Article

Bad Faith Prosecution

There is no shortage of claims by parties that their prosecutions are politically motivated, racially motivated, or just plain arbitrary. In our increasingly polarized society, such claims are more common than ever. Donald Trump campaigned on promises to lock up Hillary Clinton for her handling of State Department-related emails, but he subsequently complained that the special counsel’s investigation of his campaign’s alleged contacts with Russian operatives was a politically motivated witch hunt. Kenneth Starr’s pursuit of investigations of Bill Clinton evoked similar arguments of political motivation.1 1.See, e.g., Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 Iowa L. Rev. 393, 397 (2001) (using the Starr investigation as a point of departure for discussing prosecutorial abuses generally).Show More

The advent of “progressive” prosecutors will no doubt increase claims of bad faith prosecution, given their announcements of crimes they will and will not prosecute. Typically, they promise not to prosecute for lesser violations such as prostitution and drug possession.2 2.See Memorandum from Alvin L. Bragg, Jr., District Attorney, Cnty. of New York (Jan. 3, 2022), https://www.manhattanda.org/wp-content/uploads/2022/01/Day-One-Letter-Policies-1.03.2022.pdf [https://perma.cc/A336-ERT6] (announcing a policy to decline prosecution for, inter alia, marijuana misdemeanors, failing to pay a fare for public transportation, aggravated unlicensed operation, and prostitution); Jeffrey Bellin, Theories of Prosecution, 108 Calif. L. Rev. 1203, 1205–06 (2020) (providing examples of progressive prosecutors’ policies).Show More Although crime victims generally cannot complain that a perpetrator was not prosecuted, non-prosecution policies could strengthen claims of bad faith prosecution when prosecutors nevertheless prosecute some individuals for such delicts. In addition, candidates’ and officials’ statements that they intend to pursue certain individuals or groups may bolster claims of bad faith—as evidenced in Donald Trump’s arguments of political motivation for investigations by New York Attorney General Letitia James.3 3.See Complaint at 6, 11, 29, Trump v. James, No. 21-cv-01352, 2022 WL 1718951 (N.D.N.Y. May 27, 2022) (seeking declaratory and injunctive relief inter alia under 42 U.S.C. § 1983 to limit the investigation, and relying on numerous statements by James as a candidate and as the New York Attorney General with respect to Trump); Trump v. James, 2022 WL 1718951, at *19–20 (dismissing the complaint based on Younger [v. Harris, 401 U.S. 37 (1971),] abstention); id. at *13 (stating that the plaintiffs had not established that the subpoena enforcement action was commenced for a retaliatory purpose). Within days of the complaint being dismissed, the plaintiffs appealed. See Trump v. James,No. 21-cv-01352, 2022 WL 1718951 (N.D.N.Y. May 27, 2022), appeal docketed,No. 22-1175 (2d Cir. May 31, 2022).Show More

Introduction

The varying cries of “foul” raise questions as to what should count as a politically motivated, racially motivated, or generally bad faith prosecution. The pitfalls of too easy or too difficult a standard for showing selective prosecution are evident. The investigation and prosecution of Paul Manafort might not have occurred absent his political visibility, but one may not necessarily think that his evasion of income taxes should therefore be excused.4 4.See United States v. Manafort, 314 F. Supp. 3d 258, 272 (D.D.C. 2018) (refusing to suppress evidence from an allegedly overbroad search).Show More On the other hand, the fact that Yick Wo violated San Francisco’s ordinance against operating a laundry in a wooden building should not preclude a claim of discriminatory prosecution.5 5.See Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (“[T]he facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities . . . with a mind so unequal and oppressive as to amount to a practical denial . . . of that equal protection of the laws . . . .”). But cf. Gabriel J. Chin, Unexplainable on Grounds of Race: Doubts About Yick Wo, 2008 Ill. L. Rev. 1359, 1369–70, 1373, 1376 (arguing that the decision was based on an invasion of property rights and was not about discriminatory prosecution, although later cases attributed that meaning to Yick Wo).Show More

The Supreme Court has required relatively high standards for claims of race- or speech-motivated prosecution. Under Armstrong v. United States, defendants in criminal cases must make a significant showing to obtain discovery as to discriminatory purpose and effect.6 6.517 U.S. 456, 459–61, 463–65, 469–70 (1996).Show More And under Hartman v. Moore, plaintiffs seeking damages for a previous prosecution must allege the absence of probable cause in addition to bad motivation.7 7.547 U.S. 250, 260–61 (2006). There are, of course, other ways for checking prosecutorial abuse such as elections and criminal process. The criminal process provides for possible determinations by grand juries and judges that probable cause is lacking, including by way of motions for acquittal and appeals for insufficiency of evidence.Show More

Many have condemned the standards used by the Supreme Court as unduly limiting bad faith prosecution claims8 8.See, e.g., Alison Siegler & William Admussen, Discovering Racial Discrimination by the Police, 115 Nw. U. L. Rev. 987, 991 (2021) (criticizing difficulties of proof); John S. Clayton, Policing the Press: Retaliatory Arrests of Newsgatherers After Nieves v. Bartlett, 120 Colum. L. Rev. 2275, 2294–96 (2020); William J. Stuntz, Bordenkircher v. Hayes: Plea Bargaining and the Decline of the Rule of Law, in Criminal Procedure Stories 351, 369 (Carol S. Steiker ed., 2006); Richard H. McAdams, Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 Chi.-Kent L. Rev. 605, 618 (1998); Anne Bowen Poulin, Prosecutorial Discretion and Selective Prosecution: Enforcing Protection After United States v. Armstrong, 34 Am. Crim. L. Rev. 1071, 1073–74 (1997); Melissa L. Jampol, Goodbye to the Defense of Selective Prosecution, 87 J. Crim. L. & Criminology 932, 963 (1997).Show More and as inconsistent with ordinary standards for proving cases of unconstitutional motivation.9 9.See Hartman v. Moore, 547 U.S. 250, 267 (2006) (Ginsburg, J., dissenting, joined by Breyer, J.); Kristin E. Kruse, Comment, Proving Discriminatory Intent in Selective Prosecution Challenges—An Alternative Approach to United States v. Armstrong, 58 SMU L. Rev. 1523, 1536 (2005) (recommending use of the employment discrimination framework from cases such as McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); cf. Nieves v. Bartlett, 139 S. Ct. 1715, 1730 (2019) (Gorsuch, J., concurring in part and dissenting in part) (in a damages case alleging an arrest in retaliation for speech, arguing that a showing of lack of probable cause should not be required by the Court because a constitutional violation did not require such a showing); id. at 1737 (Sotomayor, J., dissenting) (arguing that the standards of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), strike the proper balance between government interests and individual rights).Show More After all, if we look beyond the setting of criminal prosecutions, the Court has made it comparatively easier to vindicate rights in the face of constitutionally improper motivations. The Court in Mt. Healthy City School District Board of Education v. Doyle famously introduced a two-part test that requires, upon a showing by the plaintiff that a constitutionally improper motivation prompted his termination, the defendant to prove that the plaintiff’s termination would in any event have come to pass.10 10.429 U.S. 274, 286–87 (1977).Show More

In other words, the Mt. Healthy test—which has spread beyond its original First Amendment setting—more readily allows a claimant to have her claim heard on the merits.11 11.Under the 1991 amendments to Title VII, a plaintiff can prevail on the liability phase if the plaintiff shows that a factor such as race was “a motivating factor for an employment practice”; the defendant has a burden of persuasion at the remedy phase if the defendant wishes to show that the adverse employment action would have occurred for an alternative reason. 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B) (2018); see also George Rutherglen, Employment Discrimination Law 53–54 (5th ed. 2021) (discussing aforementioned statutes). The Court, however, has eschewed burden shifting under certain other employment discrimination statutes, see id.; Gross v. FBL Fin. Servs., 557 U.S. 167, 178–79 (2009) (not applying burden shifting in a case under the Age Discrimination in Employment Act, 29 U.S.C. § 623(a) (2018)); id. at 179 (questioning the burden shifting approach generally). There may be some question, then, of whether the Court will continue to use the burden shifting framework where statutes do not specifically require it.Show More Why should a similar approach not hold sway in the setting of criminal prosecutions? We have a succinct answer to this question: the same approach should not apply because the setting of criminal prosecutions is fundamentally different.

To take up this argument, we first provide what we hope is a useful taxonomy of different types of claims of bad faith prosecution and the procedural settings in which they arise. We also describe the standards of proof in the different procedural settings. We then address criticisms that the standards of proof for bad faith prosecutions unduly deviate from the ordinary standards for proving unconstitutional motivation. We suggest that there are good reasons for requiring higher standards for showing bad faith prosecution as compared to other areas of alleged illicit motivation such as employment discrimination. There may be a presumption that criminal behavior, rather than bad faith, is the reason for prosecution of nontrivial violations.12 12.Cf. McAdams, supra note 8, at 653 (“Perhaps the more fundamental basis for hostility to selective prosecution claims is that they are presented by the guilty.”).Show More And despite the academic chorus reprobating prosecutorial discretion,13 13.See, e.g., William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 511–12, 579–81 (2001) (arguing that prosecutorial discretion leads to over-criminalization but suggesting difficulties with eliminating such discretion); Stuntz, supra note 8, at 379 (arguing that prosecutorial discretion gives too much power to prosecutors, upsetting our system of checks and balances); Leslie B. Arffa, Note, Separation of Prosecutors, 128 Yale L.J. 1078, 1082 (2019) (noting that many see prosecutorial power as a central problem of the American criminal justice system); Hon. J. Harvie Wilkinson, In Defense of American Criminal Justice, 67 Vand. L. Rev. 1099, 1104–05, 1129–31 (2014) (describing critiques of prosecutorial discretion and citing authority).Show More greater judicial scrutiny of prosecutorial motives may be less helpful than safeguards within prosecutors’ offices—as Professor Barkow has argued.14 14.See Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 Stan. L. Rev. 869, 908–09 (2009); Wilkinson, supra note 13, at 1132 (providing reasons for prosecutorial discretion); Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 379–81 (1973) (detailing reasons why judicial review of prosecutorial discretion would be undesirable); cf. Hannah Shaffer, Prosecutors, Race, and the Criminal Pipeline, U. Chi. L. Rev. (forthcoming 2023) (manuscript at 1–2) (suggesting that limiting prosecutorial discretion or blinding them to defendants’ race may inadvertently offset prosecutors’ giving less weight to the criminal records of Black defendants than white defendants in decisions affecting incarceration); id. (manuscript at 25–26, 37, 45, 54) (not attributing the lesser weight to records of Black defendants to progressive elected prosecutors, although finding that beliefs of individual prosecutors affected results). Our views thus could be characterized as a “checks and balances” approach, under which prosecutors’ offices adopt organizational structures that reduce incentives and opportunities to pursue constitutionally improper motives, rather than a “separation of powers” approach—that is, an approach that involves other branches of government—to regulate prosecutorial discretion. See Daniel Epps, Checks and Balances in the Criminal Law, 74 Vand. L. Rev. 1, 4–5 (2021) (contrasting checks and balances approaches with separation of powers approaches); id. at 73–74 (recommending separation of functions within prosecutors’ offices, as suggested by Barkow).Show More This does not mean that prosecutors’ offices should be immune from scrutiny, but it may suggest that Armstrong’s and Hartman’s hurdles to opening up judicial review of prosecutorial motives are appropriate.

