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BOOK REVIEWS

FIXING STATUTORY INTERPRETATION

UDGING

TATUTES

. By Robert A. Katzmann. New York, N.Y.:

Oxford University Press. 2014. Pp. xi, 171. $24.95.

Reviewed by Brett M. Kavanaugh

∗

Statutory interpretation has improved dramatically over the last

generation, thanks to the extraordinary influence of Justice Scalia.

Statutory text matters much more than it once did. If the text is suffi-

ciently clear, the text usually controls.

The text of the law is the law.

As Justice Kagan recently stated, “we’re all textualists now.”

By em-

phasizing the centrality of the words of the statute, Justice Scalia

brought about a massive and enduring change in American law.

But more work remains. As Justice Scalia’s separate opinions in

recent years suggest, certain aspects of statutory interpretation are still

troubling.

In my view, one primary problem stands out. Several sub-

stantive principles of interpretation — such as constitutional avoid-

ance, use of legislative history, and Chevron — depend on an initial de-

termination of whether a text is clear or ambiguous. But judges often

cannot make that initial clarity versus ambiguity decision in a settled,

principled, or evenhanded way.

The upshot is that judges sometimes decide (or appear to decide)

high-profile and important statutory cases not by using settled, agreed-

upon rules of the road, but instead by selectively picking from among

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

∗

Judge, United States Court of Appeals for the District of Columbia Circuit.

See e.g., Justice Elena Kagan, The Scalia Lecture: A Dialogue with Justice Kagan on the

Reading of Statutes at 8:09 (Nov. 17, 2015), h t t p : / / t o d a y . l a w . h a r v a r d . e d u / i n - s c a l i a - l e c t u r e - k a g a n

- d i s c u s s e s - s t a t u t o r y - i n t e r p r e t a t i o n [h t t p : / / p e r m a . c c / 3 B C F - F E F R] (explaining that “the primary

reason” Justice Scalia will “go down as one of the most important, most historic figures in the

Court” is that he “taught everybody how to do statutory interpretation differently”). For an early

description of the “new textualism,” see William N. Eskridge, Jr., The New Textualism, 37 UCLA

L. R

. 621 (1990).

See Kagan, supra note 1, at 8:28 (“I think we’re all textualists now in a way that just was

not remotely true when Justice Scalia joined the bench.”).

Id. For an excellent discussion of the distinction between textualists and purposivists, see

John F. Manning, What Divides Textualists from Purposivists?, 106 C

OLUM

. L. R

. 70 (2006).

The Court often still divides in statutory interpretation cases. See King v. Burwell, 135 S.

Ct. 2480, 2496 (2015) (Scalia, J., dissenting); Bond v. United States, 134 S. Ct. 2077, 2094 (2014)

(Scalia, J., concurring in the judgment); EPA v. EME Homer City Generation, L.P., 134 S. Ct.

1584, 1610 (2014) (Scalia, J., dissenting); see also Yates v. United States, 135 S. Ct. 1074, 1090

(2015) (Kagan, J., dissenting).

2016] FIXING STATUTORY INTERPRETATION 2119

a wealth of canons of construction.

Those decisions leave the bar and

the public understandably skeptical that courts are really acting as

neutral, impartial umpires in certain statutory interpretation cases.

The need for better rules of the road is underscored by a recent

book written by Robert Katzmann, the very distinguished Chief Judge

of the Second Circuit. I know Chief Judge Katzmann from our service

together on the Judicial Branch Committee of the Judicial Conference,

where he served for many years as Chairman by appointment of the

Chief Justice. Chief Judge Katzmann is one of America’s finest judges

and a true role model for me and many others, both in how he ap-

proaches his job and in how he seeks to improve the system of justice.

His new book Judging Statutes is a pleasure to read. It is succinct

and educational. Chief Judge Katzmann’s goal is to show that various

tools of statutory interpretation, especially legislative history, can en-

hance judges’ understanding of statutory meaning and allow them “to

be faithful to the work of the people’s representatives memorialized in

statutory language” (p. 105).

As would be natural with any two judges on a topic of this kind, I

agree with some parts of Chief Judge Katzmann’s book and not with

others. But even where I disagree, I have learned a great deal.

Every judge, lawyer, law professor, and law student who interprets

statutes — which is to say every judge, lawyer, law professor, and law

student — should read this book carefully. To paraphrase Justice

Frankfurter: read the book, read the book, read the book.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

This criticism has been prevalent at least since Professor Karl Llewellyn’s famous discussion

of “dueling canons” in Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the

Rules or Canons About How Statutes Are to Be Construed, 3 V

AND

. L. R

. 395 (1950). But my

proposed solutions are largely new, as far as I know.

See, e.g., Richard A. Posner, Response, Comment on Professor Gluck’s “Imperfect Statutes,

Imperfect Courts,” 129 H

ARV

. L. R

. F. 11, 11 (2015) (“I daresay that some judges (and Justices)

some of the time actually use these [statutory interpretation] approaches and these tools (other

than as window dressing), and that more think they are using them but aren’t really. But I think

that most of the time statutory interpretation is better described as creation or completion than as

interpretation and that politics and consequences are the major drivers of the outcome.”). In

many constitutional cases, much of the public and bar has long since moved from skepticism to

disbelief that judges act as neutral, impartial umpires. I do not agree with that view, but I under-

stand it. That, however, is a topic for another day. Today is about statutory interpretation, and

about how judges can counter that skepticism.

Cf. H

ENRY

J. F

RIENDLY

, B

ENCHMARKS

202 (1967) (recounting how Justice Frankfurter’s

three rules of statutory interpretation were to “(1) [r]ead the statute; (2) read the statute; (3) read

the statute!”). And while you are at it, read the recent book by Justice Scalia and Professor Bryan

Garner as well. See A

NTONIN

CALIA

& B

RYAN

A. G

ARNER

, R

EADING

(2012). And

read the prodigious academic work of Professors John Manning, Bill Eskridge, and Abbe Gluck,

among many others. Then you will have a multifaceted picture of some of the problems and dif-

ficulties of statutory interpretation today, and benefit from the thoughts of some of our most bril-

liant analysts and theorists of statutory interpretation.

2120 HARVARD LAW REVIEW [Vol. 129:2118

Judging Statutes has caused me to think even more deeply about

statutory interpretation and about what judges should be trying to

achieve when we confront statutory cases. For me, one overarching

goal is to make judging a neutral, impartial process in all cases — not

just statutory interpretation cases. Like cases should be treated alike

by judges of all ideological and philosophical stripes, regardless of the

subject matter and regardless of the identity of the parties to the case.

To be sure, some may conceive of judging more as a partisan or

policymaking exercise in which judges should or necessarily must

bring their policy and philosophical predilections to bear on the text at

hand.

I disagree with that vision of the federal judge in our constitutional

system. The American rule of law, as I see it, depends on neutral, im-

partial judges who say what the law is, not what the law should be.

Judges are umpires, or at least should always strive to be umpires. In

a perfect world, at least as I envision it, the outcomes of legal disputes

would not often vary based solely on the backgrounds, political affilia-

tions, or policy views of judges.

In my view, this goal is not merely personal preference but a consti-

tutional mandate in a separation of powers system. Article I assigns

Congress, along with the President, the power to make laws.

Article

III grants the courts the “judicial Power”

to interpret those laws in

individual “Cases” and “Controversies.”

When courts apply doc-

trines that allow them to rewrite the laws (in effect), they are encroach-

ing on the legislature’s Article I power.

But the vision of the judge as umpire raises a natural question:

how can we move toward that ideal in our judicial system, where

judges come from many different backgrounds and may have a variety

of strong ideological, political, and policy predispositions?

To be candid, it is probably not possible in all cases, depending on

the nature of the legal inquiry. After all, on occasion the relevant con-

stitutional or statutory provision may actually require the judge to

consider policy and perform a common law–like function.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

EDERALIST

. 78, at 464 (Alexander Hamilton) (Clinton Rossiter ed., 2003) (“The

judiciary . . . may truly be said to have neither FORCE nor WILL but merely judgment . . . .”).

U.S. C

ONST

. art. I, § 7.

Id. art. III, § 1.

Id. art. III, § 2.

To take one example, we should not expect all judges to agree on whether a particular kind

of search is “reasonable” under the Fourth Amendment. U.S. C

ONST

. amend. IV; see, e.g., Riley

v. California, 134 S. Ct. 2473 (2014). Or what evidentiary privileges should be recognized “in the

light of reason and experience.” F

. R. E

VID

. 501; see, e.g., Swidler & Berlin v. United States,

524 U.S. 399 (1998). Or whether attorney’s fees are in “the interest of justice.” 15 U.S.C.

§ 2072(a) (2012). Or what constitutes a “restraint of trade.” 15 U.S.C. § 1 (2012). Cases such as

those, where the judicial inquiry requires determination of what is reasonable or appropriate, are

less a matter of pure interpretation than of common law–like judging.

2016] FIXING STATUTORY INTERPRETATION 2121

But in most statutory cases, the issue is one of interpretation.

assist the interpretive process, judges over time have devised many

semantic and substantive canons of construction — what we might re-

fer to collectively as the interpretive rules of the road. To make judges

more neutral and impartial in statutory interpretation cases, we should

carefully examine the interpretive rules of the road and try to settle as

many of them in advance as we can. Doing so would make the rules

more predictable in application. In other words, if we could achieve

more agreement ahead of time on the rules of the road, there would be

many fewer disputed calls in actual cases. That in turn would be

enormously beneficial to the neutral and impartial rule of law, and to

the ideal and reality of a principled, nonpartisan judiciary.

With that objective in mind, I will advance one overarching argu-

ment in this Book Review. A number of canons of statutory interpre-

tation depend on an initial evaluation of whether the statutory text is

clear or ambiguous. But because it is so difficult to make those clarity

versus ambiguity determinations in a coherent, evenhanded way,

courts should reduce the number of canons of construction that depend

on an initial finding of ambiguity. Instead, courts should seek the best

reading of the statute by interpreting the words of the statute, taking

account of the context of the whole statute, and applying the agreed-

upon semantic canons. Once they have discerned the best reading of

the text in that way, they can depart from that baseline if required to

do so by any relevant substantive canons — for example, the absurdity

doctrine.

To be clear, I fully appreciate that disputed calls will always arise

in statutory interpretation. Figuring out the best reading of the statute

is not always an easy task. I am not a modern-day Yogi Berra, who

once purportedly said that there would be no more close calls if we

just moved first base.

But the current situation in statutory interpretation, as I see it, is

more akin to a situation where umpires can, at least on some pitches,

largely define their own strike zones. My solution is to define the

strike zone in advance much more precisely so that each umpire is op-

erating within the same guidelines. If we do that, we will need to

worry less about who the umpire is when the next pitch is thrown.

That’s just too hard, some might argue. Statutory interpretation is

an inherently complex process, they say. It’s all politics anyway, others

contend. I have heard the excuses. I’m not buying it. In my view, it

is a mistake to think that the current mess in statutory interpretation is

somehow the natural and unalterable order of things. Put simply, we

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

See A

NTONIN

CALIA

, A M

ATTER

NTERPRETATION

13–14 (Amy Gutmann ed.,

1997).

2122 HARVARD LAW REVIEW [Vol. 129:2118

can do better in the realm of statutory interpretation. And for the sake

of the neutral and impartial rule of law, we must do better.

ATZMANN

HESIS

AND

OME

ESPONSES

In Judging Statutes, Chief Judge Katzmann’s basic themes are

straightforward: courts should understand Congress better, should in-

terpret statutory text in light of Congress’s purpose in enacting the

particular statute, and, in particular, should rely on committee re-

ports and other legislative history to try to divine Congress’s purpose

(pp. 9–10).

A. Understanding Congress Better and the Role of Committee Reports

Chief Judge Katzmann stands on very firm ground when he sug-

gests that “[h]aving a basic understanding of legislative lawmaking can

only better prepare judges to undertake their interpretive responsibili-

ties” (p. 22). For judges to unpack a statute in a particular case, it is

important to understand how the law came together. Oftentimes, for

example, courts will confront a statute that has been amended multiple

times over multiple years. Or a particular phrase in a statute may

have been added in conference. As I see it, by understanding the legis-

lative process, judges will better appreciate that legislation is a com-

promise with many competing purposes and cross-currents, that there

will be redundancies, and that Congress may not always be consistent

in its choice of terminology, among other things.

Chief Judge Katzmann describes the lawmaking process in some

detail (pp. 11–22). He rightly explains that the central problem con-

fronting Members of Congress is too much “pressure — such as the

pressures of the permanent campaign for reelection, raising funds, bal-

ancing work in Washington and time in the district, balancing commit-

tee and floor work in an environment of increasing polarization, and

balancing work and family responsibilities” (p. 17).

That pressure is

“now more intense than in the past” (p. 17). Those demands “reduce

opportunities for reflection and deliberation” (p. 18). As Chief Judge

Katzmann points out, Members cannot possibly read every word of

every bill, much less understand all the effects of each bill (p. 18).

To mitigate this problem, Members rely heavily on congressional

committees (p. 19). Those committees are staffed by numerous aides

who assist the Members in their work. Legislators and their staffs ed-

ucate themselves about bills by reading the materials produced by the

committees that drafted and approved the proposed legislation (p. 19).

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Internal footnote omitted.

2016] FIXING STATUTORY INTERPRETATION 2123

Chief Judge Katzmann’s point here is that Congress usually oper-

ates on a kind of internal delegation system. In essence, the job of

drafting legislation is often farmed out to subgroups of Congress.

Those subgroups draft the precise language. The Members who vote

on the bill do not read the end product, but instead often rely on the

committee reports, or on their staffs who in turn rely on the committee

reports (pp. 19–20).

Chief Judge Katzmann’s larger interpretive point is that judges

who understand this process better should and will recognize the im-

portance of committee reports in the actual legislative process (p. 22).

Chief Judge Katzmann refers often to the concept of “authoritative”

legislative history (pp. 29, 38, 54, 75, 85, 102–03), by which he primari-

ly means the committee reports that form the basis on which other

Members determine how to vote on a bill. Although Chief Judge

Katzmann acknowledges that “[l]egislative history is not the law” (p.

38), he says that committee reports are often “authoritative” guides to

understanding the meaning of the law. If Members vote based on

what is in the committee reports rather than what is in the text, he

wonders, aren’t judges required to pay attention to the committee re-

ports as well (p. 22)?

Chief Judge Katzmann asks a good and appropriate question. Of

course, a good and appropriate response, as Professor John Manning

has persuasively explained, is that the committee report is not an au-

thoritative guide to determining the meaning of a law under our

Constitution.

Instead, the statute’s text as passed by Congress and

signed by the President (or passed by two-thirds of both Houses over

the President’s veto) is the law. Congress could easily include the rele-

vant committee report (or key portions thereof) as a background sec-

tion of the statute on which Congress is voting. In other words, if

there is some key point in the committee report, there is an easy solu-

tion to make sure it is “authoritative”: vote on it when voting on the

statute. As Justice Kagan recently said of committee reports: “It’s not

what Congress passed, right? If they want to pass a committee report,

they can go pass a committee report. They can incorporate a commit-

tee report into the legislation if they want to. You know, they didn’t

do that.”

Chief Judge Katzmann never addresses that possibility,

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

In my view, Congress may not constitutionally disclaim responsibility for the precise statu-

tory text. Even if subgroups of Congress draft the language, the final language is the law. That is

true even when Members of Congress vote on the law without reading the law (as they often do).

