Author:Holland, Meredith A.


"How clear is clear?" (1) This question has often been asked regarding Step One of the Chevron doctrine, but its relevance is not limited to statutory interpretation in the administrative state. (2) Many interpretive doctrines, including Chevron, (3,) are triggered by a threshold finding of ambiguity. The threshold inquiry by a judge that a statute is either clear or ambiguous is a critical determination that can foreclose or make available a variety of interpretive tools. (4) "But how do courts know when a statute is clear or ambiguous? In other words, how much clarity is sufficient to call a statute clear and end the case there without triggering the ambiguity-dependent canons?" (5)

Though the importance of the ambiguity inquiry in statutory interpretation is well documented, (6) there is no established method governing the judge's threshold determination of ambiguity versus clarity. (7) In fact, there is no consistent definition of ambiguity. (8) As a result, the availability of the interpretive doctrines that purportedly depend on a finding of statutory ambiguity is often uncertain. Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit has recently proposed a new framework for determining when the use of such interpretive tools is appropriate. Motivated by the concern that numerous judicial "decisions leave the bar and the public understandably skeptical that courts are really acting as neutral, impartial umpires in certain statutory interpretation cases," (9) Judge Kavanaugh seeks to reduce or eliminate threshold determinations of clarity versus ambiguity by establishing additional principles to guide the judicial inquiry: he abolishes the ambiguity requirement for particular canons of interpretation, and removes other canons from the practice of statutory interpretation altogether.

This Note will apply Judge Kavanaugh's proposed mechanism to the interpretation of the Title IX prohibition of discrimination on the basis of sex. (10) Part I discusses recent cases decided by the Roberts Court that demonstrate the difficulties with the current jurisprudential approach to the clarity versus ambiguity determination. Part II explores Judge Kavanaugh's recent proposal for reducing threshold findings of ambiguity. Part III considers various interpretive methods and applies Judge Kavanaugh's proposal in the context of Title IX. Finally, this Note concludes that Judge Kavanaugh's approach, while most dramatically transforming the purposivist approach, also has consequences for the textualist inquiry.


    In recent years, the Roberts Court has demonstrated a willingness to consider factors beyond the statutory text in making the threshold determination of whether a text is clear or ambiguous. (11) Consideration of such factors during the initial inquiry disrupts the traditional reservation of some interpretive doctrines for cases of statutory ambiguity only. Richard Re has described this approach as "The New Holy Trinity":

    Instead of adhering to the New Textualism, the Roberts Court has repeatedly and visibly embraced what might be called "The New Holy Trinity." This approach calls for consideration of non-textual factors when determining how much clarity is required for a text to be clear. Aptly enough, the New Holy Trinity is itself triply trinitarian. It revitalizes the jurisprudential legacy of the original Holy Trinity. It is exemplified by three recent Supreme Court cases. And it rests on attention to three considerations: text, pragmatism, and purpose. (12) Using Bond v. United States, (13) Yates v. United States, (14) and King v. Burwell (15) as illustrations, Re suggests that the Roberts Court has renewed the approach found in Church of the Holy Trinity v. United States (16) by making the spirit of the statute relevant to the threshold determination of clarity versus ambiguity. (17) This expands the bounds of the inquiry in an undisciplined manner. This move is further complicated by the Court's expansive use of doctrines of interpretation related to statutory ambiguity, such as the avoidance canon and legislative history. (18) Though the "text continues to play a meaningful role," the initial inquiry is increasingly colored by considerations beyond the words of the statute, as "purposive and pragmatic considerations [become] relevant to the identification of textual clarity or ambiguity." (19)

    This move to include additional considerations at the threshold ambiguity versus clarity determination reveals crucial differences between purposivism and textualism. Textualists argue that such considerations are legitimate only when ambiguity exists, such that "when a statutory text unambiguously points to a specific result... it [is] illegitimate to alter that command to reflect more accurately the statute's apparent background purpose." (20) Textualists, therefore, are more likely to make an initial finding of "clear" than purposivists because their threshold inquiry is more narrow. (21) In contrast, the initial ambiguity findings by the Roberts Court "all depended at least in part on purposive or pragmatic judgments," and the subsequent resolution of that ambiguity depended on additional purposive considerations. (22) While textualism and purposivism operate in similar ways following an initial determination of ambiguity, the interpretive tools allowed by each method in deciding the threshold inquiry vary significantly.