In addition, we discuss the special difficulties of addressing political and racial motivations in the prosecutorial setting. While all deplore politically motivated prosecutions, there are difficulties in drawing lines between appropriate and inappropriate political influences on prosecutorial policies and decisions,15 15.Cf. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2573 (2019) (discussing that agency decisions are often informed by politics).Show More which in turn suggests high standards of proof. What is more, the Court assumes that disparate racial impact evidence may hold reduced probative value in the prosecution context, given the difficulties of determining the populations of those who might have been prosecuted but were not.16 16.See Sandra G. Mayson, Bias In, Bias Out, 128 Yale L.J. 2218, 2257–58 (2019) (referring to studies suggesting some crimes may be committed disproportionately by different groups); Jennifer L. Skeem & Christopher T. Lowenkamp, Risk, Race and Recidivism: Predictive Bias and Disparate Impact, 54 Criminology 680, 690 (2016) (noting the debate as to whether differential participation or differential selection causes racial disparities in criminal justice).Show More

We also address other arguable inconsistencies between the standards for bad faith prosecution claims and related areas and offer resolutions. (1) In damages (Hartman) cases, the plaintiff must make a showing of no-probable-cause that is not required when a motion is brought in a criminal proceeding (Armstrong cases), but we conclude that the difference is warranted. (2) In retaliatory arrest claims, the Court in Nieves v. Bartlett allowed for an exception to the no-probable-cause showing for minor crimes that rarely evoke enforcement,17 17.139 S. Ct. 1715, 1724, 1727 (2019).Show More but it is unclear whether such an exception exists for Hartman retaliatory prosecution claims. We suggest recognition of such an exception for bad faith prosecution claims. (3) Some lower federal courts have more easily allowed discovery with respect to claims in criminal cases of discriminatory “enforcement” as distinguished from Armstrong discriminatory “prosecution” motions.18 18.See, e.g., United States v. Washington, 869 F.3d 193, 220–21 (3d Cir. 2017); infra note 70 (describing differing views in the circuit courts).Show More We suggest that the experience with broader discovery warrants continuing caution in loosening discovery for bad faith prosecution claims. (4) Lower federal courts have prescribed somewhat different elements for damages claims under various theories in the nature of malicious prosecution.19 19.See Erin E. McMannon, The Demise of § 1983 Malicious Prosecution: Separating Tort Law from the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1485, 1493 (2019) (discussing varying standards and citing cases and secondary authority); Lyle Kossis, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1646–48 (2013) (discussing various standards).Show More For example, there is an issue of whether malicious prosecution claims brought under the Fourth Amendment require proof of subjective bad motivation.20 20.See, e.g., Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99–101 (1st Cir. 2013) (alluding to differences among the circuits).Show More We suggest a way to make the standards more uniform across different types of claims.21 21.Compare Kossis, supra note 19, at 1662–63 (favoring use of common law elements), with McMannon, supra note 19, at 1504 (disfavoring use of common law elements in favor of a Fourth Amendment-based framework).Show More

Finally, we show how the rise of progressive prosecutors may make proof of bad faith prosecutions easier. That is because policies of non-prosecution will provide claimants with more comparators for making out their claims.

Part I discusses what we mean by bad faith prosecution, and we provide a taxonomy of bad faith prosecution claims arising under different constitutional provisions and as they arise in particular procedural settings. Although we principally focus on claims that a prosecution was motivated by race or speech, we also describe other theories that may support a claim of bad faith prosecution. Part II describes the standards of proof for bad faith prosecution claims as they arise in different procedural contexts. Part III addresses criticisms that these standards are too high and inconsistent with other claims involving subjective ill will and provides rationales for the elevated standards for bad faith prosecution. Part IV briefly considers whether certain other inconsistencies in the doctrine suggest changes to requirements for proving bad faith prosecutions. Part V discusses the possible impact of progressive prosecutors on claims of bad faith prosecution.

  1.  See, e.g., Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 Iowa L. Rev. 393, 397 (2001) (using the Starr investigation as a point of departure for discussing prosecutorial abuses generally). ↑
  2.  See Memorandum from Alvin L. Bragg, Jr., District Attorney, Cnty. of New York (Jan. 3, 2022), https://www.manhattanda.org/wp-content/uploads/2022/01/Day-One-Letter-Policies-1.03.2022.pdf [https://perma.cc/A336-ERT6] (announcing a policy to decline prosecution for, inter alia, marijuana misdemeanors, failing to pay a fare for public transportation, aggravated unlicensed operation, and prostitution); Jeffrey Bellin, Theories of Prosecution, 108 Calif. L. Rev. 1203, 1205–06 (2020) (providing examples of progressive prosecutors’ policies). ↑
  3.  See Complaint at 6, 11, 29, Trump v. James, No. 21-cv-01352, 2022 WL 1718951 (N.D.N.Y. May 27, 2022) (seeking declaratory and injunctive relief inter alia under 42 U.S.C. § 1983 to limit the investigation, and relying on numerous statements by James as a candidate and as the New York Attorney General with respect to Trump); Trump v. James, 2022 WL 1718951, at *19–20 (dismissing the complaint based on Younger [v. Harris, 401 U.S. 37 (1971),] abstention); id. at *13 (stating that the plaintiffs had not established that the subpoena enforcement action was commenced for a retaliatory purpose). Within days of the complaint being dismissed, the plaintiffs appealed. See Trump v. James, No. 21-cv-01352, 2022 WL 1718951 (N.D.N.Y. May 27, 2022), appeal docketed, No. 22-1175 (2d Cir. May 31, 2022). ↑
  4.  See United States v. Manafort, 314 F. Supp. 3d 258, 272 (D.D.C. 2018) (refusing to suppress evidence from an allegedly overbroad search). ↑
  5.  See Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (“[T]he facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities . . . with a mind so unequal and oppressive as to amount to a practical denial . . . of that equal protection of the laws . . . .”). But cf. Gabriel J. Chin, Unexplainable on Grounds of Race: Doubts About Yick Wo, 2008 Ill. L. Rev. 1359, 1369–70, 1373, 1376 (arguing that the decision was based on an invasion of property rights and was not about discriminatory prosecution, although later cases attributed that meaning to Yick Wo). ↑
  6.  517 U.S. 456, 459–61, 463–65, 469–70 (1996). ↑
  7.  547 U.S. 250, 260–61 (2006). There are, of course, other ways for checking prosecutorial abuse such as elections and criminal process. The criminal process provides for possible determinations by grand juries and judges that probable cause is lacking, including by way of motions for acquittal and appeals for insufficiency of evidence. ↑
  8.  See, e.g., Alison Siegler & William Admussen, Discovering Racial Discrimination by the Police, 115 Nw. U. L. Rev. 987, 991 (2021) (criticizing difficulties of proof); John S. Clayton, Policing the Press: Retaliatory Arrests of Newsgatherers After Nieves v. Bartlett, 120 Colum. L. Rev. 2275, 2294–96 (2020); William J. Stuntz, Bordenkircher v. Hayes: Plea Bargaining and the Decline of the Rule of Law, in Criminal Procedure Stories 351, 369 (Carol S. Steiker ed., 2006); Richard H. McAdams, Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 Chi.-Kent L. Rev. 605, 618 (1998); Anne Bowen Poulin, Prosecutorial Discretion and Selective Prosecution: Enforcing Protection After United States v. Armstrong, 34 Am. Crim. L. Rev. 1071, 1073–74 (1997); Melissa L. Jampol, Goodbye to the Defense of Selective Prosecution, 87 J. Crim. L. & Criminology 932, 963 (1997). ↑
  9.  See Hartman v. Moore, 547 U.S. 250, 267 (2006) (Ginsburg, J., dissenting, joined by Breyer, J.); Kristin E. Kruse, Comment, Proving Discriminatory Intent in Selective Prosecution Challenges—An Alternative Approach to United States v. Armstrong, 58 SMU L. Rev. 1523, 1536 (2005) (recommending use of the employment discrimination framework from cases such as McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); cf. Nieves v. Bartlett, 139 S. Ct. 1715, 1730 (2019) (Gorsuch, J., concurring in part and dissenting in part) (in a damages case alleging an arrest in retaliation for speech, arguing that a showing of lack of probable cause should not be required by the Court because a constitutional violation did not require such a showing); id. at 1737 (Sotomayor, J., dissenting) (arguing that the standards of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), strike the proper balance between government interests and individual rights). ↑
  10.  429 U.S. 274, 286–87 (1977). ↑
  11.  Under the 1991 amendments to Title VII, a plaintiff can prevail on the liability phase if the plaintiff shows that a factor such as race was “a motivating factor for an employment practice”; the defendant has a burden of persuasion at the remedy phase if the defendant wishes to show that the adverse employment action would have occurred for an alternative reason. 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B) (2018); see also George Rutherglen, Employment Discrimination Law 53–54 (5th ed. 2021) (discussing aforementioned statutes). The Court, however, has eschewed burden shifting under certain other employment discrimination statutes, see id.; Gross v. FBL Fin. Servs., 557 U.S. 167, 178–79 (2009) (not applying burden shifting in a case under the Age Discrimination in Employment Act, 29 U.S.C. § 623(a) (2018)); id. at 179 (questioning the burden shifting approach generally). There may be some question, then, of whether the Court will continue to use the burden shifting framework where statutes do not specifically require it. ↑
  12.  Cf. McAdams, supra note 8, at 653 (“Perhaps the more fundamental basis for hostility to selective prosecution claims is that they are presented by the guilty.”). ↑
  13.  See, e.g., William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 511–12, 579–81 (2001) (arguing that prosecutorial discretion leads to over-criminalization but suggesting difficulties with eliminating such discretion); Stuntz, supra note 8, at 379 (arguing that prosecutorial discretion gives too much power to prosecutors, upsetting our system of checks and balances); Leslie B. Arffa, Note, Separation of Prosecutors, 128 Yale L.J. 1078, 1082 (2019) (noting that many see prosecutorial power as a central problem of the American criminal justice system); Hon. J. Harvie Wilkinson, In Defense of American Criminal Justice, 67 Vand. L. Rev. 1099, 1104–05, 1129–31 (2014) (describing critiques of prosecutorial discretion and citing authority). ↑
  14.  See Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 Stan. L. Rev. 869, 908–09 (2009); Wilkinson, supra note 13, at 1132 (providing reasons for prosecutorial discretion); Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 379–81 (1973) (detailing reasons why judicial review of prosecutorial discretion would be undesirable); cf. Hannah Shaffer, Prosecutors, Race, and the Criminal Pipeline, U. Chi. L. Rev. (forthcoming 2023) (manuscript at 1–2) (suggesting that limiting prosecutorial discretion or blinding them to defendants’ race may inadvertently offset prosecutors’ giving less weight to the criminal records of Black defendants than white defendants in decisions affecting incarceration); id. (manuscript at 25–26, 37, 45, 54) (not attributing the lesser weight to records of Black defendants to progressive elected prosecutors, although finding that beliefs of individual prosecutors affected results). Our views thus could be characterized as a “checks and balances” approach, under which prosecutors’ offices adopt organizational structures that reduce incentives and opportunities to pursue constitutionally improper motives, rather than a “separation of powers” approach—that is, an approach that involves other branches of government—to regulate prosecutorial discretion. See Daniel Epps, Checks and Balances in the Criminal Law, 74 Vand. L. Rev. 1, 4–5 (2021) (contrasting checks and balances approaches with separation of powers approaches); id. at 73–74 (recommending separation of functions within prosecutors’ offices, as suggested by Barkow). ↑
  15.  Cf. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2573 (2019) (discussing that agency decisions are often informed by politics). ↑
  16.  See Sandra G. Mayson, Bias In, Bias Out, 128 Yale L.J. 2218, 2257–58 (2019) (referring to studies suggesting some crimes may be committed disproportionately by different groups); Jennifer L. Skeem & Christopher T. Lowenkamp, Risk, Race and Recidivism: Predictive Bias and Disparate Impact, 54 Criminology 680, 690 (2016) (noting the debate as to whether differential participation or differential selection causes racial disparities in criminal justice). ↑
  17.  139 S. Ct. 1715, 1724, 1727 (2019). ↑
  18.  See, e.g., United States v. Washington, 869 F.3d 193, 220–21 (3d Cir. 2017); infra note 70 (describing differing views in the circuit courts). ↑
  19.  See Erin E. McMannon, The Demise of § 1983 Malicious Prosecution: Separating Tort Law from the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1485, 1493 (2019) (discussing varying standards and citing cases and secondary authority); Lyle Kossis, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1646–48 (2013) (discussing various standards). ↑
  20.  See, e.g., Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99–101 (1st Cir. 2013) (alluding to differences among the circuits). ↑