See John F. Manning, Why Does Congress Vote on Some Texts but Not Others?, 51 T

ULSA

L. R

. 559 (2016) (reviewing R

OBERT

ATZMANN

, J

UDGING

TATUTES

(2014)).

Kagan, supra note 1, at 32:10.

2124 HARVARD LAW REVIEW [Vol. 129:2118

which, to my mind, leaves something of a hole in his concept of “au-

thoritative” legislative history.

Moreover, as many courts have noted over the years, committee re-

ports are not necessarily reliable guides to the meaning of the text.

That is especially true when the statutory text represents a compro-

mise among competing interests, as it so often does. Committee re-

ports often may represent an effort by one side to shape future inter-

pretation of the text by judges and executive branch officials, rather

than simply a neutral and dispassionate guide to the intended meaning

of the terms in the statutory text.

There are at least two possible explanations for why Congress does

not vote on committee reports. First, Congress might not vote on

committee reports (or even on key parts of committee reports) because

Congress thinks a vote is unnecessary.

But if courts tell Congress

that voting on those reports is necessary, or at least necessary if

Congress wants those reports to be considered authoritative by courts,

then Congress could readily decide whether and when to vote on those

reports.

Easy enough. That approach would satisfy the camps of

both Justice Scalia and Chief Judge Katzmann, a win-win if ever there

was one. Alternatively, Congress may not vote on the reports because

it might not approve the reports if they came up for a vote.

course, that possibility just proves the point for opponents of using

committee reports in the interpretation of statutes.

It is hard to con-

sider something “authoritative” if it was not voted on and may actually

have been voted down if it had been voted on.

The bottom line is this: if Congress could — but chooses not to —

include certain committee reports (or important parts thereof) in the

statute, on what legal basis can a court treat the unvoted-on legislative

history as “authoritative”?

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Later in the book, Chief Judge Katzmann sidesteps this issue: “When Congress passes a law,

it can be said to incorporate the materials that it, or at least the law’s principal sponsors (and oth-

ers who worked to secure enactment), deem useful in interpreting the law” (p. 48). But the pas-

sive voice reveals the problem with this assertion. It “can be said” by whom? Congress has not

said so, even though it easily could.

See, e.g., Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568–69 (2005);

Blanchard v. Bergeron, 489 U.S. 87, 98–99 (1989) (Scalia, J., concurring in part and concurring in

the judgment); see also Eskridge, supra note 1, at 684–90; Adrian Vermeule, Legislative History

and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 S

TAN

. L.

. 1833 (1998).

See Manning, supra note 16, at 566–67.

Indeed, as Manning points out, this potential explanation seems even odder given the rise of

textualism in the last three decades. He rightly emphasizes “Congress’s continued failure to put

legislative history to a vote three decades into a textualist campaign that has put legislative histo-

ry on uncertain footing in the Supreme Court.” Id. at 562.

See id. at 562, 567–68.

See id. at 568–70.

Id. at 568–69.

2016] FIXING STATUTORY INTERPRETATION 2125

B. The President

In his description of the legislative process, Chief Judge Katzmann

does not talk much about a critical player: the President.

The

President and his or her staff play an essential role in the legislative

process. Indeed, the President is the “Legislator in Chief” in some

ways — given that no legislation can pass without the President’s ap-

proval, unless two-thirds of both Houses override a veto.

Moreover,

the President often jumpstarts the legislative process on a particular

subject through speeches or meetings with congressional leaders. The

Framers envisioned the President playing such a role when they re-

quired that “[h]e shall from time to time give to the Congress Infor-

mation of the State of the Union, and recommend to their Consider-

ation such Measures as he shall judge necessary and expedient.”

newly elected President will seek to shape the legislative agenda to ad-

vance his or her campaign proposals.

And Presidents use the State

of the Union address — and the bully pulpit more generally — to push

for legislation to address particular problems.

Lawyers, academics, and judges too often treat legislation as a one-

body process (“the Congress”) or a two-body process (“the House and

Senate”). But formally and functionally, it is actually a three-body

process: the House, the Senate, and the President. Any theory of statu-

tory interpretation that seeks to account for the realities of the legisla-

tive process — as Chief Judge Katzmann’s does — must likewise take

full account of the realities of the President’s role in the legislative

process.

Given that the President and the White House staff are not neces-

sarily aware of the committee reports, and given that Members of

Congress in one House may not be aware of reports from the other

House, I think it is difficult to call those reports “authoritative” in any

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

The relevant chapter is revealingly titled “Congress and the Lawmaking Process” (p. 11).

See U.S. C

ONST

. art. I, § 7, cl. 2.

Id. art. II, § 3.

For example, the No Child Left Behind Act and the Patient Protection and Affordable Care

Act each addressed a central priority of Presidents George W. Bush and Barack Obama, respec-

tively — and each was passed in the first fifteen months of their respective administrations.

It is also true, as those of us who have been involved in the legislative process could explain,

that interest groups and other affected parties play a role in the legislative process by, for exam-

ple, originating language and signing off on language. Will the Chamber of Commerce go for

this? What do the unions think? Is the NRA okay with this? What does the Brady Campaign

say? Is NRDC good with this version? Has Pharma blessed this? Will Heritage score this bill?

What does CAP say? To live in the world of legislative process — at either end of Pennsylvania

Avenue — is to live with these questions. This action, which is absolutely critical to the reality of

the legislative process, is rarely reflected in committee reports. Or sometimes it may be reflected

in a skewed way, as when a lobbyist manages to land in a committee report some language that

the lobbyist could not get into the actual statutory text. See, e.g., Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. 546, 568 (2005).

2126 HARVARD LAW REVIEW [Vol. 129:2118

formal or functional sense. Chief Judge Katzmann seems to realize

this problem because he suggests forwarding committee reports to the

President before the President signs the bill (p. 102). But is a President

supposed to veto a bill because of some comment made by one com-

mittee of one House? And if the President does not exercise the veto

power, does that make a comment by one committee of one House an

authoritative guide to the statutory text?

C. How Committee Reports Signal Agencies

After examining the lawmaking process, Chief Judge Katzmann

describes how executive and independent agencies interpret enacted

statutes (pp. 23–28). Agencies must interpret statutes, both in order to

issue rules and in order to determine whether to bring an enforcement

action against someone who may have violated the law.

In this realm, as Chief Judge Katzmann points out, committee re-

ports can be particularly important signals to the agencies. Members

of Congress have many tools at their disposal to put pressure on agen-

cy officials. Those tools include appropriations, oversight hearings,

confirmation hearings, and even phone calls and letters from Members

to agency officials (pp. 24–25). The committee reports likewise serve

as a signal to agency officials about how to exercise their rulemaking

and enforcement discretion (p. 26).

Chief Judge Katzmann’s observation here is extremely important

and too often overlooked. Committee reports may and do legitimately

influence agency conduct in exercising the discretion granted to them

by the statutory text. Indeed, to the extent a statute grants discretion

to an agency — and Members of Congress want to influence how that

discretion is exercised (as they are permitted to do) — committee re-

ports are actually a far more transparent tool than some of the alterna-

tives, such as phone calls to agency officials threatening to cut appro-

priations if discretion is not exercised in a certain way. Suppose, for

example, that a statute grants an agency that oversees mergers the dis-

cretion to adopt rules that ensure fair competition. A committee report

that identifies the level of permissible concentration in an industry is

more transparent than a later phone call from the committee chair to

the agency head in which the committee chair says a particular merger

is problematic. (Of course, an agency should feel free legally, albeit

perhaps not politically, to ignore both kinds of signals.) Anyone who

says courts should pay less attention to committee reports must none-

theless acknowledge that committee reports may serve an important

and legitimate purpose for the executive and independent agencies that

must implement the statutes and exercise any discretion granted them

by statute.

That reality, no doubt, is one reason why Congress keeps producing

committee reports even as courts have relied less and less on legislative

2016] FIXING STATUTORY INTERPRETATION 2127

history over time. Agencies rely on those reports in the same way they

might rely on other informal signals from Congress. So Congress has

an appropriate reason and an incentive to keep producing the reports.

D. Courts and Legislative History

After analyzing agencies’ reliance on legislative history, Chief Judge

Katzmann turns to judicial interpretation of statutes (pp. 29–54). This

chapter is the meat of the book. Chief Judge Katzmann’s overriding

point is that courts should use legislative history — in particular,

committee reports — to interpret statutes (p. 31).

Chief Judge Katzmann correctly acknowledges that “[l]egislative

history is not the law” (p. 38). But he adds that legislative history “can

help us understand what the law means” (p. 38).

To understand Chief Judge Katzmann’s point, it is important at the

outset to appreciate that there are two primary uses of legislative

history:

(1) Use legislative history to resolve ambiguities in the text.

(2) Use legislative history to override the clear text when following

the text would contradict Congress’s apparent intent. This propo-

sition is also known as the Holy Trinity

principle.

Chief Judge Katzmann quite clearly advocates for the first use of

legislative history, saying that judges should use legislative history

whenever they are faced with an ambiguous text. Many judges nomi-

nally agree with that proposition, although Justice Scalia did not. But

there are real debates over how quickly one should find ambiguity —

much more on that point later — and whether legislative history ever

really changes the outcome the judge otherwise would have reached.

The second use of legislative history is far more controversial. It

reflects a kind of broad “mistake canon” associated with the old 1892

Holy Trinity case. In Holy Trinity, as Chief Judge Katzmann explains

(p. 32), the Supreme Court departed from the clear text of an immigra-

tion statute based on the legislative history and “spirit” of the law.

Importantly, Holy Trinity used legislative history not simply to deter-

mine the meaning of an ambiguous text, but instead to override the

meaning of otherwise clear text on the theory that the text must reflect

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Church of the Holy Trinity v. United States, 143 U.S. 457 (1892).

See Kagan, supra note 1, at 25:06 (describing most treatments of legislative history at the

Supreme Court as “icing on a cake already frosted”); see also Yates v. United States, 135 S. Ct.

1074, 1093 (2015) (Kagan, J., dissenting) (“And legislative history, for those who care about it, puts

extra icing on a cake already frosted.”).

See Holy Trinity, 143 U.S. at 461.

2128 HARVARD LAW REVIEW [Vol. 129:2118

a mistake.

The basic idea is that the Court did not think Congress

meant what it said — that the text was in part a mistake.

Even though Holy Trinity has never expressly been overruled, its

mode of using legislative history to override clear text is rarely used in

modern Supreme Court decisions.

The modern rule, as the Supreme

Court has repeated often, is that clear text controls even in the face of

contrary legislative history.

Does Chief Judge Katzmann agree? It’s not entirely clear. Chief

Judge Katzmann says that “[w]hen a statute is unambiguous, resorting

to legislative history is generally not necessary; in that circumstance,

the inquiry ordinarily ends” (p. 48).

But the word “generally” may be

an important caveat. And when Chief Judge Katzmann describes sev-

eral cases he’s decided, he seems to indicate that legislative history

may be used to override the meaning of clear statutory language, and

not just to interpret ambiguous statutory language.

And that’s Holy

Trinity in a nutshell.

If he were advancing a return to Holy Trinity, then Chief Judge

Katzmann would be mounting a critique of the heart of textualism. As

the Supreme Court now says, when the text is clear, judicial inquiry is

at an end. In what some have described as “the bad old days” before

Justice Scalia,

that was not the rule.

But perhaps I am reading too much into what Chief Judge

Katzmann says. He may simply be making the narrower (and less

controversial) claim that legislative history should be used to resolve

ambiguities.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

See id. at 458–59, 463–65.

See, e.g., Allapattah, 545 U.S. at 568 (“As we have repeatedly held, the authoritative state-

ment is the statutory text, not the legislative history or any other extrinsic material. Extrinsic ma-

terials have a role in statutory interpretation only to the extent they shed a reliable light on the

enacting Legislature’s understanding of otherwise ambiguous terms.”); 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))).

For an argument that the Roberts Court is resurrecting Holy Trinity, see Richard M. Re, The New

Holy Trinity, 18 G

REEN

2d 407 (2015).

Emphasis has been added.

See infra section I.E, pp. 2129–33.

Paul Clement, Opinion, Arguing Before Justice Scalia, N.Y. T

IMES

(Feb. 17, 2016), h t t p : / /

w w w . n y t i m e s . c o m / 2 0 1 6 / 0 2 / 1 7 / o p i n i o n / a r g u i n g - b e f o r e - j u s t i c e - s c a l i a . h t m l (“A few years back, d ur-

ing oral argument, Justice Antonin Scalia asked me when I thought ‘the bad old days’ — when

the Supreme Court routinely looked beyond the text of statutes — had ended? I said, ‘The bad

old days ended when you got on the court, Mr. Justice Scalia.’”); see also Transcript of Oral Ar-

gument at 46, CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008) (No. 06-1431).

Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) (“We begin

with the familiar canon of statutory construction that the starting point for interpreting a statute

is the language of the statute itself. Absent a clearly expressed legislative intention to the con-

trary, that language must ordinarily be regarded as conclusive.” (emphasis added)).

2016] FIXING STATUTORY INTERPRETATION 2129

In any event, after finishing with legislative history, Chief Judge

Katzmann turns to the canons of statutory construction (pp. 50–54).

Chief Judge Katzmann says that many canons may “fail to reflect the

reality of the legislative process” (p. 52). I agree. But his solution is

not to try to fix the canons (as I would do

). Instead, Chief Judge

Katzmann offers canon failure as another reason to use legislative his-

tory. But I am not sure that his proposed solution follows from the

problem. If the problem is the canons, then we should revise the

canons.

E. Case Examples

After setting out his doctrinal framework, Chief Judge Katzmann

walks us through a few cases that he has decided on the Second

Circuit, and that the Supreme Court subsequently reviewed (pp. 55–

91). This chapter is an especially illuminating part of Judging

Statutes. I appreciate Chief Judge Katzmann’s willingness to eluci-

date his own thinking in such a candid and educational way.

Chief Judge Katzmann begins the section with an important

statement:

Most judges, in my experience, are neither wholly textualists nor wholly

purposivists (that is, seekers of purpose). Purposivists tend not to go be-

yond the words of an unambiguous statute; at times, textualists look to

purposes and extratextual sources such as dictionaries. What sets the two

apart is a difference in emphasis and the tools they employ to find

meaning. (p. 55)

This passage is important, and I have two reactions to it. First, in

my view, another critical difference between textualists and

purposivists is that, for a variety of reasons, textualists tend to find

language to be clear rather than ambiguous more readily than

purposivists do. One need look no further than the statements of the

archetypal textualist, Justice Scalia, for confirmation of this point.

As a result, textualists tend to resort less often to ambiguity-dependent

canons and tools of construction such as constitutional avoidance, leg-

islative history, and Chevron. Second, textualists look to legislative

history only infrequently, and even then only to resolve cases of true

statutory ambiguity. They never use legislative history to depart from

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

See infra Part III, pp. 2159–62.

See, e.g., Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989

UKE

L.J. 511, 521 (“In my experience, there is a fairly close correlation between the degree to

which a person is (for want of a better word) a ‘strict constructionist’ of statutes, and the degree

to which that person favors Chevron and is willing to give it broad scope. The reason is obvious.

One who finds more often (as I do) that the meaning of a statute is apparent from its text and

from its relationship with other laws, thereby finds less often that the triggering requirement for

Chevron deference exists.”); see also Kagan, supra note 1, at 56:54 (noting differences between her

and Justice Scalia over “the quickness with which we find ambiguity”).

2130 HARVARD LAW REVIEW [Vol. 129:2118

otherwise clear statutory text (the Holy Trinity approach

), whereas

some purposivists sometimes seem to do so, at least subtly.

