REPLACING THE FLAWED CHEVRON STANDARD.

• Author: Slocum, Brian G.

TABLE OF CONTENTS INTRODUCTION 198 I. JUDICIAL DECIDABILITY AND LEGISLATIVE INTENT 204 II. LINGUISTS AND INDETERMINACY 212 III. THE JUDICIARY AND AMBIGUITY 218 A. Judicial Conflation of Ambiguity and Disambiguation 219 B. Judicial Confusion About Ambiguity 223 C. Evaluating the Judicially Created Ambiguity Standard 226 IV. SOURCES OF INDETERMINACY AS A FRAMEWORK FOR ALLOCATING INTERPRETD/E AUTHORITY 230 A. A New Framework for Judicial Review 231 B. Semantic Indeterminacy Resolution 236 C. Structural Indeterminacy Reconciliation 243 1. INS v. Cardoza-Fonseca 244 2. Mixed Cases of Semantic Indeterminacy Resolution and Structural Indeterminacy Reconciliation 247 D. Literal Meaning Mandatoriness 252 1. The Judicial Decidability of Interpretive Issues Involving Literal Meaning 252 2. Agency Interpretations that Depart from Literal Meaning 256 3. Agency Interpretations that Incorrectly Adhere to Literal Meaning 260 4. Indeterminacy Involving Literal Meaning 262 CONCLUSION 264 INTRODUCTION

Courts have given an outsized role to the concept of ambiguity in statutory interpretation. For example, a finding of statutory ambiguity is necessary before some judges will consult legislative history. (1) As well, a determination of ambiguity often allows a court to apply a canon of statutory construction and select an interpretation on the basis of normative concerns. For instance, if an interpretation raises a serious constitutional question, a determination of ambiguity allows a court to select a different interpretation. (2) In criminal cases, a finding of ambiguity dictates an interpretation in favor of the defendant. (3) Similarly, in administrative law ambiguity serves a crucial role because it often mediates between judicial and agency interpretive authority. Under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., (4) often declared to be one of the most influential administrative law decisions of the twentieth century, if a provision is ambiguous a reasonable agency interpretation will receive deference from the reviewing court. (5) In fact, the D.C. Circuit asserts as a precondition of deference that the agency recognize that the statutory provision is ambiguous. (6) Furthermore, even if an agency's interpretation is confirmed by a reviewing court, the agency may select a different interpretation in the future only if the original court deemed the provision to be ambiguous. (7)

It should not be surprising that the concept of ambiguity has been given such a significant role in interpretive outcomes. The legal realist notion that there is not inevitably one "correct" answer to every interpretive question, but rather multiple plausible resolutions are often available, suggests the need for some mechanism to signal situations involving interpretive choice. (8) Thus, under Chevron, a court may determine that the statute requires or precludes the agency's interpretation, but it may also find that the statute neither requires nor precludes the agency's interpretation. (9) Step One of Chevron requires an independent judicial evaluation, via "traditional tools of statutory construction," of whether "Congress has directly spoken to the precise question at issue." (10) If, instead, "the statute is silent or ambiguous with respect to the specific issue," the reviewing court proceeds to Step Two and determines "whether the agency's answer is based on a permissible construction of the statute." (11) Ambiguity was seen by the Court as a "gap left, implicitly or explicitly, by Congress," which requires the "formulation of policy and the making of rules" that agencies are better equipped to make than courts. (12) The ambiguity concept thus mediates between interpretation (Step One) and policymaking (Step Two) and also shifts the judicial focus from the traditional function of selecting the "best reading" of a statute. (13)

In creating the ambiguity doctrine, the judiciary has transformed a neutral linguistic concept into a uniquely legal concept. Linguists distinguish, via various tests and definitions, between ambiguity and other forms of potential indeterminacy such as vagueness, polysemy, and generality. (14) Furthermore, natural languages are said to be pervasively ambiguous, but an ambiguous expression is not always indeterminate in the sense that the intended meaning is unclear to the comprehender. (15) Linguists thus distinguish between the identification of ambiguity and disambiguation. (16) In contrast to the linguistic conception of ambiguity, though, courts conflate ambiguity identification and disambiguation and also use ambiguity as an umbrella concept that encompasses the various forms of indeterminacy. (17) These actions have created an unpredictable doctrine that does not satisfactorily mediate between judicial interpretive autonomy and deference to agency interpretations.