  21.  Compare Kossis, supra note 19, at 1662–63 (favoring use of common law elements), with McMannon, supra note 19, at 1504 (disfavoring use of common law elements in favor of a Fourth Amendment-based framework). ↑

Relational Fairness in the Administrative State

­

The American administrative state suffers from widespread claims of normative illegitimacy because administrative agencies and their personnel are neither enshrined in the Constitution nor directly elected. As a result, Supreme Court Justices and commentators openly question whether agencies should be able to compel citizens to follow agency actions. Normative legitimacy is important to administrative agencies because it explains why people have moral duties to obey agency rules, including rules with which they may disagree, even though agencies lack the traditional hallmarks of democratic governance.

This Article answers the critics head-on by proposing a new theory of normative legitimacy for the administrative state called “relational fairness.” Relational fairness states that all persons potentially affected by agency action must have the opportunity to deliberate with the agency during administrative decision-making according to certain procedural, relational, and substantive values. In contrast to previous theories that attempted to legitimate agencies by connecting them to other political institutions, relational fairness articulates how the administrative state can attain normative legitimacy in its own right by establishing a new democratic relationship between agencies and citizens.

Although some courts have shown implicit concern for relational fairness, fully adopting the theory would lead to important doctrinal and policy changes to improve the legitimacy of the American administrative state. Relational fairness leads to a deferential form of arbitrariness review that reduces the ability of judges to insert their own ideological ends, reintroduces the importance of regulating agency ex parte communications, and unifies legal rules on valid agency usage of guidance documents. The theory also argues notice-and-comment rulemaking is illegitimate and advocates for alternative informal rulemaking structures to improve the legitimacy of agencies.

Introduction

Since the New Deal ushered in the contemporary administrative state, lawyers and scholars have attempted to legitimate its place in our democratic government.1 1.Michael P. Vandenbergh, The Private Life of Public Law, 105 Colum. L. Rev. 2029, 2035 (2005) (“Agencies are neither mentioned in the Constitution nor directly responsive to the electorate, leaving their democratic legitimacy unclear.”).Show More The task is difficult. Unlike Congress and the President, agency staff are not elected.2 2.U.S. Const. art. III. The Constitution does mention “[d]epartments” in the Opinions Clause, so the Framers perhaps contemplated the existence of some type of agency. Id. art. II, § 2, cl. 1. However, there is no substantive discussion of the form or structure such institutions should take.Show More Unlike the judiciary, the Constitution does not delineate the structure of agencies.3 3.Edward H. Stiglitz, Delegating for Trust, 166 U. Pa. L. Rev. 633, 635 (2018) (“The administrative state is an awkward creature in our constitutional system—in the eyes of many, an unseemly chimera . . . .”).Show More The fact that agencies express power through methods that span the branches makes things even more problematic for their legitimation.4 4.Administrative Procedure Act, 5 U.S.C. §§ 553–554. Some administrative action falls under the Take Care Clause. U.S. Const. art. II, § 3. The constitutional derivation of the independent agency and “mixed” agencies, which perform both rulemaking and adjudication, is more complicated. See Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935) (holding that the President has limited removal power over agency officials acting in a “quasi-legislative and quasi-judicial” capacity).Show More Executing laws is the province of the executive, rulemaking looks like legislation, and adjudications mimic the work of the judiciary.5 5.“Administrative state” comprises the group of political institutions in government not located in Congress or the Executive Office that therefore have some insulation from these branches. This being said, as Datla and Revesz show, the level of agency independence from the branches is a matter of degree and not a binary variable. Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 772–73 (2013). “The administrative state” is commonly used to describe the post-New Deal conglomeration of independent and executive agencies and has its origin in nineteenth-century French and German writings on administration (“1’état administratif” and “die verwaltungsstaat,” respectively). Mark Rutgers, Beyond Woodrow Wilson: The Identity of the Study of Public Administration in Historical Perspective, 29 Admin. & Soc’y 276, 285–90 (1997); see also Dwight Waldo, The Administrative State (1948) (popularizing the term “the administrative state” to American audiences).Show More These features put the administrative state6 6.For examples, see infra note 18.Show More in an uncomfortable position in our democratic system.7 7.Cynthia R. Farina et al., Rulemaking in 140 Characters or Less: Social Networking and Public Participation in Rulemaking, 31 Pace L. Rev. 382, 385 (2011) [hereinafter Farina et al., Rulemaking in 140 Characters].Show More

Despite this problem of administrative legitimation, agencies express power to regulate seemingly every aspect of modern life.8 8.John M. de Figueiredo & Edward H. Stiglitz, Democratic Rulemaking, in 3 The Oxford Handbook of Law and Economics 38 (Francesco Parisi ed., 2017).Show More In 2013, administrative agencies finalized over 2,800 rules.9 9.Regulatory Information Database, U.S. Gen. Servs. Admin., https://www.reginfo.gov [https://perma.cc/7VVD-2U6Z] (last visited Mar. 12, 2023).Show More Fifty-one of those rules each had over $100 million in economic effects.10 10.Bernardo Zacka, When the State Meets the Street 9 (2017).Show More Agencies are also responsible for regulating and administrating important programs, such as Medicaid, Medicare, Social Security, and the Veterans Health Administration, that directly affect the lives of millions. Bureaucrats make crucial decisions that govern citizens across the country, including deciding who is eligible for public services and how much of these services they will receive.11 11.K. Sabeel Rahman, Democracy Against Domination 144 (2016) (“[A]gencies are, in practice, the primary sites of policymaking, giving specificity and concreteness to broad legislative directives.”).Show More In short, agencies are the primary site of policymaking in contemporary democratic governance.12 12.Normative legitimacy is also called “moral legitimacy.” Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1794–802 (2005).Show More

