Statutory Interpretation: Best vs. Least Bad (1/23/22l 1/25/22)

I have stated my definition of deference as follows: 

Deference is a court applying a reasonable agency interpretation of ambiguous statutory text despite the court's belief that there is a more reasonable interpretation of the ambiguous statutory text. That's it.

See John A. Townsend, The Report of the Death of the Interpretive Regulation Is an Exaggeration 70 (SSRN last revised 12/15/21), here. This requires that the court actually determine the best interpretation and then defer to a lesser agency interpretation

Some state that Chevron deference can include a court applying a reasonable agency interpretation without the court having to struggle with the issue of the best interpretation. I divide reasonable agency interpretations into two relevant categories:  (i) the best interpretation, which is perforce reasonable; and (ii) an interpretation that is less than the best but still reasonable (whatever that means). Category (i) involves no deference; Category (ii) involves deference. If the court stops at determining that the agency interpretation is reasonable without determining the best interpretation, the court may or may not have deferred to a less persuasive agency interpretation.

These Categories and ones I discuss in my article Postscript (separately available here) depend upon the potential for a "best" interpretation. In Polselli v. United States Dep't of the Treasury-IRS. 23 F.4th 616 (6th Cir. 1/7/22), CA6 here and GS here, although not in a Chevron context, the dissenting judge stated the concept of the best interpretation as: "the least bad interpretation."  For purposes of Chevron analysis, I think the best and the least bad interpretation are the same. The term "least bad interpretation" may be catchy, but I think the term best (or better) interpretation is more appropriate for statutory interpretation.

I discuss Polselli (although not in the Chevron context) in my earlier blog. 6th Circuit Holds Summonses in Aid of Collection Do Not Require Notice to Taxpayers Or Others (Federal Tax Procedure Blog 1/13/12, here); see also Leslie Book, Polselli v US: Circuit Split on Notice Rules For Summonses to Aid Collection (Procedurally Taxing 1/20/22), here.

Added 1/25/22 9:30am:  

1.  The foregoing assumes that there is a "best" interpretation that the court can determine  The best interpretation may be so "best" that it would preclude the agency interpretation at either Chevron Step One or Two.  I recall that Justice Scalia was believed that he could usually determine a best interpretation so as to stop at Step One.  (Or, I suppose, if he got to Step Two, equipped with that best interpretation, he could declare the agency interpretation unreasonable at Step Two; actually, as I note in my article, Steps One and Two may be practically the same if Step One requires (as I think it does) that the agency interpretation be reasonable within the scope of the statutory ambiguity.)

2. ''What happens if there is more than one reasonable interpretation but the court cannot determine a best interpretation among the reasonable interpretations.  With respect to interpretation, the court is in equipoise in conceptually the same way a trier-of-fact may be in equipoise as to a fact.  I address that phenomenon in the Chevron context in the Postscript, here, as Category 7 on pp. 120-121.  After discussing the equipoise concept in a Chevron context, I finally conclude that, even if in equipoise, applying Skidmore or even Chevron, the court has not deferred to a "lesser" agency interpretation.

3.  It just struck me that, if all a court does is determine at either Chevron Step One or Two that the agency interpretation is reasonable within the scope of the statutory ambiguity without determining whether that reasonable interpretation is the best, a good name for the phenomenon is "Lazy Chevron" because the court should be identifying whether or not it is really deferring to a less reasonable agency interpretation.  For this reason, I suggest in the Postscript p. 123 a 4-step Chevron analysis that will force the court to determine whether it is in fact deferring to a lesser agency interpretation.  That would bring some clarity to the Chevron debate.  If my inference is correct, it would show that Chevron is a tempest in a teapot.