Chief Judge Katzmann then proceeds through three cases as exam-

ples of his jurisprudence and theory.

In Raila v. United States,

the plaintiff slipped on a package that

a postal worker had left at her door.

The plaintiff filed suit against

the United States under the Federal Tort Claims Act.

But that stat-

ute exempted “[a]ny claim arising out of the . . . negligent transmission

of letters or postal matter.”

Writing for his Second Circuit panel, Chief Judge Katzmann ex-

plained that the statute was ambiguous as applied to the facts.

Rely-

ing primarily on its assessment of the broad statutory purposes — in-

cluding the purpose of allowing plaintiffs to recover when injured by

federal officials except in certain circumstances — the court held that

the plaintiff’s claim was not exempt and did not involve the transmis-

sion of letters.

By a 7-1 vote, with Justice Kennedy writing, the Supreme Court

agreed with the Second Circuit’s conclusion, but the Supreme Court

relied on more textualist and canon-based reasoning.

The Supreme

Court reasoned that the phrase “negligent transmission of letters or

postal matter” in its ordinary meaning refers to mail that fails to ar-

rive, arrives late, arrives at the wrong address, or is damaged.

As I see it, this case, while interesting, does not show us too much.

The Supreme Court did not need to (and did not) go much beyond

what was the best reading of the statutory text.

And given that neg-

ligent transmission of the mail is not usually understood as tripping

someone with the mail, that was the beginning and end of it for the

Supreme Court.

The second case, United States v. Gayle,

concerned a provision of

the Gun Control Act of 1968

that prohibited the possession of fire-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

See Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892) (“It is a familiar

rule, that a thing may be within the letter of the statute and yet not within the statute, because

not within its spirit, nor within the intention of its makers.”).

355 F.3d 118 (2d Cir. 2004).

Id. at 119.

28 U.S.C. §§ 1346(b), 2671–80 (2012).

Id. § 2680(b).

Raila, 355 F. 3d at 120 (“The meaning of the words ‘negligent transmission’ is not self-evident.”).

Id. at 121–23.

See Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006).

See id. at 486–87, 489.

The Supreme Court also applied the noscitur a sociis semantic canon. See id. at 486–87. It

does not appear that the canon did much independent work in that case, however.

342 F.3d 89 (2d Cir. 2003).

Pub. L. No. 90-618, 82 Stat. 1213 (codified as amended in scattered sections of 18 and 26

U.S.C.).

2016] FIXING STATUTORY INTERPRETATION 2131

arms by anyone who had been “convicted in any court of, a crime pun-

ishable by imprisonment for a term exceeding one year.”

The con-

troversy there involved people who had been convicted in a foreign

court rather than an American court.

Were they covered by this

statute?

The Second Circuit concluded that “in any court” did not include

foreign courts.

According to Chief Judge Katzmann, the phrase “in

any court” was “ambiguous” (p. 74).

The panel therefore turned to

the legislative history and concluded that the Senate Report “unmis-

takably contemplated felonies, for purposes of the Gun Control Act, to

include only convictions in federal and state courts” of the United

States.

The Supreme Court came to the same conclusion by a 5–3 vote,

with an opinion written by Justice Breyer.

Importantly, however, the

Supreme Court never said that the phrase “in any court” was ambigu-

ous.

Instead, the Court relied partly on a variation of a substan-

tive canon of construction: the presumption against extraterritorial

application.

The Court concluded that domestically oriented statutes

should apply only domestically in the absence of contrary signals from

Congress.

Justice Thomas, joined by Justices Scalia and Kennedy, dissented.

He would have held that “any court” means “any court.”

He said

that the presumption against extraterritoriality had no application in

this context.

In response to the Court’s use of legislative history, Jus-

tice Thomas also explained that he read the provision’s drafting histo-

ry — in which the original draft that specified any felony conviction in

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

18 U.S.C. § 922(g)(1) (2000).

Gayle, 342 F. 3d at 90.

Of course, in a case like this, the Government should have to prove that the defendant knew

that he was ineligible to possess firearms — for example, by notice provided to him by the Gov-

ernment. See United States v. Burwell, 690 F.3d 500, 529 (D.C. Cir. 2012) (en banc) (Kavanaugh,

J., dissenting) (“The presumption of mens rea applies to each element of the offense.”); see also

United States v. Moore, 612 F.3d 698, 704 (D.C. Cir. 2010) (Kavanaugh, J., concurring).

See Gayle, 342 F. 3d at 90.

See also id. at 90, 92–93. The Second Circuit also noted that certain federal and state of-

fenses were excluded from the list of predicate offenses. The Second Circuit thought it odd that

Congress would exclude federal and state offenses, but not foreign offenses of the same character.

Id. at 93.

Id. at 94.

See Small v. United States, 544 U.S. 385, 387 (2005). Chief Justice Rehnquist took no part

in the decision.

See Small, 544 U.S. 385.

See id. at 388–91.

See id. at 390–91.

Id. at 394 (Thomas, J., dissenting).

Id. at 395.

Id. at 399–401.

2132 HARVARD LAW REVIEW [Vol. 129:2118

a “Federal” or “State” court was replaced by the phrase “any court” —

to confirm his reading of the text.

In terms of the statutory text alone, Justice Thomas’s dissent for

himself and Justices Scalia and Kennedy is more persuasive than the

majority opinion of the Supreme Court. That said, the majority opin-

ion did illustrate how substantive canons of interpretation — there, the

presumption against extraterritoriality — can play an important role in

statutory interpretation by sometimes overriding the best interpreta-

tion of even clear text. Importantly, none of the eight Justices said the

phrase “in any court” was ambiguous.

The last case discussed by Chief Judge Katzmann, Murphy v.

Arlington Central School District Board of Education,

is perhaps the

most important and intriguing of the three in order to understand his

point of view. The relevant statute — the Individuals with Disabilities

Education Act

(IDEA) — allowed the court to award “reasonable at-

torneys’ fees as part of the costs” to prevailing plaintiffs.

The ques-

tion was whether this statute allowed the award of the costs of expert

witnesses and consultants.

Importantly, the legislative history (in

particular, a committee report) suggested that the answer to that ques-

tion was yes, even though the statutory language supplied no indica-

tion that the statute meant to cover the costs of expert witnesses and

consultants. In essence, this was a classic Holy Trinity case. What

Congress said in the statutory text did not appear to square with what

Congress meant to say, at least if the committee report could be said to

authoritatively reflect Congress’s intent.

The Second Circuit acknowledged that the text of the statute did

not encompass these expert witness fees.

But the court nonetheless

read the legislative history and the larger purposes of the statute to

contemplate fee awards for expert witnesses and consultants.

As the

Second Circuit noted, the committee report stated that the conferees

intended the term “reasonable attorneys’ fees as part of the costs” to

encompass expert witness fees.

The Supreme Court reversed, concluding that the phrase “rea-

sonable attorneys’ fees as part of the costs” did not encompass ex-

pert witness fees.

The decision was 6–3 and written by Justice

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Id. at 406–07.

402 F.3d 332 (2d. Cir. 2005), rev’d, 548 U.S. 291 (2006).

20 U.S.C. §§ 1400–1482 (2012).

Id. § 1415(i)(3)(B).

Murphy, 402 F. 3d at 333.

See id. at 336.

See id. at 336–38.

See id. at 336–37 (citing H.R. R

. N

. 99-687, at 5 (1986) (Conf. Rep.)).

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 293–94 (2006).

2016] FIXING STATUTORY INTERPRETATION 2133

Alito.

The Court expressly rejected the notion that legislative history

could defeat an unambiguous text.

In doing so, the Court once again

rejected the Holy Trinity principle.

The Court also noted that the

IDEA was enacted under the Spending Clause, meaning that States

would be required to pay only if the Act provided “clear notice” that

expert witness fees were covered, which the Act did not.

In dissent, Justice Breyer adopted a Holy Trinity–style approach.

He criticized the majority’s refusal to prioritize the legislative history

over the text in this instance. “By disregarding a clear statement in a

legislative Report,” he wrote, “the majority opinion has reached a re-

sult that no Member of Congress expected or overtly desired.”

F. Improving Congress’s Drafting of Statutes

In the final pages of his book, Chief Judge Katzmann promotes

ideas for improving mutual understanding between the legislature and

the courts (pp. 92–103). Although he correctly says that it would be

“fanciful” to think that Congress could do away entirely with ambigui-

ty in laws, he points out that there are nevertheless several ways

Congress could help clarify legislative meaning (p. 93).

First, Chief Judge Katzmann suggests that “legislators and their

staffs should make greater use of the skilled legislative drafters in their

offices of legislative counsel” (p. 93). These offices could maintain a

checklist of common issues, including statutes of limitations, private

rights of action, preemption, and effective dates (p. 93). I agree fully

with this excellent suggestion.

Chief Judge Katzmann also suggests that Congress formally adopt

a series of default rules that become effective when the legislative

branch has not dealt with a particular issue in a statute (p. 94). For

example, Congress could enact a default statute of limitations (p. 94).

Again, this is a great idea.

Chief Judge Katzmann also says that Congress should be more

ready and willing to fix statutes when mistakes become apparent in

later court cases (pp. 94–102). Again, I agree, although I am always

quick to stress that it is much harder to enact statutes than it is to

block them. For a court to say that Congress can fix a statute if it

does not like the result is not a neutral principle in our separation of

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Id. at 293. Justice Alito wrote for a five-Justice majority, and Justice Ginsburg concurred in

part and concurred in the judgment. Id.

Id. at 296–97, 304.

See id.; see also infra notes 190–195 and accompanying text.

See Murphy, 548 U.S. at 295–98.

See id. at 324 (Breyer, J., dissenting).

Cf. Gregory E. Maggs, Reducing the Costs of Statutory Ambiguity: Alternative Approaches

and the Federal Courts Study Committee, 29 H

ARV

. J.

EGIS

. 123, 158–60 (1992). See gener-

ally E

INER

LHAUGE

, S

TATUTORY

EFAULT

ULES

(2008).

2134 HARVARD LAW REVIEW [Vol. 129:2118

powers scheme because it is very difficult for Congress to correct a

mistaken statutory decision.

The backdrop of possible congressional

correction is not a good reason for courts to do anything but their level

best to decide the case correctly in the first place.

Chief Judge Katzmann also argues for making legislative history

more reliable (pp. 102–03). For example, he asks that the floor manag-

ers of a bill indicate which legislative reports count as authoritative (p.

102). To my mind, however, this suggestion quite elegantly reveals one

of the concerns with legislative history. Legislative history is not au-

thoritative — at least in a formal sense — because Congress does not

vote on it. Allowing the floor managers (a tiny fraction of the Mem-

bers of Congress necessary to pass the law) to designate particular

documents as “authoritative” does not solve that problem. As I men-

tioned earlier, there’s an easy solution to that problem: put the key

committee or conference reports (or at least the key provisions of them)

into the statute itself and have the Members of Congress vote on it.

Then it would be both formally and functionally authoritative. In my

view, implementing that proposal would be more effective and far

more acceptable to all judges than what Chief Judge Katzmann pro-

poses here.

II.

HESIS

: E

LIMINATING

EDUCING

HRESHOLD

ETERMINATIONS

LARITY

ERSUS

MBIGUITY

Chief Judge Katzmann’s book should trigger more introspection

and debate about statutory interpretation by judges, scholars, and

practitioners. It has certainly done so for me. Chief Judge Katzmann

has pushed me to think even more deeply about some of these issues

than I had before. Of course, he is not to blame for where my think-

ing has led me.

Chief Judge Katzmann’s discussion of using legislative history to

resolve ambiguities triggers my first big question: how do we deter-

mine whether the text of a statute is clear or ambiguous?

A. Judges Have Trouble Determining Whether

a Statute Is Clear or Ambiguous

In recent years, the Supreme Court has often repeated a critical

principle: when the text of the statute is clear, the court does not resort

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

As Judge Easterbrook nicely put it before he took the bench: “There are a hundred ways in

which a bill can die even though there is no opposition to it.” Frank H. Easterbrook, Statutes’

Domains, 50 U.

. L. R

. 533, 538 (1983).

See supra notes 16–24 and accompanying text. See generally Manning, supra note 16.

2016] FIXING STATUTORY INTERPRETATION 2135

to legislative history.

Likewise, when the text of the statute is clear, a

court should not turn to other principles of statutory interpretation

such as the constitutional avoidance canon or Chevron deference.

Chief Judge Katzmann himself notes this point many times.

Under the structure of our Constitution, Congress and the Presi-

dent — not the courts — together possess the authority and responsi-

bility to legislate.

As a result, clear statutes are to be followed. Stat-

utory texts are not just common law principles or aspirations to be

shaped and applied as judges think reasonable.

This tenet — adhere

to the text — is neutral as a matter of politics and policy. The statuto-

ry text may be pro-business or pro-labor, pro-development or pro-

environment, pro-bank or pro-consumer. Regardless, judges should

follow clear text where it leads.

At the same time, when the text of the statute is ambiguous rather

than clear, judges may resort to a variety of canons of construction.

These ambiguity-dependent canons include: (1) in cases of textual am-

biguity, avoid interpretations raising constitutional questions; (2) rely

on the legislative history to resolve textual ambiguity; and (3) in cases

of textual ambiguity, defer to an executive agency’s reasonable inter-

pretation of a statute, also known as Chevron deference.

All of these canons, however, depend on a problematic threshold

dichotomy.

Courts may resort to the canons only if the statute is not

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

See, e.g., Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) (“[W]here the statutory

language provides a clear answer, [our analysis] ends there . . . .”).

As Chief Judge Katzmann recognizes, in most cases “the interpretive problem arises because

the statute is ambiguous” (p. 30). For if the statute is unambiguous, then “the inquiry for a court

generally ends with an examination of the words of the statute” (p. 29). But, Chief Judge

Katzmann continues, “[w]hen the text is ambiguous, a court is to provide the meaning that the

legislature intended. In that circumstance, the judge gleans the purpose and policy underlying the

legislation and deduces the outcome most consistent with those purposes” (pp. 31–32). In doing

so, he argues, the court should rely on legislative history, particularly “authoritative” committee

reports (p. 38).

See, e.g., Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 H

ARV

. L. R

405, 415 (1989).

See id.

A number of other canons also depend on a threshold finding of ambiguity, such as the rule

of lenity and the Charming Betsy canon. I do not address all such canons in this Book Review.

In any event, as I say in the text, each ambiguity-dependent canon should be independently eval-

uated. I am not proposing a one-size-fits-all solution.

Chief Judge Katzmann does not address this threshold dichotomy, even though he high-

lights its significance. He frames the choice judges face in interpreting statutes in this way:

“Should the judge confine herself to the text even when the language is ambiguous? Should the

judge, in seeking to make sense of an ambiguity or vagueness, go behind the text of the statute to

legislative materials, and if so, to which ones?” (p. 3). Buried in this question, however, is the crit-

ical threshold question of whether the statute is ambiguous in the first place.

Chief Judge Katzmann does not directly engage this question. In fact, few do, at least in

any detailed way. Professor Ward Farnsworth probably has done so best. See Ward Farnsworth

et al., Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation, 2 J.

EGAL

2136 HARVARD LAW REVIEW [Vol. 129:2118

clear but rather is ambiguous.

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 trigger-

ing the ambiguity-dependent canons?

Unfortunately, there is often no good or predictable way for judges

to determine whether statutory text contains “enough” ambiguity to

cross the line beyond which courts may resort to the constitutional

avoidance canon, legislative history, or Chevron deference. In my ex-

perience, judges will often go back and forth arguing over this point.