Do people who disagree with agency decisions still have moral duties to obey those actions? This is a question of normative legitimacy, which determines whether people have moral obligations to follow agency actions.13 13.Descriptive legitimacy is also called “sociological legitimacy.”Show More Normative legitimacy is different from descriptive legitimacy, which describes why people subjectively believe they should follow agency actions.14 14.Id.Show More It is also different from legality: whether rules are validly generated through the rule-generating conventions of a polity.15 15.This definition is derived from John Rawls. John Rawls, Political Liberalism 224–26 (expanded ed. 2005) [hereinafter Rawls, Political Liberalism].Show More Normative legitimacy requires the justification of agency power over citizens and organizations such that these persons have a moral duty to comply with agency actions, even if they disagree with particular agency decisions.16 16.See infra Part II.Show More Legal commentators have previously proposed multiple theories to legitimate administrative agencies. Although these previous theories are intuitively attractive, they all run into well-known problems.17 17.See, e.g., Philip Hamburger, Is Administrative Law Unlawful? 355 (2014) (“[C]an the Secretary of the Department of Agriculture legislate? He is not a representative body, let alone the constitutionally established representative body. So how can he be assumed to legislate with consent of the people? And if without their consent . . . how can his commands have any legal obligation?”); R. Shep Melnick, The Transformation of Title IX 251 (2018) (criticizing court-agency “leapfrogging” that incrementally increases agencies’ authority without requiring them to accumulate evidence, experience, or public input); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1231 (1994) (arguing that the post-New Deal administrative state is unconstitutional); see also Gillian E. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 8–33 (2017) (discussing the recent attacks on the administrative state).Show More

The inability of lawyers and legal scholars to normatively legitimate agencies has led to fierce criticism that agencies conflict with our democratic government;18 18.See, e.g., Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring) (stating that the major questions and nondelegation doctrines prevent “government by bureaucracy supplanting government by the people” (quoting Antonin Scalia, A Note on the Benzene Case, 4 Regulation 25, 27 (July/Aug. 1980))); Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 91 (2015) (Thomas, J., concurring) (referring to “an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure”); Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 108 (2015) (Alito, J., concurring in part) (describing a U.S. Court of Appeals for the D.C. Circuit procedural innovation as “prompted by an understandable concern about the aggrandizement of the power of administrative agencies”); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010) (“The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.”).Show More a view that is increasingly gaining traction on the Supreme Court.19 19.140 S. Ct. 2183, 2207 (2020).Show More In his recent majority opinion in Seila Law LLC v. Consumer Financial Protection Bureau ruling that the structure of the Consumer Financial Protection Bureau (“CFPB”) violated the separation of powers,20 20.Id. at 2200.Show More Chief Justice Roberts wrote that the liberty of the citizenry was threatened by the Bureau’s independent director because the CFPB Director could “bring the coercive power of the state to bear on millions of private citizens and businesses.”21 21.See supra note 19.Show More Other Justices have echoed the Chief Justice’s concern in multiple recent administrative law cases.22 22.See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1758–66 (2007) (discussing shifts in administrative law doctrine as courts have shifted their operating theories of administrative legitimacy over the twentieth century).Show More

The longstanding inability to legitimate the administrative state has caused sweeping changes to administrative law as scholars and judges have searched for a theory to justify and structure agency policymaking.23 23.See Ronald M. Levin, Rulemaking and the Guidance Exemption, 70 Admin. L. Rev. 263, 268 (2018) (“[C]ourts have not developed a coherent theory as to what an interpretive rule is.”); Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 Duke L.J. 1051, 1065–66 (1995) (“[T]he arbitrary and capricious standard is relatively open-ended, and the Supreme Court has not given it more precise content.”); Louis J. Virelli III, Deconstructing Arbitrary and Capricious Review, 92 N.C. L. Rev. 721, 750, 751 n.116 (2014) (noting “the apparent difficulty experienced by the Court in articulating a consistent, coherent framework for explaining its reasoning” during hard look review).Show More The accumulation of these doctrinal changes over time has caused multiple areas of administrative law, including arbitrariness review and agency use of the Administrative Procedure Act’s (“APA”) exceptions to notice-and-comment rulemaking, to lack coherent organizing principles.24 24.See infra Subsection IV.A.2.ii (discussing persistent circuit splits and courts failing to provide a rule in cases regarding whether agencies correctly utilized APA exceptions to notice-and-comment).Show More At worst, these doctrinal shifts have led to persistent circuit splits and left courts confused when attempting to determine the governing rules for the cases before them.25 25.See Metzger, supra note 18, at 7 (arguing that the administrative state promotes good government and constrains executive power); Adrian Vermeule, Bureaucracy and Distrust: Landis, Jaffe, and Kagan on the Administrative State, 130 Harv. L. Rev. 2463, 2487–88 (2017) (endorsing a “pluralist” approach to legitimizing the administrative state and criticizing various “independence” theories); Cass R. Sunstein & Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 Sup. Ct. Rev. 41, 44 (claiming that the administrative state provides benefits like government efficiency, coordinated policymaking, and energetic execution of the laws).Show More

While supporters of contemporary administrative governance have recently defended it on legal and policy grounds,26 26.See Blake Emerson, Liberty and Democracy Through the Administrative State: A Critique of the Roberts Court’s Political Theory, 73 Hastings L.J. 371, 375 (2022) [hereinafter Emerson, Liberty and Democracy Through the Administrative State] (“The Court’s most vocal defenders of the administrative state, Justice Kagan and Justice Breyer, tend to wave away the conservatives’ high-altitude critique of the regulatory state.”); see also Vermeule, supra note 26, at 2463 (focusing on the descriptive legitimacy of the administrative state); Cass R. Sunstein & Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State 3 n.5 (2020) (focusing on the legal legitimacy of the administrative state). But see Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 165–75 (2019) [hereinafter Emerson, The Public’s Law] (arguing for a democratization of agency policymaking partly on legitimacy grounds).Show More they have largely not addressed critics’ attacks on the normative legitimacy of the administrative state.27 27.See Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev. 265, 271–72 (2019) (forgoing federal administrative legitimacy and looking to state administrative institutions for legitimacy); Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 Chi.-Kent L. Rev. 987, 989 (1997) (arguing there is no unified theory of democratic legitimation of the administrative state); Mark Seidenfeld, The Quixotic Quest for a “Unified” Theory of the Administrative State, in Issues in Legal Scholarship, 2005, at 15 (same); Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276, 1381 (1984) (same).Show More The theoretical task is so daunting that some supporters of administrative governance argue that we should give up looking for a theory of normative administrative legitimacy.28 28.Camilla Stivers, Governance in Dark Times: Practical Philosophy for Public Service 10–11 (2008).Show More

This concession is a mistake. The Chief Justice in Seila Law is correct to worry about the power of administrative agencies because they exert vast powers over citizens and organizations in our society.29 29.See Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 Yale L.J. 804, 811 (2014) (arguing that administrative law has been dominated by concerns about democratic control of agencies by Congress or the President); Peter L. Strauss, Legislation That Isn’t—Attending to Rulemaking’s “Democracy Deficit”, 98 Calif. L. Rev. 1351, 1357 (2010) (arguing that agency discretion is legitimated by judicial review).Show More Administrative power must be legitimated on normative grounds in democratic governance. The question is whether supporters of administrative governance can rise to this challenge to answer the Justices’ concerns. This Article addresses the concerns of the Chief Justice and recent critics head-on to generate a theory of administrative legitimacy that gives the administrative state a proper place in our democratic government.

Most previous theories of administrative legitimacy attempted to legitimate agencies through a “derivative” method of legitimacy, linking agencies to other institutions, such as Congress, the president, or courts.30 30.See infra Section II.E.Show More While intuitively appealing, legitimating agencies through other institutions runs into problems due to the distinctive structure and function of agencies.31 31.Richard Stewart’s interest representation and Mark Seidenfeld’s civic republicanism are two notable exceptions. See infra Section II.D (critiquing civic republicanism); see infra Subsection III.A.1 (critiquing interest group representation). More recently, a few scholars, such as Blake Emerson, Sabeel Rahman, and Dan Walters, have also focused their analysis on agency structure and process. See infra Section III.D (discussing these recent theories).Show More Instead, this Article develops a “direct” theory of legitimacy that legitimates the administrative state on its own terms. Interestingly, one intuition underlying previous derivative theories is the belief that linking agencies to other institutions can indirectly connect agencies to citizens. Therefore, a promising route to directly legitimate agencies is to cut out the middle institution and focus on the structure of the actual relationship between agencies and citizens.

Surprisingly, lawyers and scholars have spent little time theoretically analyzing the direct relationships between agencies and persons when theorizing about the legitimacy of the administrative state.32 32.See Anya Bernstein & Cristina Rodríguez, The Accountable Bureaucrat, 132 Yale L.J. 1600, 1607–09 (2023); Nicholas R. Parrillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, 36 Yale J. on Regul. 165, 191–200 (2019).Show More This being said, recent empirical work has highlighted the role that deeply embedded relationships between agency officials and persons serve to substantiate important administrative values, such as agency effectiveness and democratic accountability, in practice.33 33.See infra Section III.C.Show More The importance of the relationships between agencies and persons to our administrative state demands proper theorization.

This Article develops the theory of relational fairness to normatively legitimate administrative governance as part of our democratic government. Relational fairness states that all persons potentially affected by an agency action must have the opportunity to deliberate with the agency during administrative decision-making.34 34.See infra Subsection III.C.3.Show More The theory reveals that agencies stand in different normative relationships with persons based on whether a person is potentially affected by a prospective agency action. Relational fairness articulates how the administrative state itself should be structured to attain normative legitimacy based on its own relationships with members of civil society, rather than derivatively through its connections to other institutions.

