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29 posts from February 2023


Sherif Girgis: Living Traditionalism
Michael Ramsey

Sherif Girgis (Notre Dame Law School) has posted Living Traditionalism (59 pages) on SSRN.  Here is the abstract:

Today’s Supreme Court is committed to originalism—the idea that constitutional law is fixed at ratification. But it often rests decisions on the post-ratification practices of other actors—Presidents, Congresses, or states. Call this method “living traditionalism”: “traditionalist” because it looks to political traditions, and “living” because the traditions postdate ratification. The method is ubiquitous but undertheorized, in part because its distinctness from “liquidation”—a variant of traditionalism that is consistent with originalism, but that rarely drives any cases—has not been understood.

This Article offers the first comprehensive analysis of the Court’s living traditionalism, which turns out to include scores of cases spanning every subject and Justices of every stripe. Next, the Article identifies a fundamental but previously unrecognized tension in the method itself: If the Court gives living-traditionalist cases full weight as precedent, it defeats the reasons for using the method at all. Put another way, it is incoherent to treat political practices as a ratchet: capable of moving law in one direction (e.g., against a right in 2022) but not the other (for the right later on). Yet today’s Court is at risk of doing that, making constitutional law turn on accidents of history: whatever practices happened to exist when the Court first addressed an issue. Finally, the Article proposes solutions to this predicament. Where the Court does not simply retreat from living traditionalism, it should write living-traditionalist rulings so that they expire when practices change, or else modify stare decisis to make these cases easier to overturn. And political actors for their part can change traditions—including by resisting Court precedents encasing old traditions—through “soft” and “hard” law options that caselaw invests with constitutional significance. Politics could thus shape sundry individual-rights and separation-of-powers doctrines. Absent such reforms, the Court’s application of living traditionalism will prove increasingly at odds with any plausible rationale for using the method at all.

Via Larry Solum at Legal Theory Blog, who says: "Timely and important.  Highly recommended.  Download it while it's hot!"

There was an element of this sort of traditionalism in Justice Scalia's approach (see here, Part I.C.), which undertheorized as the articles says -- in particular it was never entirely clear whether Scalia used it as a way to establish original meaning or as a supplement.


Mike Pence Does Not Have Legislative Immunity [Updated]
Michael Ramsey

Some commentators (such as Eric Segall) say originalism can't resolve modern contested issues.  I say it resolves this one:

The House Committee investigating the January 6, 2021, events issued a subpoena to former Vice President Mike Pence relating to his actions then (when he was Vice President).  Pence is resisting the subpoena under the Constitution's speech or debate clause, which gives immunity for certain legislative actions.  Glenn Reynolds, Jonathan Adler, and Josh Blackman have thoughts (as does Mike Luttig, behind the New York Times paywall, but his thoughts are discussed by the others).

The speech or debate clause (Art. I, Sec. 6) provides:

The Senators and Representatives ... shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses ... ; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

On its face, this clause applies only to Senators or Representatives.  Pence is not a Senator or Representative. I'm not aware of any founding-era sources suggesting that legislative immunity extended to anyone other than Senators and Representatives, and particularly not anything suggesting it extended to the Vice President.

I agree with Professor Reynolds (making the case on his interesting new substack that Pence has a plausible claim) that (a) the Vice President serves some legislative functions, and (b) the Supreme Court has sometimes adopted a functional approach to the speech or debate clause, as in Gravel v. United States (1972), when the Court extended the immunity to a legislative aide.  But in an originalist analysis neither of these points matter.  The text provides immunity specifically to Senators and Representatives, not generally to people exercising legislative functions.  The framers could have written that "no one carrying out a legislative function in either House shall be questioned..." or "neither Senators, Representatives nor the Vice President shall be questioned ..."   They didn't.  As to the Court's functional analysis, that's how we lost our way in the first place.  Yes, the limitation to Senators and Representatives is formalistic, but as Justice Scalia wrote (in A Matter of Interpretation): "of course it's formalistic! The rule of law is about form.  ... It is what makes a government a government of laws and not of men."