One judge will say that the statute is clear, and that should be the end

of it. The other judge will respond that the text is ambiguous, mean-

ing that one or another canon of construction should be employed to

decide the case. Neither judge can convince the other.

That’s be-

cause there is no right answer.

It turns out that there are at least two separate problems facing

those disagreeing judges.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

NALYSIS

257 (2010); see also Re, supra note 34; Brian G. Slocum, The Importance of Being Am-

biguous: Substantive Canons, Stare Decisis, and the Central Role of Ambiguity Determinations in

the Administrative State, 69 M

. L. R

. 791 (2010); Lawrence M. Solan, Pernicious Ambiguity

in Contracts and Statutes, 79 C

.-K

ENT

L. R

. 859 (2004); Note, “How Clear Is Clear” in

Chevron’s Step One?, 118 H

ARV

. L. R

. 1687 (2005); cf. J

OHN

F. M

ANNING

& M

ATTHEW

TEPHENSON

, L

EGISLATION

AND

EGULATION

171 (2d ed. 2013) (“Another concern here is

just how one defines or determines ‘ambiguity’ in the statute’s semantic meaning.”); Susannah

Landes Foster, Note, When Clarity Means Ambiguity: An Examination of Statutory Interpreta-

tion at the Environmental Protection Agency, 96 G

. L.J. 1347, 1362 (2008) (“A fair question is

how agencies should figure out when Congress has been clear.”).

See Solan, supra note 88, at 861 (“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. Whether the text is a statute, a contract, or an insurance policy, once a court finds the

language to be plain, it will typically refrain from engaging in a variety of contextually-based in-

terpretive practices.”); see also id. at 862.

See Farnsworth et al., supra note 88, at 276.

Of course, this analysis makes two assumptions.

First, it assumes that judges can agree on the meaning of “clarity” and “ambiguity” in the

first place. But as a number of scholars have pointed out, there are many — and conflicting —

definitions of these two terms. See, e.g., W

ILLIAM

D. P

OPKIN

, A D

ICTIONARY

TATUTORY

NTERPRETATION

11 (2007) (observing that “‘[a]mbiguity’ is ambiguous,” and then providing

three different definitions); Farnsworth et al., supra note 88, at 258 (distinguishing between exter-

nal and internal judgments about ambiguity); Slocum, supra note 88, at 799–802; Sanford Schane,

Ambiguity and Misunderstanding in the Law, 25 T.

EFFERSON

L. R

. 167, 171–72 (2002) (dis-

tinguishing between lexical ambiguity and syntactic ambiguity); see also Solan, supra note 88, at

859 (“The problem, perhaps ironically, is that the concept of ambiguity is itself perniciously am-

biguous.”). To complicate things even further, different definitions of ambiguity can lead to dif-

ferent outcomes. See Farnsworth et al., supra note 88, at 271 (“[D]ifferent ways of asking about

ambiguity produce different conclusions about its existence.”).

Second, it assumes that the line dividing ambiguity from clarity remains the same across

(and within) all doctrines. In other words, this analysis assumes that the level of ambiguity neces-

sary for moving to step two of Chevron is the same level of ambiguity required before a court may

consult legislative history. But who knows whether that’s true? In fact, in some cases, the

Supreme Court has implied a different clarity versus ambiguity threshold for certain doctrines.

2016] FIXING STATUTORY INTERPRETATION 2137

First, judges must decide how much clarity is needed to call a stat-

ute clear.

If the statute is 60-40 in one direction, is that enough to

call it clear? How about 80-20? Who knows?

Second, let’s imagine that we could agree on an 80-20 clarity

threshold. In other words, suppose that judges may call a text “clear”

only if it is 80-20 or more clear in one direction. Even if we say that

80-20 is the necessary level of clear, how do we then apply that 80-20

formula to particular statutory text? Again, who knows? Determining

the level of ambiguity in a given piece of statutory language is often

not possible in any rational way.

One judge’s clarity is another

judge’s ambiguity. It is difficult for judges (or anyone else) to perform

that kind of task in a neutral, impartial, and predictable fashion.

I tend to be a judge who finds clarity more readily than some of my

colleagues but perhaps a little less readily than others.

In practice, I

probably apply something approaching a 65-35 rule. In other words, if

the interpretation is at least 65-35 clear, then I will call it clear and re-

ject reliance on ambiguity-dependent canons. I think a few of my col-

leagues apply more of a 90-10 rule, at least in certain cases. Only if

the proffered interpretation is at least 90-10 clear will they call it

clear.

By contrast, I have other colleagues who appear to apply a 55-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

See, e.g., Chapman v. United States, 500 U.S. 453, 463 (1991) (describing the rule of lenity as trig-

gered by “grievous ambiguity” (quoting Huddleston v. United States, 415 U.S. 814, 831 (1974))).

Some scholars have even suggested tailoring the clarity versus ambiguity threshold not only to

doctrines, but also to individual cases within a single doctrine. See, e.g., Note, supra 88, at 1699–

703 (suggesting that Chevron’s step one inquiry could be calibrated based on the type of delega-

tion and agency at issue).

See Slocum, supra note 88, at 808 (noting “the lack of consensus regarding the probabilistic

threshold an interpretation must meet in order to render a statutory provision unambiguous”);

Note, supra 88, at 1698; see also Kagan, supra note 1, at 58:20 (“Some people think things are

clear in circumstances in which other people think there’s still a lot of question marks.”).

See Farnsworth et al., supra note 88, at 276 (noting that there are no legal standards for

ambiguity, and there is “no way to falsify a judge’s claim one way or the other”).

See id. (“[I]mpressionistic judgments are doing important work.”).

For an example of conflicting thresholds at work, see Northeast Hospital Corp. v. Sebelius,

657 F. 3d 1 (D.C. Cir. 2011). In that case, the majority found the Medicare statute ambiguous as to

whether a hospital patient who “receives Medicare benefits under Medicare Part C for a particu-

lar ‘patient day[]’ is . . . also ‘entitled’ for that same ‘patient day’ to Medicare benefits under

Medicare Part A.” Id. at 18 (Kavanaugh, J., concurring in the judgment); see also id. at 11 (ma-

jority opinion). The majority admitted the difficulties in the agency’s position, but chose to defer

to the agency under Chevron because it was “faced with two inconsistent sets of statutory provi-

sions.” Id. at 11. In contrast, I found the statute clear and declined to defer to the agency. Id. at

18 (Kavanaugh, J., concurring in the judgment).

Judge Silberman explains that:

[E]ven assuming one is scrupulously honest in reading a statute thoroughly and looking

carefully at its linguistic structure, legitimate ambiguities, which give room for differing

good-faith interpretations, more often than not appear in our cases. If a case is resolved

at the first step of Chevron, one must assume a situation where either a petitioner has

brought a particularly weak case to the court of appeals, or the agency is sailing directly

against a focused legislative wind. Neither eventuality occurs very often. Litigation is

2138 HARVARD LAW REVIEW [Vol. 129:2118

45 rule. If the statute is at least 55-45 clear, that’s good enough to call

it clear.

Who is right in that debate? Who knows? No case or canon of in-

terpretation says that my 65-35 approach or my colleagues’ 90-10 or

55-45 approach is the correct one (or even a better one). Of course,

even if my colleagues and I could agree on 65-35, for example, as the

appropriate trigger, we would still have to figure out whether the text

in question surmounts that 65-35 threshold. And that itself is a diffi-

cult task for different judges to conduct neutrally, impartially, and

predictably.

The simple and troubling truth is that no definitive guide exists for

determining whether statutory language is clear or ambiguous. In a

considerable understatement, the Supreme Court itself has admitted

that “there is no errorless test for identifying or recognizing ‘plain’ or

‘unambiguous’ language.”

Professor Ward Farnsworth has elaborat-

ed persuasively on that point, arguing that “[t]here are no rules or clear

agreements among judges about just how to decide whether a text is

ambiguous.”

As he puts it:

For making that determination, no theory helps; it is simply a judgment

about the clarity of the English and whether it is reasonable to read it

more than one way. It may be that the holders of some theories are more

likely to answer that question one way rather than another, but the theo-

ries themselves are incapable of generating answers.

100

That conceptual problem opens the door to a more practical con-

cern. “[J]udgments about ambiguity . . . are dangerous,” Farnsworth

concludes, “because they are easily biased by strong policy preferences

that the makers of the judgments hold.”

101

Because judgments about

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

expensive for private parties and agencies are rarely so cavalier in interpreting their

statutes.

Laurence H. Silberman, Chevron — The Intersection of Law & Policy, 58 G

. W

ASH

. L. R

821, 826 (1990).

Justice Scalia self-identified into this camp. See Scalia, supra note 40, at 521.

United States v. Turkette, 452 U.S. 576, 580 (1981).

Farnsworth et al., supra note 88, at 273; see also id. at 275 (“[T]here is ‘no errorless test’ (in-

deed, there is no strictly legal test at all) for deciding whether a text is clear. Again, there are the-

ories that say what to do when a statute is ambiguous, but there are no theories that help deter-

mine whether a statute is ambiguous, as by offering metrics for measuring its clarity or standards

that the clarity must meet.”).

100

Id. at 274 (emphasis omitted) (footnote omitted); see also Slocum, supra note 88, at 795

(“[T]he selection of interpretive tools to provide contextual evidence of ambiguity, the persuasive

force to give each interpretive tool, and the point at which the interpretive tools are deemed not to

signal a correct meaning are, among other related issues, entirely matters of judicial judgment.”).

101

Farnsworth et al., supra note 88, at 290; see also id. at 271 (“[S]imple judgments of ambigui-

ty create a substantial risk of bias from policy preferences that the makers of the judgments hold.

When respondents are asked how ambiguous a statute seems or whether two proposed readings of

it are plausible, their judgments about the answers tend to follow the strength of their preferences

about the outcome as a matter of policy: the more strongly they prefer one reading over the other,

2016] FIXING STATUTORY INTERPRETATION 2139

clarity versus ambiguity turn on little more than a judge’s instincts, it

is harder for judges to ensure that they are separating their policy

views from what the law requires of them.

102

And it’s not simply a

matter of judges trying hard enough: policy preferences can seep into

ambiguity determinations in subconscious ways.

103

As a practical mat-

ter, judges don’t make the clarity versus ambiguity determination be-

hind a veil of ignorance; statutory interpretation issues are all briefed

at the same stage of the proceeding, so a judge who decides to open

the ambiguity door already knows what he or she will find behind it.

Unfortunately, moreover, the clarity versus ambiguity question

plays right into what many consider to be the worst of our professional

training. As lawyers, we are indoctrinated from the first days of law

school to find ambiguity in even the clearest of pronouncements. It is

no accident that the most popular law school exam preparation book is

titled Getting to Maybe.

104

When we practice law, we look for the

ambiguity when defending a criminal defendant, a corporate client, an

agency, or even a President. What may look clear to everyone else,

lawyers argue, is actually not so clear. Maybe it is good that we do

this as lawyers (although I am not so sure because I think it leads some

lawyers to green-light clients to do things that they should not do).

But it is one reason that many people hate lawyers.

105

And it can be

pernicious when we bring that instinct onto the bench and employ it to

make statutory interpretation much more difficult and unpredictable

than it can and should be.

106

The problem of difficult clarity versus ambiguity determinations

would not be quite as significant if the issue affected cases only on the

margins. But the outcome of many cases turns on the initial — and

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

the more likely they are to say that the statute is unambiguous or that only one reading of the text

is plausible.”).

102

See id. at 276 (“Perhaps this is not surprising; in the absence of any legal test to guide one’s

thought process about clarity, one’s own strong views about policy might be a natural or at any

rate an inevitable place to go for guidance.”).

103

See, e.g., Dan M. Kahan, The Supreme Court, 2010 Term — Foreword: Neutral Principles,

Motivated Cognition, and Some Problems for Constitutional Law, 125 H

ARV

. L. R

. 1, 19–26

(2011). In his study, Farnsworth found that judgments about ambiguity were not affected by pol-

icy preferences when respondents were asked “whether ordinary readers of English would be like-

ly to agree on the best reading of the statute in that case.” Farnsworth et al., supra note 88, at

272. But as noted earlier, courts have not distinguished doctrinally between different definitions

of ambiguity in a way that might prevent policy preferences from influencing ambiguity determi-

nations. See supra note 91.

104

ICHARD

ICHAEL

ISCHL

& J

EREMY

AUL

, G

ETTING

AY BE

(1999).

105

Cf. W

ILLIAM

HAKESPEARE

, T

ECOND

ART

ING

ENRY

THE

IXTH

act. 4,

sc. 2, l. 71 (Roger Warren ed., Oxford University Press 2002) (1591) (“The first thing we do, let’s

kill all the lawyers.”).

106

See Silberman, supra note 96, at 826 (“[V]irtually any phrase can be rendered ambiguous if

a judge tries hard enough.”); cf. C

LARK

M. N

EILY

III, T

ERMS

NGAGEMENT

115 (2013)

(noting critically that “lawyers are trained to find ambiguity in anything”).

2140 HARVARD LAW REVIEW [Vol. 129:2118

often incoherent — dichotomy between ambiguity and clarity. As

Farnsworth correctly notes: “Determinations of ambiguity are the

linchpin of statutory interpretation.”

107

As a result, there can be serious incentives and pressures — often

subconscious — for judges to find textual ambiguity or clarity in cer-

tain cases.

108

For example, a judge may find that the answer provided

by the legislative history accords better with the judge’s sense of rea-

son, justice, or policy. In that situation, the judge is subtly incentiv-

ized to categorize the statute as ambiguous in order to create more

room to reach a result in line with what the judge thinks is a better,

more reasonable policy outcome. Conversely, the judge may conclude

that the interpretation offered by an agency does not accord with the

judge’s sense of reason, justice, or policy. In that case, the judge may

avoid Chevron deference simply by finding a sufficient degree of clari-

ty in the statute at the outset. (Once again, keep in mind that no one

has told courts, or could meaningfully tell courts, how much clarity is

enough to call a text clear rather than ambiguous for these purposes.)

Moreover, once judges make the key move of finding text ambigu-

ous, then they can take full advantage of the large shed of ambiguity-

dependent tools and canons. And because there is no neutral method

to evaluate whether a text is clear or ambiguous, that initial move is a

surprisingly easy one for judges to make.

109

As Farnsworth explains,

“[t]he ‘magic wand of ipse dixit’ is the standard tool for deciding such

matters.”

110

A number of important Supreme Court decisions have implicated

the clarity versus ambiguity problem. For example, consider some of

the cases that have turned on the constitutional avoidance canon in the

recent past: the NFIB healthcare case,

111

the NAMUDNO voting

rights case,

112

and the Wisconsin Right to Life campaign finance

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

107

Farnsworth et al., supra note 88, at 257.

108

See id. at 281 (“[H]ow a statute gets interpreted in the end, or who does the interpreting, will

often depend on whether it is found ambiguous at the outset.”); see also Solan, supra note 88, at

865 (“[C]ourts themselves may not be sincere when they hold that the language of a statute is

clear. For example, a judge may believe that language is susceptible to a number of interpreta-

tions, but say it is clear anyway in order to avoid triggering an interpretive doctrine that would

lead to a result that she considers unjust in a particular case. When interpretive doctrine pushes

judges toward putting more rhetorical weight on the language than they may feel is just in a par-

ticular case, it would not be surprising to find that they write insincerely about language in order

to reach a result they believe is fair.” (footnote omitted)).

109

See Slocum, supra note 88, at 809 (arguing that the concept of “statutory ambiguity” is “an

inherently subjective interpretation that is highly amenable to judicial manipulation”).