Relational fairness contains three components: procedural values, relational values, and substantive safeguards. The theory begins with familiar procedural values to structure agency deliberation with affected parties as open, voluntary, equal in access, and ongoing. It continues with substantive safeguards that limit the potential results of agency deliberations according to certain constitutional and deliberative requirements. However, relational fairness departs from existing theories by shaping the interpersonal relations between agencies and affected persons on the grounds of equal status, respect, and good faith. Practically, including relational values in the theory allows relational fairness to address persistent political inequalities between persons in administrative policymaking that procedural and substantive reforms alone cannot solve.35 35.See infra Part IV.Show More

Although some courts have implicitly embraced relational fairness, fully adopting the theory would lead to important doctrinal and policy changes to improve the legitimacy of the American administrative state.36 36.See infra Subsection IV.A.1.Show More Importantly, relational fairness organizes the various parts of arbitrariness review based on whether a regulation is “arbitrary and capricious” from the perspective of affected persons. Surprisingly, focusing on the perspective of affected persons provides both justification and content for a deferential form of arbitrariness review that leaves less room for judges to insert their own ideological beliefs during judicial review.37 37.See infra Subsection IV.A.2.Show More

Relational fairness also demonstrates that the growing movement to improve administrative governance through a focus on internal administrative law has been hitherto blind to the profound effect that internal agency rules can have on the relationship between agencies and affected parties.38 38.See infra Subsection IV.B.1.Show More The doctrines of ex parte communications and the APA exceptions to informal rulemaking demonstrate this tension between relational fairness and internal administrative law. Instead of recent calls to enhance agency power in these areas, relational fairness advocates that Congress should require agency disclosure of ex parte communications to all affected parties and that federal courts should adopt a unified legal test to review whether agencies validly used an APA exception to notice-and-comment based on whether the agency action in question binds potentially affected parties.

Relational fairness reconceptualizes the value of public participation in administrative law.39 39.See infra Subsection IV.B.1.Show More The theory argues that members of civil society stand in distinct normative relationships with agencies, which should inform how we structure public participation during agency policymaking. When we view participation in this light, notice-and-comment rulemaking appears deficient on legitimacy grounds because of the political inequalities it generates for marginalized and geographically dispersed affected persons.40 40.See infra Subsections IV.B.2, IV.B.3.Show More Some congressional and agency reforms to notice-and-comment, such as negotiated rulemaking, serve as helpful guides to improve informal rulemaking, while others, such as most e-rulemaking efforts, fail to eliminate the problems in notice-and-comment.41 41.See infra Section I.B.Show More

Relational fairness resolves multiple problems endemic to administrative law. These problems include the ability of agencies to generate moral obligations on citizens to follow agency rules, the tension between democracy and administration, and the mood of agency distrust that permeates administrative law.footnote_id_43_42 Relational fairness responds to Chief Justice Roberts and others concerned with agency power over citizens by showing how to properly structure the direct relationship between agencies and the persons they govern to legitimate agency power to govern. By normatively legitimating the administrative state, relational fairness allows agencies to take their place as part of our democratic government.

This Article unfolds as follows. Part I demonstrates the legal importance of normatively legitimating the administrative state and begins to construct a theory of administrative legitimacy. Part II contends that although previously proposed theories of administrative legitimacy are intuitively appealing, they each run into problems. Instead of seeking a pluralistic account of legitimacy that combines these theories, this Part identifies their underlying similarities to shape an alternative theory based on the direct relationship between agencies and persons. Part III creates the theory of relational fairness, which legitimates the administrative state from the bottom up by properly structuring the direct relationship between agencies and citizens based on the distinctive institutional features of agencies. Importantly, relational fairness can legitimate agencies as part of our democratic government once we embrace a conception of democratic participation that moves beyond merely viewing elections as sufficient for democratic governance.

Part IV discusses how some courts have already implicitly embraced relational fairness and demonstrates how to fully implement the theory in order to improve the legitimacy of the American administrative state. This Part explains how relational fairness should guide reform in multiple areas of administrative law, including arbitrariness review, ex parte communications, and the APA exceptions to informal rulemaking. It also argues that notice-and-comment rulemaking is deficient on legitimacy grounds and proposes potential reforms to improve the legitimacy of informal rulemaking. Part V rebuts three criticisms to applying relational fairness: inefficiency, regulatory capture, and the implementation of the theory.

  1.  See, e.g., James O. Freedman, Crisis and Legitimacy: The Administrative Process and American Government 6 (1978) (discussing the longstanding crisis of legitimacy surrounding the administrative state); James M. Landis, The Administrative Process 1 (1938) (discussing how the administrative state can improve modern governance); Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2383–84 (2001) (endorsing the trend toward greater presidential control over administrative agencies); Mark Seidenfeld, A Civic Republican Justification for the Bureaucratic State, 105 Harv. L. Rev. 1511, 1515 (1992) (arguing that civic republican theory provides legitimacy for the administrative state); Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1767, 1802 (1975) (arguing against the ability of the interest representation theory to legitimate the administrative state). ↑

  2.  Michael P. Vandenbergh, The Private Life of Public Law, 105 Colum. L. Rev. 2029, 2035 (2005) (“Agencies are neither mentioned in the Constitution nor directly responsive to the electorate, leaving their democratic legitimacy unclear.”). ↑

  3.  U.S. Const. art. III. The Constitution does mention “[d]epartments” in the Opinions Clause, so the Framers perhaps contemplated the existence of some type of agency. Id. art. II, § 2, cl. 1. However, there is no substantive discussion of the form or structure such institutions should take. ↑

  4.  Edward H. Stiglitz, Delegating for Trust, 166 U. Pa. L. Rev. 633, 635 (2018) (“The administrative state is an awkward creature in our constitutional system—in the eyes of many, an unseemly chimera . . . .”). ↑

  5.  Administrative Procedure Act, 5 U.S.C. §§ 553–554. Some administrative action falls under the Take Care Clause. U.S. Const. art. II, § 3. The constitutional derivation of the independent agency and “mixed” agencies, which perform both rulemaking and adjudication, is more complicated. See Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935) (holding that the President has limited removal power over agency officials acting in a “quasi-legislative and quasi-judicial” capacity). ↑

  6.  “Administrative state” comprises the group of political institutions in government not located in Congress or the Executive Office that therefore have some insulation from these branches. This being said, as Datla and Revesz show, the level of agency independence from the branches is a matter of degree and not a binary variable. Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 772–73 (2013). “The administrative state” is commonly used to describe the post-New Deal conglomeration of independent and executive agencies and has its origin in nineteenth-century French and German writings on administration (“1’état administratif” and “die verwaltungsstaat,” respectively). Mark Rutgers, Beyond Woodrow Wilson: The Identity of the Study of Public Administration in Historical Perspective, 29 Admin. & Soc’y 276, 285–90 (1997); see also Dwight Waldo, The Administrative State (1948) (popularizing the term “the administrative state” to American audiences). ↑

  7.  For examples, see infra note 18. ↑

  8.  Cynthia R. Farina et al., Rulemaking in 140 Characters or Less: Social Networking and Public Participation in Rulemaking, 31 Pace L. Rev. 382, 385 (2011) [hereinafter Farina et al., Rulemaking in 140 Characters]. ↑

  9.  John M. de Figueiredo & Edward H. Stiglitz, Democratic Rulemaking, in 3 The Oxford Handbook of Law and Economics 38 (Francesco Parisi ed., 2017). ↑

  10.  Regulatory Information Database, U.S. Gen. Servs. Admin., https://www.reginfo.gov [https://perma.cc/7VVD-2U6Z] (last visited Mar. 12, 2023). ↑

  11.  Bernardo Zacka, When the State Meets the Street 9 (2017). ↑

  12.  K. Sabeel Rahman, Democracy Against Domination 144 (2016) (“[A]gencies are, in practice, the primary sites of policymaking, giving specificity and concreteness to broad legislative directives.”). ↑

  13.  Normative legitimacy is also called “moral legitimacy.” Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1794–802 (2005). ↑

  14.  Descriptive legitimacy is also called “sociological legitimacy.” ↑

  15.  Id. ↑

  16.  This definition is derived from John Rawls. John Rawls, Political Liberalism 224–26 (expanded ed. 2005) [hereinafter Rawls, Political Liberalism]. ↑

  17.  See infra Part II. ↑

  18.  See, e.g., Philip Hamburger, Is Administrative Law Unlawful? 355 (2014) (“[C]an the Secretary of the Department of Agriculture legislate? He is not a representative body, let alone the constitutionally established representative body. So how can he be assumed to legislate with consent of the people? And if without their consent . . . how can his commands have any legal obligation?”); R. Shep Melnick, The Transformation of Title IX 251 (2018) (criticizing court-agency “leapfrogging” that incrementally increases agencies’ authority without requiring them to accumulate evidence, experience, or public input); Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1231 (1994) (arguing that the post-New Deal administrative state is unconstitutional); see also Gillian E. Metzger, The Supreme Court, 2016 Term—Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 1, 8–33 (2017) (discussing the recent attacks on the administrative state). ↑

  19.  See, e.g., Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring) (stating that the major questions and nondelegation doctrines prevent “government by bureaucracy supplanting government by the people” (quoting Antonin Scalia, A Note on the Benzene Case, 4 Regulation 25, 27 (July/Aug. 1980))); Dep’t of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 91 (2015) (Thomas, J., concurring) (referring to “an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure”); Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 108 (2015) (Alito, J., concurring in part) (describing a U.S. Court of Appeals for the D.C. Circuit procedural innovation as “prompted by an understandable concern about the aggrandizement of the power of administrative agencies”); Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 499 (2010) (“The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people.”). ↑

  20.  140 S. Ct. 2183, 2207 (2020). ↑

  21.  Id. at 2200. ↑

  22.  See supra note 19. ↑

  23.  See Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. Rev. 1749, 1758–66 (2007) (discussing shifts in administrative law doctrine as courts have shifted their operating theories of administrative legitimacy over the twentieth century). ↑