Some may say that my analysis is really textualism, not originalism.  There's something to this point, but not much.  The touchstone of most modern originalism, going back to Justice Scalia, is the original meaning of the text.  If the text is clear and uses language accessible to modern ears, that is the end of the matter, at least when enactment-era context doesn't supply a strong reason to think otherwise.  Here there's no enactment-era context raising doubts about the evident meaning of the text, so the text's natural meaning controls.  That's how text-based originalism works.

To nonoriginalism, in contrast, the text is just one piece of evidence.  Other considerations come into play as well, including perhaps more abstract constitutional values and practicalities such as the need to protect people serving legislative functions.  That's why Professor Reynolds is right that under modern approaches Pence's argument is at least somewhat plausible.  But as a matter of original meaning, it isn't.

UPDATE:  From a further post by Jonathan Adler at Volokh Conspiracy, Michael McConnell has a similar view to mine as to Pence's (non)immunity, and Professor Adler seems to be coming around to it as well.


Eric Segall on Richard Fallon on Selective Originalism
Michael Ramsey

At Dorf on Law, Eric Segall: Professor Fallon on Selective Originalism and Precedent (commenting on this article).   Some excerpts:

One of Fallon's important contributions is a descriptive one. As he says, we "do not have an originalist Supreme Court, committed to deciding all or nearly all cases based on original constitutional meanings, but at most a selectively originalist one." Furthermore, Fallon argues that "selective originalism is dishonest and hypocritical and ought to be abandoned."

To support his claims, Fallon points to numerous areas of constitutional law where the Court's decisions are decidedly non-originalist. Readers of my book Originalism as Faith will recognize many but not all of these areas. But before I list those, here is the core of Fallon's descriptive claim:

Selective originalism is a practice of constitutional decision-making in which putatively originalist Justices of the Supreme Court sometimes ignore or subordinate their avowed originalist premises and instead base their decisions on prior judicial precedents without regard to whether those precedents are defensible on originalist grounds, are binding as a matter of stare decisis, or are reasonably left unexamined based on the principle that the Court should normally decide only those issues framed by the parties’ briefing.

Fallon points to the following constitutional law areas where the so-called originalist justices (including the late Justice Scalia) have not engaged in an originalist analysis to reach the results they advocate:

1) Standing

2) The Power of Congress to Create Non-Article III Courts

3) Freedom of Speech

4) Equal Protection and Equality Norms Generally

5) Congress's Enforcement Powers Under the Reconstruction Amendments

6) Fourth Amendment Cases

7) Takings Cases

Of course, a reasonable response to this account by originalists is that the Court's many non-originalist precedents were decided before the Supreme Court had a substantial contingent of self-identifying originalist justices. But there are at least three responses to that suggestion. ...

To repeat my comments on Professor Fallon's article (which generally go to much of Professor Segall's post as well):

I agree judges should not be selective originalists, in the sense of arbitrarily applying originalism some times and not other times.  But I think criticisms in this direction may overstate for at least two reasons.

First, originalist judges act in a world of widespread nonoriginalist precedents and assumptions.  Judges don't have the resources or institutional capacity to reconsider the foundations of every line of doctrine that comes before them, particularly when the parties take the nonoriginalist foundations for granted.  Moreover, most if not all originalist  judges believe themselves constrained by precedent, including nonoriginalist precedent, to a substantial extent.  It's true that originalist judges (and originalism generally) could do more to develop a fully articulated approach to precedent.  But very often when one sees originalist judges using nonoriginalist reasoning and reaching nonoriginalist results, it stems from the complications of adjudication against the backdrop of decades of nonoriginalist decisions.

Second, it may often be that what is described as an originalist judge using nonoriginalist reasoning is, on closer examination, instead an originalist judge using weak originalist reasoning that the critic finds unpersuasive.  For example, it's very commonly said that the Court's decisions on state sovereign immunity are nonoriginalist (principally because they seem to diverge from the text and purpose of the Eleventh Amendment).  However, at least in Justice Scalia's view, those decisions rested on a background understanding in the founding era that the "judicial Power" vested by Article III didn't extend to suits against a sovereign without its consent.  (I discuss this point in my paper on Scalia's constitutional textualism, here, Part I.A).  That's an originalist claim.  It may be an unpersuasive one.  But that just means it's bad originalism, not that it's nonoriginalist.