110

Farnsworth et al., supra note 88, at 276 (quoting United States v. Yermian, 468 U.S. 63, 77

(1984) (Rehnquist, J., dissenting)).

111

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).

112

Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009).

2016] FIXING STATUTORY INTERPRETATION 2141

case.

113

Those were hugely significant cases, each of which turned to a

significant extent on an initial question of whether the relevant statute

was clear or ambiguous. If the statute was ambiguous, then the Court

could resort to the constitutional avoidance canon. If the statute was

clear, then there would be no warrant for using the constitutional

avoidance canon. All of these cases were extraordinarily important,

and all were decided on the basis of a necessarily difficult evaluation

of whether the text was clear or ambiguous.

Or consider the cases that have turned on Chevron deference. As

Justice Scalia explained twenty-five years ago: “How clear is clear? It

is here, if Chevron is not abandoned, that the future battles over ac-

ceptance of agency interpretations of law will be fought.”

114

And, in

fact, the Court has skirmished over exactly this terrain numerous times

in the last twenty-five years, including in cases such as Michigan v.

EPA,

115

Scialabba v. Cuellar de Osorio,

116

EPA v. EME Homer City

Generation, L.P.,

117

Massachusetts v. EPA,

118

FDA v. Brown &

Williamson Tobacco Corp.,

119

Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon,

120

and MCI Telecommunications

Corp. v. AT&T Co.

121

A good example of the importance of the threshold ambiguity de-

termination is MCI. There, the Court considered two provisions of the

Communications Act of 1934.

122

The first provision — section

203(a) — required communications common carriers to file tariff

schedules with the Federal Communications Commission (FCC).

123

The second provision — section 203(b) — granted the FCC the power

to “modify” any requirement of the first provision.

124

The question be-

fore the Supreme Court was deceptively simple: does the power to

“modify” any requirement of the first provision include the power “to

make tariff filing optional for all nondominant long-distance carriers,”

as the FCC claimed?

125

In trying to answer this question, the Court divided over whether

the statute was ambiguous. Led by Justice Scalia, the majority stated

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

113

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 (2007).

114

See Scalia, supra note 40, at 520–21.

115

135 S. Ct. 2699 (2015).

116

134 S. Ct. 2191 (2014).

117

134 S. Ct. 1584 (2014).

118

549 U.S. 497 (2007).

119

529 U.S. 120 (2000).

120

515 U.S. 687 (1995).

121

512 U.S. 218 (1994).

122

Pub. L. No. 73-416, 48 Stat. 1064 (1934) (codified as amended in scattered sections of 47

U.S.C.).

123

47 U.S.C. § 203(a) (1988).

124

Id. § 203(b)(2).

125

MCI, 512 U.S. at 220.

2142 HARVARD LAW REVIEW [Vol. 129:2118

that it had “not the slightest doubt” that the statute did not allow the

FCC to make tariff filing optional for a broad category of common

carriers.

126

In dissent, Justice Stevens disagreed vehemently.

127

In his

view, the statute “plainly confer[red] at least some discretion to modify

the general rule that carriers file tariffs.”

128

By casting aside the tradi-

tional “ample leeway” extended to the agency, he argued, the majority

had seized on “a rigid literalism that deprives the FCC of the flexibil-

ity Congress meant it to have.”

129

In that case, eight Justices came to two different answers about

whether the statute was clear or ambiguous. That outcome will hardly

reassure those who wish to keep the clarity versus ambiguity question

as part of statutory interpretation. And MCI represents only one of

many cases in which the Supreme Court has wrestled with determina-

tions of ambiguity, to say nothing of the vast number of cases con-

fronting the lower courts.

All of these cases came down to what turns out to be an entirely

personal question, one subject to a certain sort of ipse dixit: is the

language clear, or is it ambiguous? No wonder people suspect that

judges’ personal views are infecting these kinds of cases. We have set

up a system where that suspicion is almost inevitable because the reali-

ty is almost inevitable.

Of course, in characterizing some of these decisions as examples of

the problem, I am not in any way suggesting that the judges who au-

thored them acted in an improper or political manner. To the con-

trary: most judges apply the doctrine as faithfully as possible. But too

much of current statutory interpretation revolves around personally

instinctive assessments of clarity versus ambiguity, as these cases am-

ply show. It is difficult to make these assessments in a neutral, even-

handed way, or for different judges to reach the same assessments con-

sistently. And even if judges could make threshold findings of

ambiguity in a neutral way, they still would have trouble convincing

the public that they were acting impartially. It is all but impossible to

communicate clarity versus ambiguity determinations in a reasoned

and accountable way — especially when those determinations lead di-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

126

Id. at 228.

127

Justice Stevens was joined by Justices Blackmun and Souter. Justice O’Connor took no

part in the consideration or decision of the case.

128

MCI, 512 U.S. at 239 (Stevens, J., dissenting).

129

Id. at 235. Although Justice Stevens did not describe the statute as “ambiguous,” he stated

that the agency was entitled to deference under Chevron. Id. at 245. That implies that he found

the statute ambiguous; otherwise, deference under step two of Chevron would not have been

warranted.

2016] FIXING STATUTORY INTERPRETATION 2143

rectly to the results in controversial cases.

130

Perhaps unsurprisingly,

then, over time a number of Supreme Court Justices have expressed

frustration with the difficulty — and arbitrariness — of the threshold

inquiry.

131

This kind of decisionmaking threatens to undermine the stability of

the law and the neutrality (actual and perceived) of the judiciary.

132

After nearly a decade on the bench, I have a firm sense that the clarity

versus ambiguity determination — is the statute clear or ambigu-

ous? — is too often a barrier to the ideal that statutory interpretation

should be neutral, impartial, and predictable among judges of different

partisan backgrounds and ideological predilections.

My point here should not be misunderstood. Statutes will always

have many ambiguities. That is the nature of language, including

Congress’s language. We cannot eliminate or avoid ambiguities, or

wish them away. Chief Judge Katzmann puts it well: “it is unreason-

able to expect Congress to anticipate all interpretive questions that

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

130

As Farnsworth illustrates colorfully: “If one person says that both proposed readings of a

statute seem plausible, and a colleague disagrees, finding one reading too strained, what is there

to do about it but for each to stamp his foot?” Farnsworth et al., supra note 88, at 276.

131

See, e.g., United States v. Hansen, 772 F. 2d 940, 948 (D.C. Cir. 1985) (Scalia, J.) (“[The rule

of lenity] provides little more than atmospherics, since it leaves open the crucial question — al-

most invariably present — of how much ambiguousness constitutes an ambiguity.”); Exxon Mobil

Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 572 (2005) (Stevens, J., dissenting) (“Because ambi-

guity is apparently in the eye of the beholder, I remain convinced that it is unwise to treat the

ambiguity vel non of a statute as determinative of whether legislative history is consulted.”);

United States v. Yermian, 468 U.S. 63, 77–78 (1984) (Rehnquist, J., dissenting) (“Although ‘there is

no errorless test for identifying or recognizing “plain” or “unambiguous” language’ in a statute, the

Court’s reasoning here amounts to little more than simply pointing to the ambiguous phrases and

proclaiming them clear. In my view, it is quite impossible to tell which phrases the terms ‘know-

ingly and willfully’ modify, and the magic wand of ipse dixit does nothing to resolve that ambigu-

ity.” (first quoting United States v. Turkette, 452 U.S. 576, 580 (1981)); Kagan, supra note 1, at

56:25 (noting disagreements between the Justices about the presence or absence of ambiguity);

Scalia, supra note 40, at 520–21.

132

See Ethan J. Leib & Michael Serota, The Costs of Consensus in Statutory Construction, 120

ALE

L.J. O

NLINE

47, 59 (2010) (“[W]ithout guidance to help judges understand the threshold

inquiry into ambiguity that is supposed to constrain them, the benefits of curbing judicial discre-

tion vanish. Detached from the help of any extrinsic aids, textual analysis and debating whether

something is ambiguous may promote even more unbridled judicial decision by intuition.”); cf.

Antonin Scalia, Essay, The Rule of Law as a Law of Rules, 56 U.

. L. R

. 1175, 1182 (1989)

(“[W]e should recognize that, at the point where an appellate judge says that the remaining issue

must be decided on the basis of the totality of the circumstances, or by a balancing of all the fac-

tors involved, he begins to resemble a finder of fact more than a determiner of law. To reach such

a stage is, in a way, a regrettable concession of defeat — an acknowledgment that we have passed

the point where ‘law,’ properly speaking, has any further application. And to reiterate the unfor-

tunate practical consequences of reaching such a pass when there still remains a good deal of

judgment to be applied: equality of treatment is difficult to demonstrate and, in a multi-tiered

judicial system, impossible to achieve; predictability is destroyed; judicial arbitrariness is facilitat-

ed; judicial courage is impaired.”). Although Justice Scalia was condemning judicial tests based

on balancing or a totality of the circumstances, his criticism applies even more strongly to judicial

tests based on nothing more than a judge’s unguided intuition.

2144 HARVARD LAW REVIEW [Vol. 129:2118

may present themselves in the future,” particularly when Congress op-

erates under strict “time pressures” (p. 47).

But even though ambiguity is unavoidable as a practical matter,

perhaps we can avoid attaching serious interpretive consequences to

binary ambiguity determinations that are so hard to make in a neutral,

impartial way. Instead of injecting the ambiguity problem into the

heart of statutory interpretation, we can consider whether to sideline

that threshold inquiry as much as possible.

B. Judges Should Determine the Best Reading of the Statute, Not

Whether It Is Clear or Ambiguous

What is the solution? To be perfectly candid, I’m not sure at this

point. But to start, perhaps we can try to examine ways to reduce re-

liance on the question of clarity versus ambiguity in the enterprise of

statutory interpretation without sacrificing some of the rules of statu-

tory interpretation that have helped structure the task. Here’s one

idea: judges should strive to find the best reading of the statute. They

should not be diverted by an arbitrary initial inquiry into whether the

statute can be characterized as clear or ambiguous. In other words,

we can try to make sure that judges do not — or at least only rarely —

have to ask whether a statute is clear or ambiguous in the course of in-

terpreting it.

Instead, statutory interpretation could proceed in a two-step pro-

cess. First, courts could determine the best reading of the text of the

statute by interpreting the words of the statute, taking account of the

context of the whole statute, and applying any other appropriate se-

mantic canons of construction.

133

Second, once judges have arrived at

the best reading of the text, they can apply — openly and honestly —

any substantive canons (such as plain statement rules or the absurdity

doctrine) that may justify departure from the text.

134

Under this two-

step approach, few if any statutory interpretation cases would turn on

an initial finding of clarity versus ambiguity in the way that they do

now.

How do judges determine the “best reading” of a statutory text un-

der the first step of my proposed approach? Courts should try to read

statutes as ordinary users of the English language might read and un-

derstand them. That inquiry is informed by both the words of the

statute and conventional understandings of how words are generally

used by English speakers. Thus, the “best reading” of a statutory text

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

133

For more on the semantic canons of construction, see infra Part III, pp. 2159–62.

134

The plain statement and absurdity rules tell us that the best reading of the statutory text

does not control in certain circumstances. But those rules, as I envision them, do not require that

judges make an initial determination of clarity versus ambiguity. See infra section II.B.4, pp.

2154–56; section II.C, pp. 2156–59.

2016] FIXING STATUTORY INTERPRETATION 2145

depends on (1) the words themselves, (2) the context of the whole stat-

ute, and (3) any other applicable semantic canons, which at the end of

the day are simply a fancy way of referring to the general rules by

which we understand the English language.

To be sure, determining the best reading of the statute is not always

easy. But we have tools to perform the task and communicate it to the

parties and public in our opinions. Why layer on a whole separate in-

quiry — is the statute clear or ambiguous? — that does not help un-

cover the best reading and that is inherently difficult to resolve in a

neutral, impartial, and predictable way?

135

But given that several existing canons depend on a threshold de-

termination of ambiguity, wouldn’t this proposed approach work a

significant change in certain aspects of statutory interpretation? Not

necessarily. It depends on which canons we end up discarding. Im-

portantly, moreover, this is not an all-or-nothing proposal: we could re-

fashion some ambiguity-dependent canons but not others depending

on the values at stake with particular canons.

136

Let’s take a look at a few of those canons.

1. The Constitutional Avoidance Canon. — Under the constitu-

tional avoidance canon, judges must interpret ambiguous statutes so as

to avoid a serious constitutional question, or actual unconstitutionality,

that would arise if the ambiguity were resolved in one direction rather

than the other.

137

For the canon to be triggered, however, there must

be ambiguity in the statute.

138

The canon is based on a theory of judicial restraint. Under this

theory, courts should avoid wading into difficult constitutional ques-

tions or holding statutes unconstitutional if they can reasonably avoid

doing so. That reluctance is said to have the additional effect of show-

ing respect for Congress by assuming that it would not have wanted to

legislate across a constitutional line.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

135

See Slocum, supra note 88, at 837 (“Ultimately, though, the ambiguity-elevating aspect of

Chevron places unnecessary emphasis on a purely subjective and discretionary standard and is

incongruent with the realities of statutory interpretation.”).

136

To take one example, I do not have a firm idea about how to handle the rule of lenity. Of

course, the Supreme Court seems to be very uncertain about the rule of lenity, too. Compare, e.g.,

Abramski v. United States, 134 S. Ct. 2259, 2272 n.10 (2014) (refusing to apply the rule of lenity

because any statutory ambiguity was resolved by “context, structure, history, and purpose”), with,

e.g., id. at 2280–82 (Scalia, J., dissenting) (criticizing “the majority’s miserly approach,” id. at

2281).

137

See Gomez v. United States, 490 U.S. 858, 864 (1989) (“It is our settled policy to avoid an

interpretation of a federal statute that engenders constitutional issues if a reasonable alternative

interpretation poses no constitutional question.”); see also S

CALIA

& G

ARNER

, supra note 7, at

247–51.

138

For a discussion, see M

ANNING

& S

TEPHENSON

, supra note 88, at 257–59 (setting out two

competing approaches to the idea of statutory “ambiguity” in the context of the avoidance canon).

2146 HARVARD LAW REVIEW [Vol. 129:2118

Of course, one initial problem with this doctrine is that Congress

may have wanted to legislate right up to the constitutional line but

didn’t know where it was and trusted the courts to make sure

Congress did not unintentionally cross the line.

139

So constitutional

avoidance can sometimes look more like judicial abdication — a fail-

ure to confront the constitutional question raised by the statute as

written — than judicial restraint. Another problem is that the doc-

trine can be invoked when there are mere questions of unconstitution-

ality rather than actual unconstitutionality.

140

As a result, the doctrine

gives judges enormous discretion to push statutes in one direction so as

to avoid even coming within a penumbra of the constitutional line.

Over the years, for these and other reasons, many critics have ad-

vocated scaling back the constitutional avoidance canon, at least as

applied to cases involving constitutional questions as opposed to actual

unconstitutionality.

141

For instance, Judge Easterbrook has described

“the canon of construing statutes to avoid constitutional doubt” as

“wholly illegitimate.”

142

Noting that constitutional “doubt is perva-

sive,” he explains that the constitutional avoidance canon “acts as a

roving commission to rewrite statutes to taste.”

143

As a result, the can-

on “is simultaneously unfaithful to the statutory text and an affront to

both of the political branches.”

144

Likewise, Judge Posner criticizes the

canon for “creat[ing] a judge-made constitutional ‘penumbra’ that has

much the same prohibitory effect as the judge-made (or at least judge-

amplified) Constitution itself.”