  24.  See Ronald M. Levin, Rulemaking and the Guidance Exemption, 70 Admin. L. Rev. 263, 268 (2018) (“[C]ourts have not developed a coherent theory as to what an interpretive rule is.”); Sidney A. Shapiro & Richard E. Levy, Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 Duke L.J. 1051, 1065–66 (1995) (“[T]he arbitrary and capricious standard is relatively open-ended, and the Supreme Court has not given it more precise content.”); Louis J. Virelli III, Deconstructing Arbitrary and Capricious Review, 92 N.C. L. Rev. 721, 750, 751 n.116 (2014) (noting “the apparent difficulty experienced by the Court in articulating a consistent, coherent framework for explaining its reasoning” during hard look review). ↑

  25.  See infra Subsection IV.A.2.ii (discussing persistent circuit splits and courts failing to provide a rule in cases regarding whether agencies correctly utilized APA exceptions to notice-and-comment). ↑

  26.  See Metzger, supra note 18, at 7 (arguing that the administrative state promotes good government and constrains executive power); Adrian Vermeule, Bureaucracy and Distrust: Landis, Jaffe, and Kagan on the Administrative State, 130 Harv. L. Rev. 2463, 2487–88 (2017) (endorsing a “pluralist” approach to legitimizing the administrative state and criticizing various “independence” theories); Cass R. Sunstein & Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 Sup. Ct. Rev. 41, 44 (claiming that the administrative state provides benefits like government efficiency, coordinated policymaking, and energetic execution of the laws). ↑

  27.  See Blake Emerson, Liberty and Democracy Through the Administrative State: A Critique of the Roberts Court’s Political Theory, 73 Hastings L.J. 371, 375 (2022) [hereinafter Emerson, Liberty and Democracy Through the Administrative State] (“The Court’s most vocal defenders of the administrative state, Justice Kagan and Justice Breyer, tend to wave away the conservatives’ high-altitude critique of the regulatory state.”); see also Vermeule, supra note 26, at 2463 (focusing on the descriptive legitimacy of the administrative state); Cass R. Sunstein & Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State 3 n.5 (2020) (focusing on the legal legitimacy of the administrative state). But see Blake Emerson, The Public’s Law: Origins and Architecture of Progressive Democracy 165–75 (2019) [hereinafter Emerson, The Public’s Law] (arguing for a democratization of agency policymaking partly on legitimacy grounds). ↑

  28.  See Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev. 265, 271–72 (2019) (forgoing federal administrative legitimacy and looking to state administrative institutions for legitimacy); Cynthia R. Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 Chi.-Kent L. Rev. 987, 989 (1997) (arguing there is no unified theory of democratic legitimation of the administrative state); Mark Seidenfeld, The Quixotic Quest for a “Unified” Theory of the Administrative State, in Issues in Legal Scholarship, 2005, at 15 (same); Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 Harv. L. Rev. 1276, 1381 (1984) (same). ↑

  29.  Camilla Stivers, Governance in Dark Times: Practical Philosophy for Public Service 10–11 (2008). ↑

  30.  See Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 Yale L.J. 804, 811 (2014) (arguing that administrative law has been dominated by concerns about democratic control of agencies by Congress or the President); Peter L. Strauss, Legislation That Isn’t—Attending to Rulemaking’s “Democracy Deficit”, 98 Calif. L. Rev. 1351, 1357 (2010) (arguing that agency discretion is legitimated by judicial review). ↑

  31.  See infra Section II.E. ↑

  32.  Richard Stewart’s interest representation and Mark Seidenfeld’s civic republicanism are two notable exceptions. See infra Section II.D (critiquing civic republicanism); see infra Subsection III.A.1 (critiquing interest group representation). More recently, a few scholars, such as Blake Emerson, Sabeel Rahman, and Dan Walters, have also focused their analysis on agency structure and process. See infra Section III.D (discussing these recent theories). ↑

  33.  See Anya Bernstein & Cristina Rodríguez, The Accountable Bureaucrat, 132 Yale L.J. 1600, 1607–09 (2023); Nicholas R. Parrillo, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries, 36 Yale J. on Regul. 165, 191–200 (2019). ↑

  34.  See infra Section III.C. ↑

  35.  See infra Subsection III.C.3. ↑

  36.  See infra Part IV. ↑

  37.  See infra Subsection IV.A.1. ↑

  38.  See infra Subsection IV.A.2. ↑

  39.  See infra Subsection IV.B.1. ↑

  40.  See infra Subsection IV.B.1. ↑

  41.  See infra Subsections IV.B.2, IV.B.3. ↑

  42.  See infra Section I.B. ↑

How Clear is “Clear”?

This Article proposes a 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 evidence rules, instructs 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 evidence rules 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 decision rules, instead tells 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 decision rules 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.

With the new framework in place, this Article then goes on to address the increasingly popular categorical objection to “clear” text doctrines. 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.

Introduction

Everyone agrees that courts must adhere to “clear” or “plain” text.1 1.As a matter of positive law, that is. E.g., Universal Health Servs., Inc. v. United States, 579 U.S. 176, 192 (2016) (“[P]olicy arguments cannot supersede the clear statutory text.”); Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) (“As in any case of statutory construction, our analysis begins with ‘the language of the statute.’ And where the statutory language provides a clear answer, it ends there as well.” (quoting Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992))); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95–96 (1820) (“The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction.”).Show More But what to do when a statute is “ambiguous” or its meaning is otherwise uncertain?2 2.Ralf Poscher, Ambiguity and Vagueness in Legal Interpretation, in The Oxford Handbook of Language and Law 128, 128 (Peter M. Tiersma & Lawrence M. Solan eds., 2012) (observing that “[i]n a colloquial sense, both vagueness and ambiguity are employed generically to indicate indeterminacy,” but that “[i]n a more technical sense . . . ambiguity and vagueness are far more specific phenomena”).Show More Numerous legal doctrines condition the permissibility of some judicial action in a statutory case upon the statute at issue being less than “clear” or “plain.” Courts may, for example, defer to an administering agency (Chevron deference),3 3.Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).Show More avoid answering a constitutional question (constitutional avoidance),4 4.Crowell v. Benson, 285 U.S. 22, 62 (1932) (“When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.”).Show More or consider legislative history if a statutory text has more than one plausible meaning, but not otherwise.5 5.NLRB v. SW Gen., Inc., 137 S. Ct. 929, 941–42 (2017); Ratzlaf v. United States, 510 U.S. 135, 147–48 (1994) (“[W]e do not resort to legislative history to cloud a statutory text that is clear.”).Show More Taken together, these various doctrines make textual “clarity” (or, alternatively, “plainness”) the central organizing principle for much of our law of statutory interpretation.6 6.See William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1082 (2017) (“Interpretation isn’t just a matter of language; it’s also governed by law.”).Show More And, indeed, the same has been true (albeit to varying degrees7 7.See, e.g., United States v. Am. Trucking Ass’ns, Inc., 310 U.S. 534, 543–44 (1940) (“When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial [inspection].’” (first quoting Bos. Sand & Gravel Co. v. United States, 278 U.S. 41, 48 (1928); and then quoting Helvering v. N.Y. Tr. Co., 292 U.S. 455, 465 (1934))).Show More) going back to Chief Justice Marshall, who remarked that where “words in the body of the statute” are “plain,” there is “nothing . . . left to construction,” but that where ambiguity remains, “the mind . . . seizes every thing from which aid can be derived.”8 8.United States v. Fisher, 6 U.S. (2 Cranch) 358, 385–86 (1805).Show More

Because it is a doctrinal “linchpin,”9 9.Ward Farnsworth, Dustin F. Guzior & Anup Malani, Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation, 2 J. Legal Analysis 257, 257 (2010) (“Determinations of ambiguity are the linchpin of statutory interpretation.”).Show More a great deal often turns on whether a statutory text is “clear” (or “plain”) or not.10 10.Lawrence M. Solan, Pernicious Ambiguity in Contracts and Statutes, 79 Chi.-Kent L. Rev. 859, 861 (2004) (“Part of the problem is that the law has only two ways to characterize the clarity of a legal text: It is either plain or it is ambiguous. The determination is important.”).Show More Perhaps for that reason, however, scholars and jurists have started to question whether it makes sense, either in principle or as a matter of practice, to assign so much importance to clarity determinations. There are those who have asked why courts should “seize” that “from which aid can be derived” only if the text is “ambiguous.”11 11.See William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev. 539, 547 (2017); Adam M. Samaha, If the Text Is Clear—Lexical Ordering in Statutory Interpretation, 94 Notre Dame L. Rev. 155, 177 (2018).Show More Or, as Justice Stevens put it, “[W]hy . . . confine ourselves to . . . the statutory text if other tools of statutory construction provide better evidence”?12 12.Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 106 (2007) (Stevens, J., concurring).Show More Others, like Justice Kavanaugh, are even more skeptical and query whether we even know what it means to say that a statutory text is “clear.”13 13.See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2118 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014)).Show More Going further still, Judge Easterbrook asserts with characteristic bluntness: “There is no metric for clarity.”14 14.Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 62 (1988) (emphasis added).Show More

This Article attempts to clarify15 15.(Ha ha.)Show More the increasingly dogmatic discussion surrounding the range of “clear” text doctrines.16 16.This Article addresses doctrines that assign significance to the “clarity” of statutory text, as opposed to clarity of the law more generally. See Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev. 1497, 1505–07 (2019) (addressing the latter). On the relevance of that distinction, see infra notes 162–67 and accompanying text.Show More As it explains, in working through the question of “how clear is clear enough?” we need to ascertain first what type of clarity we are talking about. As such, it is important to note that clarity doctrines can actually be sorted into two distinct types, with largely distinct concerns associated with each. The first type, which operates as evidence rules, raises largely epistemological concerns to the extent that they structure a court’s inquiry into what a statute means.17 17.See infra Section I.A.Show More Because they organize a court’s search for statutory meaning, the concerns associated with this type of doctrine are largely epistemological—they function, in other words, to help judges form true beliefs about what statutes mean. More specifically, these doctrines tell courts to “start with the text,”18 18.Adam M. Samaha, Starting with the Text—On Sequencing Effects in Statutory Interpretation and Beyond, 8 J. Legal Analysis 439, 440 (2016).Show More and to consider additional sources of statutory meaning only if absolutely necessary.19 19.Here and throughout, this Article uses the phrase “statutory meaning” to refer to the communicative content expressed by statutory text as used—roughly, Congress’s apparent communicative intention (or, alternatively, the conventional meaning of the language as used in the relevant context). See Mitchell N. Berman, The Tragedy of Justice Scalia, 115 Mich. L. Rev. 783, 796–99 (2017) (reviewing Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997)) (distinguishing communicative intention from other forms of intention); see also Richard H. Fallon Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1246–48 (2015) (calling this a statute’s “contextual” meaning). This Article takes no position on how best to conceive of Congress’s communicative intention (e.g., actual or “objectified”) or how best to identify it (e.g., whether to consider legislative history).Show More For reasons this Article explains, this sort of lexical ordering of evidence hinders an investigation except in unusual circumstances,20 20.See infra notes 43, 51 and accompanying text.Show More which is why evidence rules need to be carefully contained to such circumstances.