As various commentators have observed, there is an enormous body of scholarship that has been devoted to Chevron. (18) Very little of the scholarship, however, has focused on the ambiguity concept, and there are no comprehensive, interdisciplinary analyses of it. Recently, though, Justice Brett M. Kavanaugh, while not offering a detailed alternative in administrative cases, wondered whether courts should "avoid attaching serious interpretive consequences to binary ambiguity determinations that are so hard to make in a neutral, impartial way." (19) This Article agrees that the ambiguity concept is a problematic device for allocating interpretive authority in administrative cases. Through an interdisciplinary comparison of the linguistic concept of ambiguity and the judicially created legal doctrine of ambiguity, this Article argues that courts should eliminate the ambiguity concept, thereby transforming the Chevron doctrine. The Article further outlines an alternative linguistic framework that better allocates interpretive authority to judges and policymaking authority to agencies.

Part I explains that part of the uncertainty regarding the division of interpretive authority between courts and agencies is due to Chevron's incoherent treatment of legislative "intent." (20) While interpretive issues are generally judicially decidable on the basis of perceived legislative intent, the Court indicated that provisions that are "ambiguous" may be interpreted by the agency on the basis of policy concerns. (21) The Court's superficial description of legislative intent and the possibility of multiple permissible meanings of statutory provisions is in tension with the historical inclination of judges to choose interpretations that represent the "best readings" of statutes. (22) Furthermore, as Parts II and III explain, the judicial conception of ambiguity is different from how linguists generally use the term. In particular, the judicially created ambiguity concept elides the separate issues of ambiguity identification and disambiguation, as well as the various forms of indeterminacy. When ambiguity identification and disambiguation are conflated, ambiguity determination depends on an assessment of the available evidence, but the determination is a conclusion that is not based on any linguistic tests or useful definitions. (23)

The ambiguity concept does not add structure to the interpretive process in a way that would make it more objective and less ideological than interpretation outside of the administrative context. (24) Considering the judicial conflation of ambiguity identification and disambiguation, there is no obvious point in the interpretive process, prior to its completion, where a reviewing court can stop the process and declare the provision to be ambiguous. (25) There is therefore no objective standard to determine whether the determination is correct or incorrect (unlike linguists' tests, which are theoretically based and can at least be verified by others). (26) As a result, no stable standard exists for mediating between contextual disambiguation that tracks legislative intentions and a determination that the provision is ambiguous and agency discretion is therefore legislatively intended.

The Chevron doctrine has been the subject of renewed criticism and is said to be "entering a period of uncertainty, after long seeming to enjoy consensus support on the Court." (27) Despite these criticisms, some form of deference is likely to continue. (28) Any critique of Chevron that focuses primarily on linguistic issues (as this article does) is necessarily incomplete, though, due to the multiple justifications for deference and the likelihood of doctrinal constraints on any deference doctrine. Consider that the Chevron decision itself emphasized the existence of congressional intent that agencies resolve statutory uncertainties as well as the greater expertise and political accountability of agencies compared to courts. (29) Other theories for Chevron include the views that agencies are superior to courts in ascertaining congressional intent and that deference is a judicially self-imposed constraint to assuage concerns about courts' counter majoritarian role under the Constitution. (30) In addition, various considerations have been thought by the Court to be relevant to deference, including the formality of the agency procedures used when promulgating the interpretation. (31)

Notwithstanding the incompleteness of any linguistic critique of deference, as well as the ineffectiveness of the ambiguity concept, Part IV argues that it is intuitive that indeterminacy should play a role in the allocation of interpretive authority. In the absence of indeterminacy congressional intent must be implemented in most cases and, thus, there is no basis for deferring to an agency's interpretation. (32) Conversely, when indeterminacy does exist there may be no discernable congressional intent to implement, and though the interpretive issue may still be decidable by a court (as interpretive issues generally are), even before Chevron it was...