Articles

NEGATIVE ORIGINALISM
Jamie G. McWilliam

Originalism has been criticized for failing to provide a determinate meaning in every instance of interpretation. To these commentators, originalism is at best a flawed methodology in which diverging historical sources are inconsistently applied by judges and scholars who cannot even agree at what level of generality the original meaning should be viewed. Some even go so far as to argue that original meaning is, at worst, “illusory,” and “allows originalism to be turned into, in effect, a form of progressive and very much living constitutionalism.” In other words, they say originalism, which was spawned as a cogent theory to counter the Warren Court’s flexible use of the Constitution, is a fraud.

There are a few issues that scholars have raised with originalism, but in the end, each is a critique of originalism’s alleged failure to provide a noncontroversial outcome in every case. The first issue is that judges are generally not historians, and their use of history may be ill informed. Even when a historical analysis is well-performed, a lack of relevant data and historical disagreement over meaning make finding a concrete solution difficult. Where a source provides an answer, deciding to attribute one historical author’s view to the entire body that drafted the legal text raises additional concerns. At the end of this line of inquiry is the question of whether a unique original meaning can be ascertained from the evidence, or even whether such a meaning existed in the first place. If not, is originalism a failed method of interpretation?

This Commentary argues that these critiques miss the primary strength of originalism in practice: even where an originalist analysis fails to provide a determinate interpretation, it typically will further determine an underdetermined text. In other words, it will tell us what the legal text does not mean.

WHO MAY RECEIVE CHEVRON DEFERENCE—THE RESPONSIBLE AGENCY SECRETARY, THE U.S. ATTORNEY GENERAL, OR NO ONE?
Paul J. Larkin

Over the last few terms, the Supreme Court has clearly avoided relying on Chevron in what should have been classic cases for its application: ones where a statute had an uncertain meaning, and the agency responsible for implementing it had a clear understanding what the law meant. Moreover, the Court has demanded that agencies identify statutory authority that clearly authorizes its actions. An injunction to “do the right thing” is insufficient. Toward the end of the October Term 2022, the Court granted review in a case—Loper Bright Enterprises v. Raimondo—that allows the Court to overturn Chevron should it choose to do so. We should learn its fate during the Court’s upcoming term.

This Commentary explains why it is time to “retire” or reformulate the Chevron deference standard. To get there, Part II argues that there are statutes other than the APA that are relevant to this issue. Congress has granted the U.S. Attorney General the authority to decide what legal position the United States will advance in litigation, and that includes deciding what statutory interpretation best advances the federal government’s interests. Accordingly, the relevant positive law vests the Attorney General, not the secretary of the responsible agency, with the authority to identify the federal government’s legal position. Part III then explains that, under both the rationale of Chevron and the Court’s post-Chevron precedents, the Attorney General is not entitled to any deference for its interpretation of the law. Finally, Part IV submits that, under a revised interpretation of Chevron, an agency should receive respect for its judgment about how best to implement a statute, but only the same respect that a court would afford a scholar for his or her understanding of the optimal answer to a legal question. That much, but no more. In law school, the justices might have been taught the law of contracts by a sensei like Samuel Williston or Arthur Corbin, and they are entitled to treat the teachings of their hanchis with all the respect they have earned. But it remains a justice’s responsibility to resolve all legal issues de novo because that obligation comes with a black robe.