The second type of “clear” text doctrines operates, by contrast, as decision rules, instructing a court how to decide a statutory case when, despite its best efforts, it is not sure what the statute at issue means.21 21.See infra Section I.B.Show More In other words, the function of the second type of doctrine is not to help determine the meaning of a statute, but rather to provide guidance for how to decide a statutory case once it becomes apparent that the meaning of the statute at issue is not clear. The basic premise underlying decision rules is that, under conditions of uncertainty, sometimes erring in a particular direction constitutes “playing it safe.”22 22.Here and throughout, this Article uses the term “uncertainty” in a colloquial sense, encompassing both “risk” and “uncertainty” in the technical, decision-theoretic senses of those terms. See Daniel M. Hausman & Michael S. McPherson, Economic Analysis and Moral Philosophy 30–31 (1996) (contrasting situations of “risk,” in which the probabilities of the various possible outcomes are known, and situations of “uncertainty,” in which those probabilities are unknown).Show More The concerns associated with these doctrines are, in light of that premise, mostly practical. In each instance, the question is whether a court’s erring in the identified direction is actually “safer” than acting on its “best guess” or, alternatively, erring in some other direction. Is it, for example, safer to err in the direction of letting elected officials, via administrative agencies, decide how to resolve a case, or would this be a costly mistake, leading us down the road to administrative “tyranny”?23 23.Cf. City of Arlington v. FCC, 569 U.S. 290, 314–15 (2013) (Roberts, C.J., dissenting) (acknowledging that while it may be hyperbolic to describe Chevron deference as “the very definition of tyranny,” too much deference to administrative agencies may pose serious risks).Show More

Using the basic distinction between evidence rules and decision rules, this Article develops a framework for assessing individual “clear” text doctrines that is both completely new and also easy to administer. Within that framework, one asks first whether a given doctrine manages evidence in a determination of the meaning of a statute or, instead, manages uncertainty about how to proceed once the quest for meaning has come up short. If the doctrine manages evidence, one then goes on to determine whether the type of evidence it manages has some or all of the special characteristics that make lexical ordering of evidence epistemically sensible. If, alternatively, the doctrine manages uncertainty, one instead evaluates the risk analysis that underlies it: Is one type of mistake really costlier than the other, as the doctrine presupposes, and, if so, to what degree?

In addition, the distinction between evidence rules and decision rules provides a principled basis for answering long-standing questions concerning the relationship between different “clear” text doctrines—in particular, the order in which such doctrines should be applied.24 24.See Abbe R. Gluck, Justice Scalia’s Unfinished Business in Statutory Interpretation: Where Textualism’s Formalism Gave Up, 92 Notre Dame L. Rev. 2053, 2063 (2017) (“It remains unanswered whether a policy canon is still relevant if legislative history alone would clarify statutory language.”); James J. Brudney, Canon Shortfalls and the Virtues of Political Branch Interpretive Assets, 98 Calif. L. Rev. 1199, 1202 (2010) (worrying that the “lack of an intelligible framework for ordering the canons renders them distinctly more susceptible to judicial manipulation than other interpretive resources”).Show More As this Article explains, because decision rules help manage uncertainty that remains after the search for statutory meaning, it will almost always make sense for courts to apply any relevant evidence rule (e.g., the conditional admissibility of legislative history or Skidmore) before determining whether a statute is or is not “clear” for purposes of some decision rule (e.g., the rule of lenity or Chevron).25 25.See infra Sections III.C–D (discussing interactions between the rules articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and Skidmore v. Swift & Co., 323 U.S. 134 (1944)).Show More So understood, perhaps the most important implication for administrative law of drawing the distinction between evidence rules and decision rules is that doing so necessitates a rethinking of the relationship between the Skidmore and Chevron doctrines as complements rather than alternatives. In other words, Skidmore cannot coherently be thought of as a fallback option should Chevron cease to be treated as law, as is widely assumed.26 26.See, e.g., Buffington v. McDonough, 143 S. Ct. 14, 22 (2022) (Gorsuch, J., dissenting from denial of certiorari) (arguing that “the aggressive reading of Chevron has more or less fallen into desuetude” and “the whole project deserves a tombstone no one can miss”); James Romoser, In an Opinion that Shuns Chevron, The Court Rejects a Medicare Cut for Hospital Drugs, SCOTUSblog (Jun. 15, 2022, 2:24 PM), https://www.scotusblog.com/2022/06/in-an-opinion-that-shuns-chevron-the-court-rejects-a-medicare-cut-for-hospital-drugs/ [https://per‌ma.cc/XLW3-JYHR] (observing that “there might not be five votes to scrap Chevron officially, but the court could tacitly stop deploying it”). But see Nathan Richardson, Deference is Dead (Long Live Chevron), 73 Rutgers U. L. Rev. 441, 516–23 (2021) (arguing that Chevron is unlikely to be formally overturned).Show More

By itself, attending to the distinction between evidence rules and decision rules does not resolve the question of how clear a text has to be for purposes of various doctrines, or, as Justice Gorsuch put it, “How much ambiguity is enough?”27 27.Transcript of Oral Argument at 71–72, Am. Hosp. Ass’n v. Becerra, 142 S. Ct. 1896 (2022) (No. 20-1114).Show More Implicit in Justice Gorsuch’s question is an increasingly pervasive objection that all “clear” text doctrines are troubling insofar as there is no consensus among judges as to how clear a statutory text has to be to count as “clear.”28 28.See Meredith A. Holland, Note, The Ambiguous Ambiguity Inquiry: Seeking to Clarify Judicial Determinations of Clarity Versus Ambiguity in Statutory Interpretation, 93 Notre Dame L. Rev. 1371, 1372 (2018) (“[T]here is no established method governing the judge’s threshold determination of ambiguity versus clarity. In fact, there is no consistent definition of ambiguity.”); Frank H. Easterbrook, The Absence of Method in Statutory Interpretation, 84 U. Chi. L. Rev. 81, 90 (2017) (“[T]he Justices do not agree on what ‘ambiguity’ means for purposes of the rule [of lenity].”); Jeffrey A. Pojanowski, Without Deference, 81 Mo. L. Rev. 1075, 1082 (2016) (noting “lurking questions about how hard courts ought to work before deciding whether a statute is clear”); Kavanaugh, supra note 13, at 2138 (“The simple and troubling truth is that no definitive guide exists for determining whether statutory language is clear or ambiguous.”); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 520 (“Here, of course, is the chink in Chevron’s armor—the ambiguity that prevents it from being an absolutely clear guide to future judicial decisions (though still a better one than what it supplanted). How clear is clear?”).Show More Beyond that, many fear that because it is easy for judges to exaggerate or understate—whether consciously or unconsciously—how clear a text is, such doctrines facilitate results-oriented decision-making and thus undermine public confidence in an impartial judiciary.29 29.See Kavanaugh, supra note 13, at 2138–39; Dan T. Coenen, The Rehnquist Court, Structural Due Process, and Semisubstantive Constitutional Review, 75 S. Cal. L. Rev. 1281, 1304 (2002) (“On other occasions, however, the Justices may reveal substantive policy preferences not in formulating rules, but in applying them.”); Easterbrook, supra note 14, at 62 (“[C]ourt[s] may choose when to declare the language of the statute ‘ambiguous.’”); see also Solan, supra note 10, at 859 (“The problem, perhaps ironically, is that the concept of ambiguity is itself perniciously ambiguous. People do not always use the term in the same way, and the differences often appear to go unnoticed.”); William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 597–98 (1992) (suggesting that variation in the degree of clarity required reflects “the Court’s view of what is an important constitutional value,” as well as “the relative importance of different constitutional values”).Show More If “clarity” judgments are mere reflections of partisan attitudes, these critics suggest, adherence to “clear” text doctrines undermines the rule of law.

As this Article explains, the lack of a universal “clarity” standard should be both unsurprising and un-concerning.30 30.See infra Section II.A.Show More To say that a statutory text is “clear” is, in effect, to say that it is clear enough for present purposes. And since purposes vary from case to case—and, in particular, from doctrine to doctrine—so too, one should expect, does the degree of clarity required.31 31.As with “intention,” this Article takes no position on how best to conceive of or identify a legal doctrine’s underlying “purpose(s).” See, e.g., Cass R. Sunstein & Adrian Vermeule, The Morality of Administrative Law, 131 Harv. L. Rev. 1924, 1944–47 (2018) (discussing Chevron in light of administrative law’s “internal morality”).Show More Relatedly, if judges disagree about how clear a text must be in some specific case, that is, at least very often, just a legal dispute about the purposes of the applicable doctrine.

