How Clear is “Clear”?

*Professor of Law, Harvard Law School. Thanks to Charles Barzun, William Baude, Mitchell Berman, Maggie Blackhawk, Richard Fallon, Jonah Gelbach, Roderick Hills, Aziz Huq, Howell Jackson, John Manning, Jennifer Nou, Jeffrey Pojanowski, David Pozen, Frederick Schauer, Asher Steinberg, and Matthew Stephenson for helpful comments and suggestions.Show More

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. ↑