Friday, March 11, 2022

Justices Discuss Limited Ambiguity Role for Lenity and by Analogy Chevron Deference (3/11/22)

Ambiguity in statutory text can invoke two interpretive regimes.  Ambiguity in a criminal statute invokes the rule of lenity that says that if a criminal statute is ambiguous (or, sometimes, grievously ambiguous) the statutory ambiguity must be interpreted in the criminal defendant’s favor.  Ambiguity in a statute potentially subject to Chevron deference to an agency interpretation is interpreted consistent with the Chevron-entitled agency interpretation if it is reasonable (permissible).  Both interpretive regimes turn on ambiguous statutory text.

The question I address in this blog is what ambiguity means for both lenity and Chevron deference.  The only thing that I am sure of is that ambiguity in either context has no litmus test, thus is itself ambiguous.  As I note in The Report of the Death of the Interpretive Regulation Is an Exaggeration 75 n. 296 (SSRN December 14, 2021), here.

   n. 296 The word ambiguous in deference jurisprudence may be ambiguous. E.g., Aditya Bamzai, Delegation and Interpretive Discretion: Gundy, Kisor and the  Formation of Future Administrative Law, 133 Harvard L. Rev. 164, 187 n. 140 (2019) (“The question of how to identify ‘ambiguity’ is a long-running one in both administrative law and elsewhere,” citing scholarly discussions); Brett M. Kavanaugh, Book Review: Fixing Statutory Interpretation, 119 Harv. L. Rev. 2118, 2118-2119 (2016) (“judges often cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way”); and Ryan D. Doerfler, The “Ambiguity” Fallacy, 88 Geo. Wash. L. Rev. 1110 (2020) (“‘ambiguity,’ is critically ambiguous.”)

Ambiguity in the ambiguity concept also infects lenity.  In Wooden v. United States, 595 U. S. ____ 2022 U.S. LEXIS 1421 (3/7/22), S.Ct. here and GS here, Justices Kavanaugh and Gorsuch, in concurring opinions, weighed in on the issue in ways that evoke the ambiguity discussion for Chevron deference and may offer some guidance in Chevron deference.

I start with Justice Gorsuch’s discussion on p. 9 of his concurring opinion which starts here.  Justice Gorsuch starts with a complaint about the gloss sometimes added to the lenity discussion that the ambiguity must not only be ambiguous but also must be “grievously ambiguous.”  I think he does a pretty good job in demolishing the spurious notion that there are two categories of ambiguity for lenity purpose – grievous in which lenity applies and non-grievous in which lenity does not apply.  Lenity applies where there is ambiguity, period.

This still does not help in determining what ambiguity is.  Is it just that the judge knows it when he or she sees it.  Justice Kavanaugh discusses that issue in his concurring opinion starting here.  Basically, Justice Kavanaugh argues that ambiguity in statutory interpretation for lenity purposes is a rare phenomenon.  Evoking the Chevron / Auer concepts hinging on ambiguity, Justice Kavanaugh says (p. 2 of concurring opinion):

            Properly applied, the rule of lenity therefore rarely if ever plays a role because, as in other contexts, “hard interpretive conundrums, even relating to complex rules, can often be solved.” Kisor v. Wilkie, 588 U. S. ___, ___ (2019) (slip op., at 14); see also Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843, n. 9 (1984). And if “a reviewing court employs all of the traditional tools of construction, the court will almost always reach a conclusion about the best interpretation of the [law] at issue.” Kisor, 588 U. S., at ___ (KAVANAUGH, J., concurring in judgment) (slip op., at 1).

            In short, because a court must exhaust all the tools of statutory interpretation before resorting to the rule of lenity, and because a court that does so often determines the best reading of the statute, the rule of lenity rarely if ever comes into play. In other words, “if lenity invariably comes in ‘last,’ it should essentially come in never.” D. Kahan, Lenity and Federal Common Law Crimes, 1994 S. Ct. Rev. 345, 386. As I see it, that explains why this Court rarely relies on the rule of lenity, at least as a decisive factor.