To be sure, I agree that it's sometimes unclear why judges use originalism in some cases and not others, and that this is a problem.  (It seems to me this is at least a much a problem for nonoriginalist judges who use originalist arguments when it suits them).  But I think it's important not to overstate the scope of the problem.


Aaron Nielson & Christopher Walker: The Early Years of Congress's Anti-Removal Power
Michael Ramsey

Aaron L. Nielson (Brigham Young University - J. Reuben Clark Law School) & Christopher J. Walker (University of Michigan Law School) have posted The Early Years of Congress's Anti-Removal Power (American Journal of Legal History, forthcoming) on SSRN.  Here is the abstract:

Judges and scholars have long debated whether the Constitution provides the President with a power to remove executive officials. The Constitution, however, undoubtedly gives Congress tools to discourage the President’s use of such power. Perhaps most notably, the Appointments Clause makes it more difficult for the President to remove principal officers—even those whose views are out of the step with the President’s—because the President cannot know whether the Senate will consent to a preferred replacement. This is an example of what we dub Congress’s anti-removal power: Even if the President can remove, a motivated Congress can discourage the President’s use of that power.

In Congress’s Anti-Removal Power, we use game theory to show why anti-removal tools are effective—viz., they increase the costs of presidential removal, resulting in less of it—and argue that such tools have been a longstanding feature of interbranch relations. In this Essay, we focus on the founding era to argue that Congress’s anti-removal power not only comports with the Constitution’s language, but also is a deliberate feature of the constitutional bargain. Not only did James Madison and Alexander Hamilton bless anti-removal tools, but early Congresses enacted statutes that discouraged removal. While the question of presidential removal attracted debate in the first Congress, the same does not appear to be true for these anti-removal features. We thus conclude—in the spirit of dogs that do not bark—that Congress’s use of its anti-removal power finds support in both the Constitution’s text and founding era thought and practice.


The President's Power to Support Ukraine
Michael Ramsey

In an account of President Biden's recent dramatic visit to Ukraine, the Wall Street Journal reports:

Standing beside Mr. Zelensky with American and Ukrainian flags, Mr. Biden pledged unwavering support for Ukraine and its sovereignty and territorial independence. He wore a suit and a striped tie bearing Ukraine’s blue and yellow colors.

“I thought it was critical that there not be any doubt, none whatsoever, about U.S. support for Ukraine in the war,” Mr. Biden said.

The visit was an overt and public U.S. challenge to Mr. Putin. ...

Of course, nothing the President did or said created any binding obligations on the United States.  But, as an analysis at Real Clear Politics concluded:

His presence sent a message of defiance to Putin most directly and a cherished sign of resolve and empathy for the people of Ukraine. 

And it carries risks:

The personal nature of the president’s rebuke to Putin is meanwhile likely to trigger a response from a ruthless leader who has shown no mercy to civilians and a cruel indifference to the value of human life – Russian as well as Ukrainian. One potential way Biden’s visit could backfire is that it could bolster Putin’s claim that he is really fighting a war against the West rather than an independent sovereign nation – a framing that is popular among some Russians and is one Biden has tried to avoid.

My question is: where does the U.S. President get the constitutional power to send this powerful, potentially risky and perhaps controversial message on behalf of the United States?  I've not heard any constitutional objections to it.  But if, as a number of scholars argue (for example, Professor Julian Mortenson, here), that the President has only the foreign affairs powers listed in Article II, Sections 2 and 3, that list looks unpromising.  President Biden was not appointing (or even acting through) U.S. ambassadors, receiving foreign ambassadors, making treaties, or doing anything related to his power as commander in chief of the military.  So far as I'm aware there's no statute authorizing his actions (and as the Journal article goes on to say, Congress is actually somewhat divided on the matter).  I don't see how Professor Mortenson and others who agree with him could think the President's trip, and the  message it sent, was within the President's constitutional authority.