145

Along with the many other critics of

the constitutional avoidance canon, Judges Easterbrook and Posner

have made strong cases in my view.

Apart from (or in addition to) those reasons, I would consider jetti-

soning the constitutional avoidance canon for a different reason: the

trigger for the canon — clear or ambiguous? — is so uncertain.

That flaw was famously highlighted in NFIB v. Sebelius.

146

In an-

alyzing that case, it is perhaps important to underscore something

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

139

See Richard A. Posner, Statutory Interpretation — In the Classroom and in the Courtroom,

50 U.

. L. R

. 800, 815–16 (1983).

140

See Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 481 (1989) (Kennedy, J., concurring

in the judgment) (“The fact that a particular application of the clear terms of a statute might be

unconstitutional does not provide us with a justification for ignoring the plain meaning of the

statute.”).

141

See, e.g., Neal Kumar Katyal & Thomas P. Schmidt, Active Avoidance: The Modern

Supreme Court and Legal Change, 128 H

ARV

. L. R

. 2109, 2127–29 (2015); F

RIENDLY

, supra

note 7, at 209–12; Frank H. Easterbrook, Do Liberals and Conservatives Differ in Judicial Activ-

ism?, 73 U.

OLO

. L. R

. 1401, 1405–06 (2002); Posner, supra note 139, at 815–16.

142

Easterbrook, supra note 141, at 1405.

143

Id.

144

Id. at 1406.

145

Posner, supra note 139, at 816.

146

132 S. Ct. 2566 (2012).

2016] FIXING STATUTORY INTERPRETATION 2147

that seems to be overlooked by almost all observers, even those who

should know better. The Chief Justice agreed with the four dissenters

(Justices Scalia, Kennedy, Thomas, and Alito) on all of the key consti-

tutional and statutory issues raised about the individual mandate.

Those five Justices agreed about the scope of the Commerce and

Necessary and Proper Clauses.

147

They agreed about the scope of the

Taxing Clause.

148

And they agreed that the individual mandate provi-

sion was best read to impose a legal mandate rather than a tax.

149

short, they agreed that the individual mandate, best read, could not

be sustained as constitutional under the Commerce, Necessary and

Proper, and Taxing Clauses.

What they disagreed on with respect to the individual mandate —

and, amazingly, all that they disagreed on — was how to apply the

constitutional avoidance canon. In particular, they disagreed about

whether the individual mandate provision was sufficiently ambiguous

that the Court should resort to the constitutional avoidance canon.

150

Consider that for a moment. For all that has been written about

the NFIB case (and in particular about Chief Justice Roberts’s role),

the decision on the individual mandate turned not on the proper inter-

pretation of the Constitution and not on the best interpretation of the

statute. It turned entirely on how much room judges have to find am-

biguity when invoking the constitutional avoidance canon. In my

view, this is an odd state of affairs. A case of extraordinary magnitude

boils down to whether a key provision is clear or ambiguous, even

though we have no idea how much ambiguity is enough to begin with,

nor how to ascertain what level of ambiguity exists in a particular

statute.

My point here is not to debate whether the Chief Justice or the four

dissenters had the better argument about the clarity or ambiguity of

the statutory provision in question. My point is that such a question

arguably should not be part of the inquiry because — despite the best

efforts of conscientious judges — it is not answerable in a neutral, im-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

147

See id. at 2593 (opinion of Roberts, C.J.) (rejecting the Commerce Clause and Necessary

and Proper Clause arguments and citing the dissent in accord).

148

Compare id. at 2600 (majority opinion) (“Congress’s authority under the taxing power is lim-

ited to requiring an individual to pay money into the Federal Treasury, no more.”), with id. at

2651 (joint dissent) (describing the difference between taxes and penalties).

149

Compare id. at 2600 (opinion of Roberts, C.J.) (“[T]he statute reads more naturally as a

command to buy insurance than as a tax . . . .”), with id. at 2652 (joint dissent) (“So the question

is, quite simply, whether the exaction here is imposed for violation of the law. It unquestionably

is.”).

150

Compare id. at 2594 (opinion of Roberts, C.J.) (holding it was “fairly possible” to interpret

the individual mandate as a tax (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932))), with id. at

2651 (joint dissent) (arguing that “there is simply no way, ‘without doing violence to the fair

meaning of the words used,’” of interpreting the individual mandate as a tax (quoting Grenada

Cty. Supervisors v. Brogden, 112 U.S. 261, 269 (1884))).

2148 HARVARD LAW REVIEW [Vol. 129:2118

partial, or predictable way. A case of this magnitude should not turn

on such a question, but that is what the canon of constitutional avoid-

ance required, which is why those five Justices were all compelled to

confront and analyze it. (The other four Justices — Justices Ginsburg,

Breyer, Sotomayor, and Kagan — would have upheld the provision

under the Commerce Clause; they had no occasion to delve into the

Taxing Clause and the constitutional avoidance canon.)

If the constitutional avoidance canon were jettisoned, judges could

instead determine the best reading of the statute based on the words of

the statute, the context, and the agreed-upon canons of interpretation.

If that reading turned out to be unconstitutional, then judges could say

as much and determine the appropriate remedy by applying proper

severability principles.

Of course, severability principles are their own separate mess. As

currently framed, severability doctrine requires the judge to sever the

offending provision from the statute, to strike down the entire statute,

or to perform some other surgery. In deciding among this menu of op-

tions, the court must in part assess what Congress would have wanted

and whether the statute would be workable without the offending

provision.

151

But how can the court determine what Congress would have want-

ed? For instance, in the NFIB case, the dissenters tried to determine

whether Congress would have enacted the health care law without the

provisions the dissenters deemed unconstitutional.

152

They said no.

But how can we know? Is that really what then–Speaker of the House

Nancy Pelosi, then–Senate Majority Leader Harry Reid, President

Barack Obama, and all the Members of Congress who voted for the

bill, would have wanted? Is this even the right question to be asking?

Courts can reform principles of severability as well. For instance,

courts might institute a new default rule: sever an offending provision

from the statute to the narrowest extent possible unless Congress has

indicated otherwise in the text of the statute.

153

This default rule has

the benefit of stopping judges from trying to guess what Congress

would have wanted, an inherently suspect exercise.

154

And it has the

additional benefit of telling Congress what to expect.

Regarding NFIB, some contend that at least the narrowest version

of the severability principle could have led to the same bottom line

(eliminating the legal mandate but keeping the tax penalties on those

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

151

See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987).

152

See NFIB, 132 S. Ct. at 2668–76 (joint dissent).

153

This is what the Supreme Court did in Free Enterprise Fund v. Public Company Account-

ing Oversight Board, 561 U.S. 477 (2010). See id. at 508–10.

154

See generally John F. Manning, Essay, Inside Congress’s Mind, 115 C

OLUM

. L. R

. 1911

(2015).

2016] FIXING STATUTORY INTERPRETATION 2149

who fail to have insurance).

155

Others disagree with that notion. I

take no position here on how severability could have been applied in

that case, which is an extraordinarily difficult question in its own

right.

In any event, for all the reasons mentioned above, it may be worth

trading off increased reliance on severability principles in exchange for

decreased reliance on clarity versus ambiguity determinations in in-

voking the constitutional avoidance doctrine.

2. Legislative History. — A second ambiguity-dependent “canon” is

the principle — on which Chief Judge Katzmann focuses his book —

that we construe ambiguous statutes in light of the statute’s legislative

history.

156

As I discussed earlier, many have criticized the use of legislative

history on formal and functional grounds. As a formal matter, com-

mittee reports and floor statements are not the law enacted by Con-

gress. And as a functional matter, committee reports and floor state-

ments too often reflect an effort by a subgroup in Congress — or,

worse, outside of it — to affect how the statute will subsequently be

interpreted and implemented, in ways that Congress and the President

may not have intended. Moreover, legislative history is often conflict-

ing because of different floor statements, reports, and the like. From

the courts’ perspective, using legislative history can therefore be like

“looking over a crowd and picking out your friends.”

157

I find yet another major problem with legislative history: the clari-

ty versus ambiguity trigger for resorting to legislative history means

that the decision whether to resort to legislative history is often inde-

terminate. The indeterminacy of the trigger greatly exacerbates the

problems with the use of legislative history. As a judge, if all you need

to “pick out your friends” — that is, to pick out the result that you find

most reasonable — is a finding of ambiguity, and if there is no set or

principled way to determine clarity versus ambiguity, then some

judges are going to be more likely to find ambiguity in certain cases.

That’s pretty obvious as a matter of both common sense and human

psychology. If judges are given a gray area with no guideposts about

how to decide in that gray area (how to decide clarity versus ambigui-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

155

For an exploration of this argument, see Joseph Fishkin, Sever Everything but the Exhorta-

tion, B

ALKINIZATION

(Apr. 1, 2012, 4:33 AM), h t t p : / / b a l k i n . b l o g s p o t . c o m / 2 0 1 2 / 0 4 / s e v e r

-everything-but-exhortation.html [http://perma.cc/2QLW-QHFG].

156

See supra section I.D, pp. 2127–29. Of course, some textualists follow Justice Scalia’s ex-

ample and do not accept legislative history even when interpreting ambiguous statutes.

157

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (quoting Patricia M.

Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68

OWA

L. R

. 195, 214 (1983), in turn borrowing Judge Leventhal’s “memorable phrase”).

2150 HARVARD LAW REVIEW [Vol. 129:2118

ty), we should expect that they will end up with what they deem the

most reasonable policy outcome.

In a world without initial determinations of ambiguity, judges

would instead decide on the best reading of the statute.

158

In that

world, legislative history would be largely limited to helping answer

the question of whether the literal reading of the statute produces an

absurdity, as discussed below.

159

Most importantly, in that world we

would not make statutory interpretation depend so heavily on the dif-

ficult assessment of whether the text is clear or ambiguous.

3. Chevron Deference. — Under Chevron, courts uphold an agen-

cy’s reading of a statute — even if not the best reading — so long as

the statute is ambiguous and the agency’s reading is at least reason-

able.

160

This statutory interpretation principle is probably the one I

encounter most as a judge on the D.C. Circuit.

Chevron has been criticized for many reasons. To begin with, it

has no basis in the Administrative Procedure Act.

161

So Chevron itself

is an atextual invention by courts. In many ways, Chevron is nothing

more than a judicially orchestrated shift of power from Congress

to the Executive Branch. Moreover, the question of when to apply

Chevron has become its own separate difficulty, as exemplified in cases

such as Mead,

162

City of Arlington,

163

and King v. Burwell.

164

In that regard, it is important to understand how Chevron affects

the Executive Branch. From my more than five years of experience at

the White House, I can confidently say that Chevron encourages the

Executive Branch (whichever party controls it) to be extremely aggres-

sive in seeking to squeeze its policy goals into ill-fitting statutory au-

thorizations and restraints. My colleague Judge Tatel has lamented

that agencies in both Republican and Democratic administrations too

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

158

Under the “best reading” inquiry, the question is only how the words would be read by an

ordinary user of the English language. That’s why textualists rely on dictionaries. Dictionaries

may not provide authoritative, binding interpretations of the language of a statute, but they do

tell courts something about how the ordinary user of the English language might understand that

statutory language. In contrast, legislative history explains only what some Members of Congress

intended to say, as opposed to what they actually said in the statutory text.

159

There may be other uses of legislative history that might not depend on an initial finding of

ambiguity, such as providing evidence of the ordinary usage of a term, or showing the problem

Congress was attempting to address. Even if there are other uses, we should try to sideline the

threshold clarity versus ambiguity determination to the extent we can.

160

See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–44 (1984).

161

Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5

U.S.C.). In fact, if anything, Chevron seems to flout the language of the Act. The Act makes

clear that “the reviewing court” — not the agency — “shall decide all relevant questions of law,

interpret constitutional and statutory provisions, and determine the meaning or applicability of

the terms of an agency action.” 5 U.S.C. § 706 (2012).

162

United States v. Mead Corp., 533 U.S. 218, 226–27 (2001).

163

City of Arlington v. FCC, 133 S. Ct. 1863, 1866 (2013).

164

135 S. Ct. 2480, 2488–89 (2015).

2016] FIXING STATUTORY INTERPRETATION 2151

often pursue policy at the expense of law.

165

He makes a good point.

As I see it, however, that will always happen because Presidents run

for office on policy agendas and it is often difficult to get those agen-

das through Congress. So it is no surprise that Presidents and agencies

often will do whatever they can within existing statutes. And with

Chevron in the mix, that inherent aggressiveness is amped up signifi-

cantly. I think some academics fail to fully grasp the reality of how

this works. We must recognize how much Chevron invites an extreme-

ly aggressive executive branch philosophy of pushing the legal enve-

lope (a philosophy that, I should note, seems present in the administra-

tions of both political parties). After all, an executive branch

decisionmaker might theorize, “If we can just convince a court that the

statutory provision is ambiguous, then our interpretation of the statute

should pass muster as reasonable. And we can achieve an important

policy goal if our interpretation of the statute is accepted. And isn’t

just about every statute ambiguous in some fashion or another? Let’s

go for it.” Executive branch agencies often think they can take a par-

ticular action unless it is clearly forbidden.

Stated simply, we should not unduly blame the executive branch

agencies for doing what our doctrine has encouraged them to do.

But when the Executive Branch chooses a weak (but defensible) in-

terpretation of a statute, and when the courts defer, we have a situa-

tion where every relevant actor may agree that the agency’s legal in-

terpretation is not the best, yet that interpretation carries the force of

law. Amazing.

Perhaps in response to all of these criticisms, the Supreme Court it-

self has been reining in Chevron in the last few years. In one of its

most significant recent pronouncements, King v. Burwell, the Court

said that Chevron does not apply in cases involving “question[s] of

deep ‘economic and political significance.’”

166

And Chevron does not

apply at all unless “Congress delegated authority to the agency gener-

ally to make rules carrying the force of law, and . . . the agency inter-

pretation claiming deference was promulgated in the exercise of

that authority.”

167

These cases suggest some serious concern at the

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

165

David S. Tatel, The Administrative Process and the Rule of Environmental Law, 34 H

ARV

NVTL

. L. R

. 1, 2 (2010) (“[I]n both Republican and Democratic administrations, I have too

often seen agencies failing to display the kind of careful and lawyerly attention one would expect

from those required to obey federal statutes and to follow principles of administrative law. In

such cases, it looks for all the world like agencies choose their policy first and then later seek to

defend its legality.”).

166

See King, 135 S. Ct. at 2489 (quoting Util. Air Regulatory Grp. v. EPA, 134 S Ct. 2427, 2444

(2014)).

167

Mead, 533 U.S. at 226–27.

2152 HARVARD LAW REVIEW [Vol. 129:2118

Supreme Court about the reach of Chevron.

168

And King v. Burwell in

particular raises two significant questions that the Supreme Court will

presumably have to confront soon: First, how major must the ques-

tions be for Chevron not to apply? Second, if Chevron is inappropriate

for cases involving major questions, why is it still appropriate for cases

involving less major but still important questions?

All of that said, Chevron makes a lot of sense in certain circum-

stances. It affords agencies discretion over how to exercise authority

delegated to them by Congress. For example, Congress might assign

an agency to issue rules to prevent companies from dumping “unrea-

sonable” levels of certain pollutants. In such a case, what rises to the

level of “unreasonable” is a policy decision. So courts should be leery

of second-guessing that decision. The theory is that Congress dele-

gates the decision to an executive branch agency that makes the policy

decision, and that the courts should stay out of it for the most part.

That all makes a great deal of sense and, in some ways, represents the

proper conjunction of the Chevron and State Farm doctrines.