I read that as saying that ambiguity in lenity and Chevron deference contexts will be rare because careful application of the rules of interpretation will usually eliminate the ambiguity.  This may be just a way of expressing the same concept Justice Kennedy expressed in his lament against “reflexive deference.”  See Pereira v. Sessions, ___ U.S. ____, 138 S. Ct. 2105, 2113, 2020 (2018) (Kennedy, concurring).  As a court recently observed Peltier v. Charter Day School, Inc., 8 F. 4th 251, 271 (4th Cir. 2021), CA4 here and GS here:

            "[T]he judiciary is the final authority on issues of statutory construction . . . ." Chevron, 467 U.S. at 843 n.9. That authority grounds step one of the Chevron analysis. See Arangure v. Whitaker, 911 F.3d 333, 338 (6th Cir. 2018). In asking whether Congress's intent was clear at step one, we must apply the "traditional tools of statutory construction" before we can declare an interpretive question ambiguous. Chevron, 467 U.S. at 843 n.9; see also Nat'l Elec. Mfrs. Ass'n, 654 F.3d at 504. It is our constitutional obligation to say what the law is, and the Supreme Court has reminded courts not to abdicate that duty at step one of the Chevron analysis. See Pereira v. Sessions, 138 S. Ct. 2105, 2113, 201 L. Ed. 2d 433 (2018) ("[T]he Court need not resort to Chevron deference, as some lower courts have done, for Congress has supplied a clear and unambiguous answer to the interpretive question at hand."); id. at 2120 (Kennedy, J., concurring) (admonishing lower courts for rushing to give "reflexive deference" instead of using the tools of statutory construction to discern if Congress's intent was clear at step one).

Thus, just as with lenity, ambiguity as a trigger for potential Chevron deference at Step One should be rare because rigorous statutory interpretation should eliminate ambiguity.  Scholars have noted the decline, even the death, of Chevron deference in the Supreme Court, but some claim that Chevron deference is more common in the Courts of Appeals.  E.g., Nathan Richardson, Deference Is Dead (Long Live Chevron), 73 Rutgers U. L. Rev. 441, 445 & 485-493 (2021), here.  My recent review of Court of Appeals cases noising about Chevron deference in a year period ending November 30, 2021, indicates that there is more confusion than actual deference.  In some cases, there is some suggestion that Courts of Appeals may blow right past Step One to apply the agency "reasonable interpretation" at Step Two when what they are doing is applying the best interpretation because, well, the best interpretation is a reasonable interpretation.  My inference is that Courts claiming to defer to the reasonable interpretation at Step Two in reality believe that the agency interpretation is likely the best interpretation.  I base this on my inference is that most judges who determine the best interpretation are not likely to defer to a lesser agency interpretation.

As noted by a leading author, limiting the scope of the ambiguity concept could be a big step in muting the objections to Chevron (Cass R. Sunstein, Zombie Chevron: A Celebration, 82 Ohio St. L.J. 565 , 575-576 (2021) (footnotes omitted), here):

The most important way to domesticate Chevron is to ensure that Step One is taken very seriously--that is, that judges proceed to Step Two only if the statutory provision is genuinely ambiguous. Textualists will enthusiastically embrace this idea, and it should appeal to non-textualists as well. Recall Justice Kennedy's concern that deference is sometimes "reflexive," which means that lower courts proceed to Step Two whenever a statute is susceptible to more than  [*576] one interpretation, even if one conclusion is clearly superior. Recall that Justice Kavanaugh's spirited word-"amazing"-was reserved for deference to an agency's interpretation even though all judges agreed that a different interpretation was best. Recall finally Justice Scalia's words from 1989:

In my experience, there is a fairly close correlation between the degree to which a person is (for want of a better word) a "strict constructionist" of statutes, and the degree to which that person favors Chevron and is willing to give it broad scope. The reason is obvious. One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists. It is thus relatively rare that Chevron will require me to accept an interpretation which, though reasonable, I would not personally adopt. Contrariwise, one who abhors a "plain meaning" rule, and is willing to permit the apparent meaning of a statute to be impeached by the legislative history, will more frequently find agency-liberating ambiguity, and will discern a much broader range of "reasonable" interpretation that the agency may adopt and to which the courts must pay deference. The frequency with which Chevron will require that judge to accept an interpretation he thinks wrong is infinitely greater. 

We could easily imagine a vigorous pronouncement from the Court, emphasizing the primacy of the judiciary in statutory interpretation, and insisting that deference to agency interpretations is justified only in the face of either an open-ended term ("reasonable" or "feasible") or something fairly close to equipoise (which plausibly helps account for Chevron itself). Such a pronouncement might also emphasize that deference is most appropriate in cases in which resolution of a statutory ambiguity calls for application of technical expertise (as was so, more than plausibly, in Chevron itself).

Such a pronouncement could express the equivalent of a "mood," cautioning lower courts against seizing on potentially ambiguous terms to justify deference in cases in which one interpretation really is superior. It is true that if it is written incautiously, any such pronouncement could effectively undo Chevron altogether, which would not be a good idea. In some cases, purely legal competence is not enough to require a single interpretation, and the agency should be permitted to choose (reasonably). The only point is that some ambiguities are real, and others are merely apparent. They disappear on reflection.

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