My answer (which won't surprise regular readers) is that the President gets the authority from Article II, Section 1.  That section vests the President with the "executive Power."  As I and others have argued at length (see here), leading commentators in the eighteenth century described executive power as including foreign affairs power.  Of course the Constitution allocated quite a bit of foreign affairs power away from the President.  But (we argue) foreign affairs powers not allocated elsewhere remain with the President as part of the Article II, Section 1 executive power.  Most importantly, this category includes the power to speak for for the United States, and communicate with foreign powers, on international matters.

As a result, President Biden's visit and the message it sent were entirely within the President's constitutional power.  But only under the theory of executive foreign affairs power.


Robert Leider: The Modern Militia
Michael Ramsey

Robert Leider (George Mason University - Antonin Scalia Law School) has posted The Modern Militia (57 pages) on SSRN.  Here is the abstract:

Twentieth-century legal reforms of the military have obscured the distinction between an “army” and a “militia.” For the Framing generation, the distinction between these two kinds of land forces was sharp. An “army” consisted of regular, professional troops, while the “militia” comprised citizens who would perform temporary military service when needed. The twentieth-century reorganization of the military, however, brought nonprofessional soldiers within the umbrella of the U.S. Armed Forces. As a result, most now view the standing army as central to our military system and the militia as anachronistic and largely extinct. Further, most believe that contemporary American society has jettisoned the Framers’ fears of standing armies.

This article reexamines the modern relevance of the militia system. The prevailing view presumes that the traditional army/militia divide concerned whether the country should rely on federal troops or state troops for national defense. But this federalism account is profoundly mistaken. The core of the Framing-era debates involved whether to professionalize the military. The Framers were deeply skeptical of professional soldiers, regardless of whether those soldiers were employed by the federal government or a state government. They preferred that the bulk of American military power reside with civilians. These civilians would perform military service during emergencies but would otherwise live normal, non-military lives.

Viewed through the proper lens, the militia - that is, the nonprofessional soldiery - remains a crucial part of the U.S. military system. Today, nonprofessional soldiers perform three principal tasks, which are similar to those that militiamen performed at the Framing. First, nonprofessional soldiers provide a means to connect the civilian community to the regular military. Second, nonprofessional soldiers supplement the regular forces in emergencies. Third, nonprofessional soldiers provide local forces for domestic peacekeeping to aid civil authorities when necessary because Framing-era norms against use of the professional military for domestic law enforcement persist.

In modern times, we denote the militia with different terminology - “reservists,” “Guardsmen,” and “registrants” (or “conscripts”). But while the labels have changed, the functions of nonprofessional soldiers have not. The militia system remains a vital institution.


Mary Sarah Bilder: The Influence of John Adams’s A Defence on the Constitutional Convention
Michael Ramsey

Recently published, in the (new) Journal of American Constitutional History, Mary Sarah Bilder (Boston College): The Soul of a Free Government: The Influence of John Adams’s A Defence on the Constitutional Convention.  Here is the abstract: 

Contrary to the conventional modern view, John Adams’s A Defence of the Constitutions of Government of the United States of America (1787) was deeply influential on the Constitutional Convention. Adams’s constitutional system, though not original with him, provided a useful synthesis that emphasized balance as a working principle, checks as the operational corollary, and institutional structures reflecting the many, the few, and the one. Through the contemporaneous serialization in the Pennsylvania Mercury beginning May 11, 1787, this system and Adams’s conceptual terminology were read by key Framers and infused the Convention debates. The debate over the Virginia plan responded to Adams’s structural arguments and revealed the instability of the word “monarchy.” During the subsequent debate over the Senate, Adams’s ambivalence over “aristocracy” led to recognition of the new American aristocracy of white slaveowners. Finally, the Committee of Style and Arrangement draft, despite abandoning Adams’s vocabulary, closely paralleled his structural recommendations. The apparent irrelevancy of the Defence to modern scholars arose, ironically, from its crystallization of then-conventional wisdom, the very feature that resonated with so many delegates and generated its significant influence on the Convention. Adams’s Defence thus provides one more example that the Convention’s decisions cannot be understood without including the larger Framing generation.


