376
Opinion of the Court
Each sentence of this explanation is nonsense, and the two sentences together are not even compatibly nonsensical. "Preponderance of the evidence" and "clear and convincing evidence" describe well known, contrasting standards of proof. To say, as the first sentence does, that a preponderance standard demands "clear and convincing manifestations, taken as a whole" is to convert that standard into a higher one; and to say, as the second sentence does, that whatever is not "speculative, conjectural, and vague" meets the "clear, cogent, and convincing" standard is to reconvert that standard into a lower one. And the offsetting errors do not produce rationality but compounded confusion. If the Board's application of the preponderance standard is indeed accurately described by this passage, it is hard for the ALJ to know what to do with the next case.
A case like Laidlaw, or a series of cases that exemplify in practice its divorcing of the rule announced from the rule applied, also frustrates judicial review. If revision of the Board's standard of proof can be achieved thus subtly and obliquely, it becomes a much more complicated enterprise for a court of appeals to determine whether substantial evidence supports the conclusion that the required standard has or has not been met. It also becomes difficult for this Court to know, when certiorari is sought, whether the case involves the generally applicable issue of the Board's adoption of an unusually high standard of proof, or rather just the issue of an allegedly mistaken evidentiary judgment in the particular case. An agency should not be able to impede judicial review, and indeed even political oversight, by disguising its policymaking as factfinding.
Because reasoned decisionmaking demands it, and because the systemic consequences of any other approach are unacceptable, the Board must be required to apply in fact the clearly understood legal standards that it enunciates in principle, such as good-faith reasonable doubt and preponderance of the evidence. Reviewing courts are entitled to
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