169

But Chevron has not been limited to those kinds of cases.

170

It can

also apply whenever a statute is ambiguous. In a case where a statute

is deemed ambiguous, a court will defer to an agency’s authoritative

reading, at least so long as the agency’s reading is reasonable.

171

From the judge’s vantage point, the fundamental problem once

again is that different judges have wildly different conceptions of

whether a particular statute is clear or ambiguous. The key move

from step one (if clear) to step two (if ambiguous) of Chevron is not de-

terminate because it depends on the threshold clarity versus ambiguity

determination.

172

As Justice Scalia pointed out, that determination “is

the chink in Chevron’s armor — the ambiguity that prevents it from

being an absolutely clear guide to future judicial decisions.”

173

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

168

See also, e.g., Michigan v. EPA, 135 S. Ct. 2699, 2712 (2015) (Thomas, J., concurring) (rais-

ing “serious questions about the constitutionality of our broader practice of deferring to agency

interpretations of federal statutes” under Chevron); Perez v. Mortgage Bankers Ass’n, 135 S. Ct.

1199, 1211–12 (2015) (Scalia, J., concurring in the judgment) (stressing the conflict between

Chevron deference and the APA and raising the possibility of “uproot[ing]” Chevron, id. at 1212);

Christensen v. Harris County, 529 U.S. 576, 596–97 (2000) (Breyer, J., dissenting) (advocating for

application of Chevron on a case-by-case basis within the broader Skidmore framework).

169

Cf. Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 248 (D.C. Cir. 2008) (Kavanaugh,

J., concurring in part, concurring in the judgment in part, and dissenting in part).

170

See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).

171

Id.

172

See Slocum, supra note 88, at 794 (“Under Chevron, the concept of ambiguity is therefore

central to whether an agency’s interpretation of a statute that it administers will receive judicial

deference, but the determination of ambiguity by the judiciary is entirely standardless and discre-

tionary.”). Step one also suffers from reliance on legislative history to determine whether there is

an ambiguity in the first instance. See Chevron, 467 U.S. at 843 n.9, 851–53; supra section II.B.2,

pp. 2149–50.

173

See Scalia, supra note 40, at 520.

2016] FIXING STATUTORY INTERPRETATION 2153

I see that problem all the time in my many agency cases, and it has

significant practical consequences. In certain major Chevron cases,

different judges will reach different results even though they may ac-

tually agree on what is the best reading of the statutory text. I have

been involved in cases where that has happened.

Think about that for a moment. Consider, for example, a high-

profile case involving a major agency rule that rests on the agency’s

interpretation of a statute. Suppose the judges agree that the agency’s

reading of the statute is not the best. But one judge believes that the

statute is ambiguous, so that judge would nonetheless uphold the

agency’s interpretation even though it is not the best interpretation.

The other two judges say that the statute is sufficiently clear, so those

judges strike down the agency’s interpretation. That simple threshold

determination of clarity versus ambiguity may affect billions of dollars,

the individual rights of millions of citizens, and the fate of clean air

rules, securities regulations, labor laws, or the like. And yet there is no

particularly principled guide for making that clarity versus ambiguity

decision, and no good way for judges to find neutral principles on

which to debate and decide that question.

174

This state of affairs is unsettling. As I stated above, my goal is to

help make statutory interpretation a more neutral, impartial process

where like cases are treated alike by judges of all ideological stripes,

regardless of the issue and regardless of the identity of the parties in

the case. That objective is hard to achieve — at least in many

cases — if the threshold trigger for Chevron deference to the agency is

ambiguity.

175

What’s the solution?

To begin with, courts should still defer to agencies in cases involv-

ing statutes using broad and open-ended terms like “reasonable,” “ap-

propriate,” “feasible,” or “practicable.” In those cases, courts should

say that the agency may choose among reasonable options allowed by

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

174

See Slocum, supra note 88, at 795 (“Thus, the Chevron doctrine’s reliance on explicit ambi-

guity conclusions to determine whether an agency’s interpretation will receive deference has ele-

vated the importance of a concept that is subjective, discretionary, typically addressed through

conclusory statements, and, not surprisingly, a source of considerable disagreement among mem-

bers of the Court.”).

175

Indeed, it seems that courts have allowed this problem to arise in far more cases than the

Chevron Court itself intended. After all, footnote 9 of Chevron told us explicitly that we should

employ all the “traditional tools of statutory construction” to resolve any statutory ambiguity be-

fore we defer to an agency. Chevron, 467 U.S. at 843 n.9. Of course, when we employ those tools

of interpretation, we often resolve the ambiguity and thereby get an answer. So in those cases, we

would not have to defer to the agency at all. Therefore, if we took Chevron footnote 9 at face

value, fewer cases would get to Chevron step two in the first place.

2154 HARVARD LAW REVIEW [Vol. 129:2118

the text of the statute.

176

In those circumstances, courts should be

careful not to unduly second-guess the agency’s choice of regulation.

177

Courts should defer to the agency, just as they do when conducting

deferential arbitrary and capricious review under the related reasoned

decisionmaking principle of State Farm.

178

This very important prin-

ciple sometimes gets lost: a judge can engage in appropriately rigorous

scrutiny of an agency’s statutory interpretation and simultaneously be

very deferential to an agency’s policy choices within the discretion

granted to it by the statute.

179

But in cases where an agency is instead interpreting a specific stat-

utory term or phrase, courts should determine whether the agency’s in-

terpretation is the best reading of the statutory text. Judges are

trained to do that, and it can be done in a neutral and impartial man-

ner in most cases.

In short, the problem with certain applications of Chevron, as I see

it, is that the doctrine is so indeterminate — and thus can be antithet-

ical to the neutral, impartial rule of law — because of the initial clarity

versus ambiguity decision. Here too, we need to consider eliminating

that inquiry as the threshold trigger.

4. Some Ambiguity-Dependent Principles of Interpretation Should

Be Applied as Plain Statement Rules. — The clarity versus ambiguity

issue also arises with several substantive canons of interpretation that

are now framed as presumptions. For example, we presume that stat-

utes do not apply extraterritorially.

180

We presume that statutes do not

effectuate implied repeals of other statutes.

181

We presume that stat-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

176

See Silberman, supra note 96, at 825 (“Finding a specific congressional intent is particularly

unlikely if the agency is applying statutory language that calls for an administrative judgment,

such as what is ‘feasible’ or ‘probable.’”).

177

Excessive delegation may be another problem (at least for some) in these examples. But

that issue is beyond the scope of this Book Review.

178

See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see

also Am. Radio Relay League, Inc. v. FCC, 524 F. 3d 227, 248 (D.C. Cir. 2008) (Kavanaugh, J.,

concurring in part, concurring in the judgment in part, and dissenting in part) (“Application of the

beefed-up arbitrary-and-capricious test is inevitably if not inherently unpredictable — so much so

that, on occasion, the courts’ arbitrary-and-capricious review itself appears arbitrary and capri-

cious.”).

179

Of course, agencies must still make reasonable choices. See, e.g., Michigan v. EPA, 135 S.

Ct. 2699 (2015) (holding that EPA interpreted the Clean Air Act unreasonably when it deemed

cost irrelevant to the decision to regulate power plants).

180

Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 255 (2010) (“‘[U]nless there is the affirma-

tive intention of the Congress clearly expressed’ to give a statute extraterritorial effect, ‘we must

presume it is primarily concerned with domestic conditions.’” (quoting EEOC v. Arabian Am. Oil

Co., 499 U.S. 244, 248 (1991))); Arabian Am. Oil Co., 499 U.S. at 248 (“It is a longstanding princi-

ple of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to

apply only within the territorial jurisdiction of the United States.’” (quoting Foley Bros. v.

Filardo, 336 U.S. 281, 285 (1949))); see also S

CALIA

& G

ARNER

, supra note 7, at 268–72.

181

J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 142 (2001) (“The rarity

with which [the Court has] discovered implied repeals is due to the relatively stringent standard

2016] FIXING STATUTORY INTERPRETATION 2155

utes do not eliminate mens rea requirements.

182

And we presume that

statutes do not apply retroactively.

183

Some of these presumptions implicitly rest on an initial finding of

ambiguity. In essence, if the statutory text is ambiguous, then courts

should interpret the statute not to apply extraterritorially, not to effec-

tuate an implied repeal, not to eliminate a mens rea requirement, or

not to apply retroactively, for example.

Other presumptions are framed as plain statement rules that apply

even when a statute is otherwise clear.

184

For example, we will pre-

sume that a statute does not directly alter the federal-state balance un-

less Congress expressly states as much.

185

Whereas ambiguity-dependent presumptions can be overcome by

clear text, presumptions framed as plain statement rules require some-

thing more: they demand language directly stating Congress’s intent to

wade into the area encompassed by the plain statement rule.

186

As a

result, plain statement rules do not turn on a finding of clarity versus

ambiguity; rather, they turn on whether the statute includes an express

statement overcoming the default rule against a certain reading.

With the ambiguity-dependent presumptions, it is again problemat-

ic to let the clarity versus ambiguity determination resolve the fate of a

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

for such findings, namely, that there be an irreconcilable conflict between the two federal statutes

at issue.” (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 381

(1996))); see also S

CALIA

& G

ARNER

, supra note 7, at 327–33.

182

Staples v. United States, 511 U.S. 600, 606 (1994) (“[W]e have stated that offenses that re-

quire no mens rea generally are disfavored, and have suggested that some indication of con-

gressional intent, express or implied, is required to dispense with mens rea as an element of a

crime.” (citation omitted)).

183

U.S. Fid. & Guar. Co. v. United States ex rel. Struthers Wells Co., 209 U.S. 306, 314 (1908)

(“The presumption is very strong that a statute was not meant to act retrospectively, and it ought

never to receive such a construction if it is susceptible of any other. It ought not to receive such a

construction unless the words used are so clear, strong and imperative that no other meaning can

be annexed to them or unless the intention of the legislature cannot be otherwise satisfied.”); see

also S

CALIA

& G

ARNER

, supra note 7, at 261–65.

184

See John F. Manning, Essay, Clear Statement Rules and the Constitution, 110 C

OLUM

. L.

. 399, 406–07 (2010) (defining clear statement rules as rules insisting “that Congress speak

with unusual clarity when it wishes to effect a result that, although constitutional, would disturb

a constitutionally inspired value,” id. at 407). Plain statement rules are also sometimes known as

clear statement rules.

185

See Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (“[I]f Congress intends to alter the ‘usual

constitutional balance between the States and the Federal Government,’ it must make its inten-

tion to do so ‘unmistakably clear in the language of the statute.’” (alteration in original) (quoting

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989))).

186

See William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear State-

ment Rules as Constitutional Lawmaking, 45 V

AND

. L. R

. 593, 611–12 (1992) (noting that the

Court’s “super-strong clear statement rules” relating to federalism “can be rebutted only through”

text that is both “unambiguous” and “targeted at the specific problem,” id. at 612). For a good

overview of some prominent plain statement rules, see Thomas W. Merrill, Rescuing Federalism

After Raich: The Case for Clear Statement Rules, 9 L

EWIS

& C

LARK

L. R

. 823, 825 (2005); see

also Manning, supra note 184, at 406–17.

2156 HARVARD LAW REVIEW [Vol. 129:2118

case. But what’s the solution here? Some of the presumptions are al-

ready fashioned as plain statement rules. In my view, the solution to

the clarity versus ambiguity conundrum in this context is either to ap-

ply the presumption in question as a plain statement rule, or to elimi-

nate it entirely. In other words, if some constitutional or quasi-

constitutional value is sufficiently important that we will presume that

Congress did not mean to abrogate that value, then we should require

Congress to speak directly to that issue in order to overcome it —

whether it be extraterritorial application, repeal of a prior statute,

mens rea, or retroactive application, among many others.

A separate problem is determining which constitutional or quasi-

constitutional values justify a presumption or plain statement rule.

That topic is hotly disputed but is beyond the scope of this Book

Review.

187

Putting aside transition questions,

188

this change would be easy to

accomplish and would lead to far more predictability in the applica-

tion of these presumptions in particular cases. It would also promote

the kind of mutual understanding between courts and Congress that

Chief Judge Katzmann rightly encourages. Indeed, the Supreme Court

has seemingly been moving toward a plain-statement-like understand-

ing of many of these presumptions already.

189

C. Off-Ramps from the Text: The “Mistake” and Absurdity Canons

What if a statute as written would produce an objectively absurd

outcome? Or what if a statute as written says something that we are

nearly certain that Congress did not mean — in other words, that the

statutory text reflects a mistake?

To start, it’s important to distinguish between the absurdity doc-

trine and the idea of a mistake.

The absurdity doctrine counsels that a statute should not be inter-

preted to produce an objectively absurd result.

190

At least in the ab-

stract, this is a sound principle, although the alleged absurdity must

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

187

For example, I am on record as rejecting the so-called Charming Betsy presumption. See

Al-Bihani v. Obama, 619 F.3d 1, 32–36 (D.C. Cir. 2010) (Kavanaugh, J., concurring in the denial

of rehearing en banc).

188

Perhaps courts could adopt this change only for statutes enacted after the date on which the

court announces the shift to a plain statement rule.

189

See, e.g., Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 278 (2010) (Stevens, J., concur-

ring in the judgment) (accusing the majority of seeking “to transform the presumption [against

extraterritoriality] from a flexible rule of thumb into something more like a clear statement rule”).

190

See Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202–03 (1819) (Marshall, C.J.) (“[I]f, in

any case, the plain meaning of a provision, not contradicted by any other provision in the same

instrument, is to be disregarded, because we believe the framers of that instrument could not in-

tend what they say, it must be one in which the absurdity and injustice of applying the provision

to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting

the application.”).

2016] FIXING STATUTORY INTERPRETATION 2157

surmount a high bar to be truly absurd.

191

After all, one person’s rea-

sonableness may be another person’s absurdity. Or one person may

think that an idea is bad but not absurd whereas another person

may think it absurd. Interestingly, in determining whether a statute

produces an absurd result, even Justice Scalia agreed that judges may

look to legislative history.

192

Why? Legislative history may defeat an

absurdity argument by demonstrating that some Members of Congress

actually meant to legislate the result that the judge otherwise may

think is absurd. And if Congress meant to legislate the result, that re-

sult cannot be absurd.

The mistake notion is more uncertain. It rests on a communica-

tions phenomenon that all of us confront on a daily basis. Someone

might tell you, “you said X.” And you might reply, “that’s not what I

meant.” Or your child might say: “You asked me to do X, but I as-

sumed you meant Y, so I did Y.” These kinds of “mistakes” or diver-

gences between what someone says and what someone means happen

all the time. So too with Congress.

But is there a “mistake” principle in statutory interpretation? Do

courts have the power to correct Congress’s “mistakes”? The answer is

yes, but only up to a limited point — that limited point being drafting

errors, sometimes known as scrivener’s errors.

193

All agree that those

kinds of mistakes may be corrected by a court. Justice Scalia recently

described the doctrine in this way: “Only when it is patently obvious to

a reasonable reader that a drafting mistake has occurred may a court

correct the mistake.”

194

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

191

See John F. Manning, The Absurdity Doctrine, 116 H

ARV

. L. R

. 2387 (2003).

192

See S

CALIA

& G

ARNER

, supra note 7, at 388 (“[L]egislative history can be consulted to re-

fute attempted application of the absurdity doctrine — to establish that it is indeed thinkable that

a particular word or phrase should mean precisely what it says. For to establish thinkability (so

to speak), just as to establish linguistic usage, one does not have to make the implausible leap of

attributing the quoted statement to the entire legislature. It suffices that a single presumably ra-

tional legislator, or a single presumably rational committee, viewed the allegedly absurd result

with equanimity.”); see also Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527–28 (1989)

(Scalia, J., concurring in the judgment).