Originalism Must Necessarily Be Applied Selectively, and Not in Every Case
David Weisberg

A recent post by Prof. Michael Ramsey notes that Prof. Richard Fallon has published a paper, entitled “Selective Originalism and Judicial Role Morality,” with an abstract that asserts: “The Justices of the Supreme Court increasingly claim to be originalists. Yet close examination reveals that … [i]n large swathes of cases, the avowedly originalist Justices make little or no effort to justify their rulings by reference to original constitutional meanings.” 

Prof. Ramsey makes two responses.  First, much of the precedents and assumptions that originalist Justices deal with are non-originalist in nature, and Justices who feel bound by precedent therefore sometimes put originalism aside.  Secondly, some opinions that seem to abandon originalism may simply be unpersuasive originalism, rather than instances of non-originalism.

With great respect, I think Prof. Fallon is wrong to think that one would expect originalist Justices to apply originalism in every case interpreting the Constitution, and I think Prof. Ramsey is wrong to think that the selective application of originalism can be explained, e.g., by noting that even originalist Justices must deal with non-originalist precedents.  What is true, I submit, is that originalism must as a matter of logical necessity be applied only in very specific circumstances, and not in every case.

Consider two constitutional texts:

“[T]he right of the people to keep and bear Arms, shall not be infringed.”

“No Bill of Attainder … shall be passed.”

I submit there is no reason to believe that any of the words or phrases in the first text have a meaning today that differs from the meaning they had when the 2nd Amendment was adopted in 1791.  All those words are used today.  Trees can bear fruit; people can bear arms.  Moreover, if one presumes that those words and phrases all might have current meanings different from their so-called time-dated meanings, bad things happen. 

Justice Scalia entertained just such a presumption in his “legacy opinion” for the majority in D.C. v. Heller, 554 US 570 (2008).  The presumption is manifested, e.g., in his discussion of the meaning of “Arms”.  (554 US at 581.)  He immediately cites Dr. Johnson’s Dictionary, published in 1773, and refers to the definition of “arms” contained in that work. He similarly refers to that same dictionary to ascertain the meaning of “keep” (554 US at 582), and “bear” (554 US at 584).

If one presumes that the meaning of the words and phrases in the 2nd Amendment must be ascertained with reference to literary materials published roughly contemporaneously with that amendment, that presumption generates what I have called (here) the Paradox of Originalism:     

If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.

If Justice Scalia had conscientiously and consistently applied his original-public-meaning methodology, he never would have completed his Heller opinion, because he would have had to ascertain, using contemporaneous literary materials, the meaning of the words in Dr. Johnson’s definition of “arms,” and then he would have had to ascertain, using contemporaneous literary materials, the meaning of the words that define the words in Dr. Johnson’s definition, etc.,  ad infinitum.   The presumption Justice Scalia entertained generates an infinite regress, and that’s a bad thing.

Now consider the phrase “Bill of Attainder.”  That is a phrase that is never used today, except by lawyers, judges, and scholars who have some special interest in construing Article I, Section 9, Clause 3 of the Constitution.  I’d guess that law school graduates in 2023 will not have spent one second engaged in classroom discussions of bills of attainder.  It’s probably been more than two hundred years since any legislator proposed anything called a “bill of attainder.”  So, because the phrase has long been virtually absent from legal discourse, we can today have no clear idea what the phrase meant in 1789.  Therefore, it makes perfect sense to resort to literary materials in use around the time the Constitution was adopted.