    The judiciary routinely makes the decision of whether a statute is clear or ambiguous, but the underlying question--"how much clarity is required before declaring that a [statutory] provision is clear, as opposed to ambiguous?" (23) --has been left unanswered. "There is no metric for clarity." (24) The line of cases by the Roberts Court relying on the use of the avoidance canon in cases of statutory interpretation is particularly revealing of the undisciplined jurisprudential approach to this threshold inquiry.

    1. Bond v. United States

      Bond v. United States addressed the question of whether the statute implementing the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction reached the conduct of the petitioner, who was prosecuted for spreading chemicals on the car, mailbox, and doorknob of a woman having an affair with the petitioner's husband. (25) The Chemical Weapons Convention Implementation Act "forbids any person knowingly 'to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.'" (26)

      Writing for the Court, Chief Justice Roberts explicitly invoked the doctrine of constitutional avoidance: he considered whether the statute in question covered the petitioner's conduct, and expressed "doubts that a treaty about chemical weapons has anything to do with Bond's conduct." (27) In holding that the statute did not reach the petitioner's conduct, the Court pointed toward "the background principles of construction that our cases have recognized [including]... those grounded in the relationship between the Federal Government and the States under our Constitution." (28) The statutory ambiguity therefore "derive [d] from the improbably broad reach of the key statutory definition given the term--'chemical weapon'--being defined," such that the background principles of federalism actually created ambiguity based on the "improbably broad reach" of the statutory text. (29)

      The threshold determination of ambiguity by the Court had little to do with the text itself, and was instead based on the perceived incompatibility between the statute's possible widespread application and constitutional principles of federalism. "In other words, Bond paralleled Holy Trinity in limiting the relevant statute's scope to its apparent purpose." (30) For purposes of the ambiguity inquiry, the plain meaning of the text was not determinative; rather, other considerations taken alongside the most natural reading implied an ambiguity requiring judicial resolution. Application of the doctrine of constitutional avoidance thus does not require a kind of ambiguity that is particularly unclear, suggesting that a finding of clarity instead requires absolute, or nearly absolute, certainty of meaning. The canon may be invoked despite a plain meaning, where any permissible alternative reading of a text may be adopted if that plain meaning provokes a serious constitutional question. (31)

      Justice Scalia, concurring in the judgment, would have made a threshold determination of clarity and instead decided the case based on the unconstitutional application of the statute to the petitioner. (32) Finding that "[t]he meaning of the Act is plain" and "[a]pplying those provisions to this case is hardly complicated," Justice Scalia traced the statutory language explaining the prohibited conduct and defining the relevant terms and then declared: "End of statutory analysis." (33) Justice Scalia criticized the majority for its "result-driven antitextualism" that "befogs what is evident," and expressed his discomfort with the "judge-empowering principle" declared by the Court. (34) What the majority saw as legitimate to consider in determining whether the statute was ambiguous or clear, Justice Scalia saw as wholly irrelevant to the threshold question; the existence of a plain meaning of the text precludes the use of external considerations to justify a finding of ambiguity or the adoption of a strained alternative reading.

    2. National Federation of Independent Business v. Sebelius

      National Federation of Independent Business v. Sebelius reveals a similarly extreme application of the doctrine of constitutional avoidance that forces an admittedly unnatural reading of a statutory text. (35) In a fractured decision, Chief Justice Roberts admitted that "the statute reads more naturally as a...

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