is, in other words, mostly epistemic. The second type, which this Article calls rules of decision, instead tell a court to decide a statutory case on some ground other than statutory meaning if, after considering all the available sources, what the statute means remains opaque. The idea underlying these doctrines is that if statutory meaning is uncertain, erring in some direction constitutes “playing it safe.” With each such doctrine, the question is thus whether erring in the identified direction really is “safer” than the alternative(s)—put differently, evaluation of these doctrines is fundamentally practical.
Perhaps the most important implication of drawing the distinction between rules of evidence and rules of decision is that doing so necessitates a rethinking of the relationship between the Skidmore and Chevron doctrines. Because rules of evidence help manage uncertainty that remains after the search for statutory meaning, it will almost always make sense for courts to apply any relevant rule of evidence (e.g. Skidmore) before determining whether a statute is or is not “clear” for purposes of some rule of decision (e.g. Chevron). In other words, Skidmore cannot coherently be thought of as a fall-back option, should Chevron cease to be treated as law. The two doctrines are complements, not alternatives.
With the new framework in place, this Article then goes on to address the increasingly popular categorical objection to “clear” text doctrines at which Justice Gorsuch gestured in American Hospital Association. As this Article explains, the objection that nobody knows how clear a text has to be to count as “clear” rests partly on a misunderstanding of how “clarity” determinations work—such determinations are sensitive to context, including legal context, in ways critics of these doctrines fail to account for. In addition, the objection that “clear” text doctrines are vulnerable to willfulness or motivated reasoning is fair but, as this Article shows, applies with equal force to any plausible alternative.
Ryan D. Doerfler, "How Clear Is "Clear" Enough?", Public Law and Legal Theory Working Paper Series, No. 720 (2019).