193

A scrivener’s error is “an obvious mistake in the transcription of the legislature’s policies

into words.” M

ANNING

& S

TEPHENSON

, supra note 88, at 93. It applies “where on the very

face of the statute it is clear to the reader that a mistake of expression (rather than of legislative

wisdom) has been made.” Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role

of United States Federal Courts in Interpreting the Constitution and Laws, in A

ATTER

NTERPRETATION

3, 20 (Amy Gutmann ed., 1997). The scrivener’s error doctrine is used to cor-

rect spelling errors, wrongly numbered cross-references, and the like rather than to rewrite sub-

stantive law because it fails to align with perceived congressional intent. See M

ANNING

TEPHENSON

, supra note 88, at 93–101.

194

King v. Burwell, 135 S. Ct. 2480, 2504–05 (2015) (Scalia, J., dissenting); see also id. at 2505

(describing the doctrine as applying to “misprint[s],” “slip[s] of the pen,” and “technical mistake[s]

in transcribing” a statute rather than “substantive mistake[s] in designing . . . the law”).

2158 HARVARD LAW REVIEW [Vol. 129:2118

But beyond technical drafting mistakes, there appears to be no

broader mistake canon, where the courts can conclude that Congress

did not mean to say what it said. That’s what Holy Trinity allowed

but what the Supreme Court now rejects.

195

So what happens then when courts confront statutory text that is

not what they think Congress meant to say but where the mistake is

not akin to a drafting error? One answer — the answer that appears

to correspond to current doctrine — is that courts may merely identify

the apparent mistake, and then it is up to Congress to correct it. After

all, Congress routinely passes technical corrections bills after it passes

any major legislation.

196

Of course, this discussion brings us right to King v. Burwell, one of

the most interesting statutory interpretation cases in recent years. The

question presented was whether tax credits available to people who

purchased health insurance on exchanges “established by the State” al-

so were available to those who purchased insurance on exchanges es-

tablished by the Federal Government, even though the statute did not

say as much.

197

Some said that the Members of Congress who voted

for the bill meant (or would have meant, had they noticed it) to include

federally established exchanges in the relevant provision. Under this

theory, in other words, Congress did not say in the statute what at

least those who voted for and signed the Patient Protection and

Affordable Care Act

198

likely meant to say.

199

But in resolving the

case, the Supreme Court decided against explicitly using a kind of mis-

take canon — perhaps because doing so would resurrect a form of the

now-disfavored Holy Trinity doctrine.

But the Court nonetheless ruled for the Government and seemed

implicitly to employ a mistake canon. The Court reasoned: “Congress

passed the Affordable Care Act to improve health insurance markets,

not to destroy them. If at all possible, we must interpret the Act in a

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

195

See supra note 34 and accompanying text. Of course, the idea of “congressional intent” is

inherently problematic to begin with. See generally Manning, supra note 154.

196

See, e.g., New Mexico Navajo Water Settlement Technical Corrections Act, Pub. L. No.

114-57, 129 Stat. 528 (2015) (making technical corrections to the Navajo water rights settlement in

New Mexico); Office of Compliance Administrative and Technical Corrections Act of 2015, Pub.

L. No. 114-6, 129 Stat. 81 (making administrative and technical corrections to the Congressional

Accountability Act of 1995); Immigration and Nationality Technical Corrections Act of 1994, Pub.

L. No. 103-416, 108 Stat. 4305 (making technical corrections to the Immigration and Nationality

Act).

197

King, 135 S. Ct. at 2487.

198

Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 26

and 42 U.S.C.).

199

For an account of “where the four words at issue came from,” see Abbe R. Gluck, The

Supreme Court, 2014 Term — Comment: Imperfect Statutes, Imperfect Courts: Understanding

Congress’s Plan in the Era of Unorthodox Lawmaking, 129 H

ARV

. L. R

. 62, 76–79 (2015).

2016] FIXING STATUTORY INTERPRETATION 2159

way that is consistent with the former, and avoids the latter.”

200

The

Court appeared to suggest that the overall plan and context of the law

showed that the words in question did not mean what they said. The

Court stated: “But when read in context, ‘with a view to [its] place in

the overall statutory scheme,’ the meaning of the phrase ‘established

by the State’ is not so clear.”

201

The Court used the term “ambiguous”

to describe the law, but I think the Court was describing more of a

mistake rather than ambiguity in any traditional sense.

It’s not my place here to say whether King v. Burwell was right or

wrong in its outcome. That’s not relevant for present purposes and

beyond the scope of this Book Review. But I think the question of

whether it was right or wrong depends on what one thinks about a

mistake canon — that is, a narrower form of Holy Trinity — that does

not allow resort to legislative history but does allow courts to look at

the overall Act and adopt what they conclude Congress meant rather

than what Congress said.

202

In the wake of King, a separate issue going forward for statutory

interpretation and an issue more central to my focus in this Book Re-

view is that the King v. Burwell Court’s calling the “established by the

State” language ambiguous — rather than directly addressing the ap-

propriate role of the Court in dealing with Congress’s apparent mis-

takes — may have broader repercussions. As I have explained, many

canons depend on a finding of clarity versus ambiguity. That thresh-

old inquiry is already indeterminate. Because the phrase “established

by the State” was deemed ambiguous, one can imagine that some

judges may find fewer statutes “clear” because the statutory language

in question is no less ambiguous than the phrase “established by the

State” was in King. We will see.

III.

EVISING

THE

ROBLEMATIC

EMANTIC

ANONS

There is another set of canons of interpretation that judges apply

when interpreting statutes. These are known as semantic canons.

These canons help judges determine the best reading of the statutory

text.

Semantic canons are generally designed to reflect the meaning that

people, including Members of Congress, ordinarily intend to communi-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

200

King, 135 S. Ct. at 2496.

201

Id. at 2490 (alteration in original) (first quoting FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 133 (2000), then quoting 26 U.S.C. §§ 36B(b)–(c) (2012)).

202

Cf. id. at 2504–05 (Scalia, J., dissenting) (“Only when it is patently obvious to a reasonable

reader that a drafting mistake has occurred may a court correct the mistake. . . . [T]he Court does

not pretend that there is any such indication of a drafting error on the face of [the statute].”); Re,

supra note 34, at 413–15.

2160 HARVARD LAW REVIEW [Vol. 129:2118

cate with their choice of words.

203

But some semantic canons do not

accomplish this mission very well, and some require judges to make

difficult policy judgments that they are ill-equipped to make. It seems

to me that we ought to shed semantic canons that fall into these cate-

gories. There is much to be written on this topic, but to keep this

Book Review from turning (even more) into a book of its own, I will

sketch out just a few preliminary thoughts.

A. The Ejusdem Generis Canon

The ejusdem generis canon tells us to interpret a general term at

the end of a series of specific terms to be of like character as the specif-

ic terms.

204

So when a statute says “no dogs, cats, or other animals al-

lowed in the park,” we are told that we should read “other animals” to

mean “other animals like dogs and cats.”

That does not make a whole lot of sense to me. Why not read

“other animals” to mean “other animals”? It seems to me that we have

to be wary of adding implicit limitations to statutes that the statutes’

drafters did not see fit to add.

205

If legislators want to keep out ani-

mals like dogs and cats, then they should enact a statute that states

“no dogs, cats, or other similar animals allowed in the park.” That’s

easy enough going forward, at least putting aside the not-so-easy ques-

tion of transition rules in how we are to interpret statutes passed be-

fore any shift in interpretive methods.

206

The more fundamental problem with ejusdem generis, for present

purposes, is that it requires judges to come up with their own sense of

the connective tissue that binds the terms in the statute.

207

Judges

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

203

See M

ANNING

& S

TEPHENSON

, supra note 88, at 202 (“Some of these canons are ‘seman-

tic’ (or ‘linguistic’ or ‘syntactic’): They are generalizations about how the English language is

conventionally used and understood, which judges may use to ‘decode’ statutory terms. The use

of semantic canons can therefore be understood simply as a form of textual analysis.”); cf. Kagan,

supra note 1, at 35:42 (“I think of [semantic canons] usually as guides to reading language sensibly

. . . Rather than go and memorize fifty canons, it’s helpful to have an intuitive feel for how lan-

guage works and how the people who write things think that language works. And the canons

are often just ways of formalizing those intuitions, those correct intuitions, about how people use

language.”).

204

See S

CALIA

& G

ARNER

, supra note 7, at 199 (“Where general words follow an enumeration

of two or more things, they apply only to persons or things of the same general kind or class spe-

cifically mentioned (ejusdem generis).”).

205

Cf. id. (explaining how the “principle of ejusdem generis . . . implies the addition of similar

after the word other”).

206

Critics have attacked the ejusdem generis canon from many different perspectives. See, e.g.,

DWARD

EAL

, C

ARDINAL

ULES

EGAL

NTERPRETATION

65–66 (A.E. Randall ed., 3d

ed. 1924); R

EED

ICKERSON

, T

NTERPRETATION

AND

PPLICATION

TATUTES

233–

34 (1975); Llewellyn, supra note 5, at 405.

207

Cf. S

CALIA

& G

ARNER

, supra note 7, at 207 (“What sets ejusdem generis apart from the

other canons — and makes it unpopular with many commentators — is its indeterminacy. The

doctrine does not specify that the court must identify the genus that is at the lowest possible level

2016] FIXING STATUTORY INTERPRETATION 2161

must first determine what characteristic makes “dogs” and “cats” simi-

lar, and then apply that characteristic as an implied limitation on “oth-

er animals.” This is a very indeterminate task for judges. Justice

Kagan highlighted this problem in her brilliant dissent in Yates v.

United States,

208

a case involving an obstruction of justice statute

where the majority relied on the ejusdem generis canon.

209

As she

noted in that case: “[Ejusdem generis] require[s] identifying a common

trait that links all the words in a statutory phrase.”

210

Commenting on

the case, she explained:

The canon says you need a common denominator. But what is that com-

mon denominator? Is the common denominator things that preserve in-

formation? Or in the context of an evidence tampering statute, is the

common denominator things that provide information to an investigator,

things that tell an investigator, say something to an investigator about

what the crime is?

211

Justice Kagan illustrates well the problem with the canon. Judges

should not be in the position of trying to devise the connective tissue

or common denominator. I would consider tossing the ejusdem generis

canon into the pile of fancy-sounding canons that warrant little weight

in modern statutory interpretation.

B. The Anti-redundancy Canon

Judges say that we should not interpret statutes to be redundant.

212

But humans speak redundantly all the time, and it turns out that Con-

gress may do so as well.

213

Congress might do so inadvertently. Or

Congress might do so intentionally in order to, in Shakespeare’s words,

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

of generality. The court has broad latitude in determining how much or how little is embraced by

the general term.”).

208

135 S. Ct. 1074 (2015).

209

See id. at 1086–87.

210

Id. at 1097 (Kagan, J., dissenting).

211

Kagan, supra note 1, at 46:17.

212

See S

CALIA

& G

ARNER

, supra note 7, at 174 (“If possible, every word and every provision

is to be given effect (verba cum effectu sunt accipienda). None should be ignored. None should

needlessly be given an interpretation that causes it to duplicate another provision or to have no

consequence.”); see also id. at 174–79.

213

See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside —

An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 S

TAN

. L.

. 901, 933–36 (2013). Despite supporting the canon, Justice Scalia and Professor Garner ad-

mit this commonsensical point. They write that the canon “cannot always be dispositive because

(as with most canons) the underlying proposition is not invariably true. Sometimes drafters do

repeat themselves and do include words that add nothing of substance, either out of a flawed

sense of style or to engage in the ill-conceived but lamentably common belt-and-suspenders ap-

proach.” S

CALIA

& G

ARNER

, supra note 7, at 176–77.

2162 HARVARD LAW REVIEW [Vol. 129:2118

make “double sure.”

214

Either way, statutes often have redundancies,

whether unintended or intended.

The anti-redundancy canon nonetheless tells us to bend the statute

to avoid redundancies, at least to the extent we reasonably can. But if

one statute says “No dogs in the park” and another one says “No ani-

mals in the park,” I believe we should generally assume that the draft-

er wanted no animals in the park and really wanted to make sure that

there were no dogs in the park. The anti-redundancy canon instead

would have judges try to find some meaning of “animals” that excludes

dogs and thereby avoids the redundancy. Such an exercise is little

more than policymaking and, in my view, often quite wrongheaded.

We need to be much more cautious when invoking the anti-

redundancy canon. Our North Star should always be determining the

best reading of the actual words of the statute.

C. The Consistent Usage Canon

Third, and relatedly, judges are told to presume that Congress uses

terms consistently: where Congress uses the same term twice, it should

be interpreted to mean the same thing, and where Congress uses dif-

ferent terms, they should be interpreted to mean different things.

215

Superficially, that presumption seems commonsensical, and in the

right context it is well advised. But in certain cases, judges turn this

commonsense observation about human language into an ironclad

rule. Those judges will never allow the same word to mean different

things in different places in a statute, no matter how much the context

suggests otherwise. Of course, that rigidity is inappropriate — in doc-

uments as complex and sprawling as statutes, oftentimes authors will

use the same term to mean different things in different places.

Similarly, if two different terms are normally synonyms, requiring

them to be interpreted differently makes little sense. For example,

sometimes people say “street” and sometimes they say “road,” as in “he

lives down the street, but she lives at the other end of the road.”

Those different words were not intended to communicate any different

meaning. For that reason, I would caution against unnaturally read-

ing synonyms to have different meanings. When judges hew too close-

ly to this presumption, they may ditch the best reading of a statute and

instead improperly invent one of their own.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

214

ILLIAM

HAKESPEARE

, M

ACBETH

act 4, sc. 1, l. 105 (Stephen Orgel ed., Penguin

Books 2000) (1623).

215

See S

CALIA

& G

ARNER

, supra note 7, at 170 (“A word or phrase is presumed to bear the

same meaning throughout a text; a material variation in terms suggests a variation in meaning.”).

2016] FIXING STATUTORY INTERPRETATION 2163

ONCLUSION

Suppose that courts decided to try the suggestions made in this

Book Review. Where would that leave us? Likely with the following

two-step approach:

First, find the best reading of the statute by interpreting the words

of the statute, taking account of the context of the whole statute, and

applying any appropriate semantic canons.

Second, apply any applicable plain statement rules, and ensure that

the interpretation is not absurd.

Would this two-step process lead every set of judges to reach the

same answer in every case? Of course not. But I believe it would

produce a more stable and predictable body of statutory jurisprudence

than we have now. It would sideline the clarity versus ambiguity de-

termination that is so critical now, but also so indeterminate. This

new approach would enhance the rule of law and the appearance of

neutral, evenhanded justice.

Regardless of whether you go down that road and whatever your

views on statutory interpretation, please read Chief Judge Katzmann’s

book Judging Statutes. And after reading it, do not stop thinking. In-

stead, use it as a springboard to start reflecting more deeply on the

state of statutory interpretation. In my view, we have made enormous

progress, thanks largely to Justice Scalia. But as he himself explained

so well, the current state of affairs is still not always a pretty picture. I

have sketched out some thoughts here to provoke discussion. Some of

these may be good ideas; others may be not as good. I am not wedded

to any of them at this point. But I am confident that we can do better

in interpreting statutes. Prompted by Justice Scalia’s brilliant life and

career, and by Chief Judge Katzmann’s excellent book, we should all

strive to do better. That much is clear.