On results-oriented decision-making, this Article argues that what critics have identified is, for the most part, the familiar and entirely general worry that, in close cases, judges can mischaracterize the law without serious reputational harm.32 32.See infra Section II.B.Show More While it is true that a judge can with a straight face (and, perhaps, a clean conscience) insist that a very likely reading of a statute is “clearly” correct (or vice versa), it is equally easy for a judge to declare a reading that is somewhat unlikely to be “more likely than not.” As such, by increasing the probability threshold a reading must satisfy for a court to enforce it from the typical “more likely than not” to the more demanding “clear,” “clarity” doctrines do nothing to increase opportunity for judicial willfulness or motivated reasoning. What they do instead is merely shift the site of plausible argumentation.

This Article has three Parts. Part I distinguishes between two types of “clear” text doctrines, evidence rules and decision rules, identifying concerns specific to each. Part II considers common objections to “clear” text doctrines generally, explaining why those objections are either misguided or generic. Part III shows this Article’s proposed framework in action, assessing various familiar “clear” text doctrines, with some passing the assessment and some not.

  1.  As a matter of positive law, that is. E.g., Universal Health Servs., Inc. v. United States, 579 U.S. 176, 192 (2016) (“[P]olicy arguments cannot supersede the clear statutory text.”); Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) (“As in any case of statutory construction, our analysis begins with ‘the language of the statute.’ And where the statutory language provides a clear answer, it ends there as well.” (quoting Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992))); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95–96 (1820) (“The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction.”). ↑
  2.  Ralf Poscher, Ambiguity and Vagueness in Legal Interpretation, in The Oxford Handbook of Language and Law 128, 128 (Peter M. Tiersma & Lawrence M. Solan eds., 2012) (observing that “[i]n a colloquial sense, both vagueness and ambiguity are employed generically to indicate indeterminacy,” but that “[i]n a more technical sense . . . ambiguity and vagueness are far more specific phenomena”). ↑
  3.  Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). ↑
  4.  Crowell v. Benson, 285 U.S. 22, 62 (1932) (“When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.”). ↑
  5.  NLRB v. SW Gen., Inc., 137 S. Ct. 929, 941–42 (2017); Ratzlaf v. United States, 510 U.S. 135, 147–48 (1994) (“[W]e do not resort to legislative history to cloud a statutory text that is clear.”). ↑
  6.  See William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1082 (2017) (“Interpretation isn’t just a matter of language; it’s also governed by law.”). ↑
  7.  See, e.g., United States v. Am. Trucking Ass’ns, Inc., 310 U.S. 534, 543–44 (1940) (“When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial [inspection].’” (first quoting Bos. Sand & Gravel Co. v. United States, 278 U.S. 41, 48 (1928); and then quoting Helvering v. N.Y. Tr. Co., 292 U.S. 455, 465 (1934))). ↑
  8.  United States v. Fisher, 6 U.S. (2 Cranch) 358, 385–86 (1805). ↑
  9.  Ward Farnsworth, Dustin F. Guzior & Anup Malani, Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation, 2 J. Legal Analysis 257, 257 (2010) (“Determinations of ambiguity are the linchpin of statutory interpretation.”). ↑
  10.  Lawrence M. Solan, Pernicious Ambiguity in Contracts and Statutes, 79 Chi.-Kent L. Rev. 859, 861 (2004) (“Part of the problem is that the law has only two ways to characterize the clarity of a legal text: It is either plain or it is ambiguous. The determination is important.”). ↑
  11.  See William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev. 539, 547 (2017); Adam M. Samaha, If the Text Is Clear—Lexical Ordering in Statutory Interpretation, 94 Notre Dame L. Rev. 155, 177 (2018). ↑
  12.  Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 106 (2007) (Stevens, J., concurring). ↑
  13.  See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2118 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014)). ↑
  14.  Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 62 (1988) (emphasis added). ↑
  15.  (Ha ha.) ↑
  16.  This Article addresses doctrines that assign significance to the “clarity” of statutory text, as opposed to clarity of the law more generally. See Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev. 1497, 1505–07 (2019) (addressing the latter). On the relevance of that distinction, see infra notes 162–67 and accompanying text. ↑
  17.  See infra Section I.A. ↑
  18.  Adam M. Samaha, Starting with the Text—On Sequencing Effects in Statutory Interpretation and Beyond, 8 J. Legal Analysis 439, 440 (2016). ↑
  19.  Here and throughout, this Article uses the phrase “statutory meaning” to refer to the communicative content expressed by statutory text as used—roughly, Congress’s apparent communicative intention (or, alternatively, the conventional meaning of the language as used in the relevant context). See Mitchell N. Berman, The Tragedy of Justice Scalia, 115 Mich. L. Rev. 783, 796–99 (2017) (reviewing Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997)) (distinguishing communicative intention from other forms of intention); see also Richard H. Fallon Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1246–48 (2015) (calling this a statute’s “contextual” meaning). This Article takes no position on how best to conceive of Congress’s communicative intention (e.g., actual or “objectified”) or how best to identify it (e.g., whether to consider legislative history). ↑
  20.  See infra notes 43, 51 and accompanying text. ↑
  21.  See infra Section I.B. ↑
  22.  Here and throughout, this Article uses the term “uncertainty” in a colloquial sense, encompassing both “risk” and “uncertainty” in the technical, decision-theoretic senses of those terms. See Daniel M. Hausman & Michael S. McPherson, Economic Analysis and Moral Philosophy 30–31 (1996) (contrasting situations of “risk,” in which the probabilities of the various possible outcomes are known, and situations of “uncertainty,” in which those probabilities are unknown). ↑
  23.  Cf. City of Arlington v. FCC, 569 U.S. 290, 314–15 (2013) (Roberts, C.J., dissenting) (acknowledging that while it may be hyperbolic to describe Chevron deference as “the very definition of tyranny,” too much deference to administrative agencies may pose serious risks). ↑
  24.  See Abbe R. Gluck, Justice Scalia’s Unfinished Business in Statutory Interpretation: Where Textualism’s Formalism Gave Up, 92 Notre Dame L. Rev. 2053, 2063 (2017) (“It remains unanswered whether a policy canon is still relevant if legislative history alone would clarify statutory language.”); James J. Brudney, Canon Shortfalls and the Virtues of Political Branch Interpretive Assets, 98 Calif. L. Rev. 1199, 1202 (2010) (worrying that the “lack of an intelligible framework for ordering the canons renders them distinctly more susceptible to judicial manipulation than other interpretive resources”). ↑
  25.  See infra Sections III.C–D (discussing interactions between the rules articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and Skidmore v. Swift & Co., 323 U.S. 134 (1944)). ↑
  26.  See, e.g., Buffington v. McDonough, 143 S. Ct. 14, 22 (2022) (Gorsuch, J., dissenting from denial of certiorari) (arguing that “the aggressive reading of Chevron has more or less fallen into desuetude” and “the whole project deserves a tombstone no one can miss”); James Romoser, In an Opinion that Shuns Chevron, The Court Rejects a Medicare Cut for Hospital Drugs, SCOTUSblog (Jun. 15, 2022, 2:24 PM), https://www.scotusblog.com/2022/06/in-an-opinion-that-shuns-chevron-the-court-rejects-a-medicare-cut-for-hospital-drugs/ [https://per‌ma.cc/XLW3-JYHR] (observing that “there might not be five votes to scrap Chevron officially, but the court could tacitly stop deploying it”). But see Nathan Richardson, Deference is Dead (Long Live Chevron), 73 Rutgers U. L. Rev. 441, 516–23 (2021) (arguing that Chevron is unlikely to be formally overturned). ↑
  27.  Transcript of Oral Argument at 71–72, Am. Hosp. Ass’n v. Becerra, 142 S. Ct. 1896 (2022) (No. 20-1114). ↑
  28.  See Meredith A. Holland, Note, The Ambiguous Ambiguity Inquiry: Seeking to Clarify Judicial Determinations of Clarity Versus Ambiguity in Statutory Interpretation, 93 Notre Dame L. Rev. 1371, 1372 (2018) (“[T]here is no established method governing the judge’s threshold determination of ambiguity versus clarity. In fact, there is no consistent definition of ambiguity.”); Frank H. Easterbrook, The Absence of Method in Statutory Interpretation, 84 U. Chi. L. Rev. 81, 90 (2017) (“[T]he Justices do not agree on what ‘ambiguity’ means for purposes of the rule [of lenity].”); Jeffrey A. Pojanowski, Without Deference, 81 Mo. L. Rev. 1075, 1082 (2016) (noting “lurking questions about how hard courts ought to work before deciding whether a statute is clear”); Kavanaugh, supra note 13, at 2138 (“The simple and troubling truth is that no definitive guide exists for determining whether statutory language is clear or ambiguous.”); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 520 (“Here, of course, is the chink in Chevron’s armor—the ambiguity that prevents it from being an absolutely clear guide to future judicial decisions (though still a better one than what it supplanted). How clear is clear?”). ↑
  29.  See Kavanaugh, supra note 13, at 2138–39; Dan T. Coenen, The Rehnquist Court, Structural Due Process, and Semisubstantive Constitutional Review, 75 S. Cal. L. Rev. 1281, 1304 (2002) (“On other occasions, however, the Justices may reveal substantive policy preferences not in formulating rules, but in applying them.”); Easterbrook, supra note 14, at 62 (“[C]ourt[s] may choose when to declare the language of the statute ‘ambiguous.’”); see also Solan, supra note 10, at 859 (“The problem, perhaps ironically, is that the concept of ambiguity is itself perniciously ambiguous. People do not always use the term in the same way, and the differences often appear to go unnoticed.”); William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 597–98 (1992) (suggesting that variation in the degree of clarity required reflects “the Court’s view of what is an important constitutional value,” as well as “the relative importance of different constitutional values”). ↑
  30.  See infra Section II.A. ↑
  31.  As with “intention,” this Article takes no position on how best to conceive of or identify a legal doctrine’s underlying “purpose(s).” See, e.g., Cass R. Sunstein & Adrian Vermeule, The Morality of Administrative Law, 131 Harv. L. Rev. 1924, 1944–47 (2018) (discussing Chevron in light of administrative law’s “internal morality”). ↑

  32.  See infra Section II.B. ↑

©Virginia Law Review Association. All rights reserved.