The difference between the two instances is this: we may properly rely on contemporaneous literary materials regarding “Bill of Attainder” because that phrase has fallen almost completely out of use—it is an historic relic.  So, we rely on contemporaneous materials not because the phrase was made part of the Constitution long ago in 1789, but because today we do not have any clear idea what it means, and we therefore certainly do not know what it meant in 1789.  In contrast, nothing in the operative clause of the 2nd Amendment—not one word or phrase—is not regularly used today.  Therefore, using contemporaneous literary materials to define words and phrases in the operative clause can be justified only if one adopts the presumption that, due to the Constitution’s antiquity, every word or phrase might have a time-dated meaning different from current meaning.  And it is precisely that presumption that generates the Paradox of Originalism.

In sum, the originalism practiced by the late Justice Scalia must necessarily be used selectively.  It may properly be used only when we encounter a word or phrase in the Constitution that has fallen virtually into desuetude (“Bill of Attainder”) or has a meaning that on its face must differ radically from current meaning.  (E.g., “high Crimes and Misdemeanors” in Article II, Section 4.  In today’s legal context, a misdemeanor is low on the scale of offenses; a “high misdemeanor” is, to us, an oxymoron.)  If, in contrast, all the words and phrases in a constitutional text are familiar to us and readily understandable in their context, an application of Justice Scalia’s version of originalism generates an infinite regress.    


One last point: If the methodology employed by Justice Scalia in Heller generates an infinite regress, what kind of argument should be used to counter Justice John Paul Stevens’ (flawed) understanding of the 2nd Amendment?  The simplest, most convincing argument has nothing to do with Dr. Johnson’s dictionary.  Rather, it is this: If Justice Stevens’ understanding of the amendment is correct—that is, if the amendment is equivalent to: “The right of the people to keep and bear Arms, while they serve in the well regulated Militia of a State, shall not be infringed”—then why didn’t the drafters settle on precisely that language?  Surely, they had the skill to so formulate the amendment if they wished to do so.  That they did not do so indicates very clearly that that formulation is not what they had in mind. 

Roberta Lea Brilmayer: Abortion, Full Faith and Credit, and the 'Judicial Power' Under Article III
Michael Ramsey

Roberta Lea Brilmayer (Yale Law School) has posted Abortion, Full Faith and Credit, and the 'Judicial Power' Under Article III: Does Article IV of the U.S. Constitution Require Sister-state Enforcement of Anti-abortion Damages Awards? (52 pages) on SSRN.  Here is the abstract:

Article IV’s Full Faith and Credit Clause is likely to become the next battle ground in the war over abortion. Texas and other anti-abortion states have created civil damages actions for assisting in obtaining an abortion and are expected to apply their laws extra-territorially. Sometimes referred to as “vigilante” statutes, state laws modeled on the Texas legislation provide civil damages awards to any person who can prove the defendant’s involvement in an abortion, regardless of the plaintiff’s lack of connection to it. The choice of law issues in the extraterritorial applications of anti-abortion laws are by now familiar. What has not been considered is whether sister states would be required to enforce the judgments that result.

The issue is urgent. Since Dobbs was decided, pro-choice states have been studying different strategies for protecting persons subject to judgments obtained in states with these anti-abortion laws. Connecticut has adopted a “claw back” statute that would allow persons ordered to pay damages under these anti-abortion laws to sue in Connecticut to recover the judgment paid, with attorney’s fees. This strategy is unprecedented, but likely to be copied by other pro-choice states. There is no case law on its constitutionality, and no mention of the issue in the secondary literature.

There are several familiar exceptions to the obligation to give full faith and credit to sister-states laws that would justify this result. The most important basis for refusing the enforcement of sister-state judgments is found in the wording of Article IV, itself. The Full Faith and Credit Clause applies only to sister-state judgments that result from “judicial proceedings”. “Judicial” is a well-known term of art, due to its interpretation in Article III, which speaks of “judicial power”.

The drafting history of Articles III and IV strongly supports the conclusion that the word “judicial” should be interpreted identically in those two articles. Thus, in order to qualify for federally guaranteed interstate enforcement under Article IV a dispute must satisfy the Article III “case or controversy” requirement. But the disputes brought under the Texas civil damages law do not qualify as “judicial” under Article III. The reason is their lack of any injury in fact to the plaintiff, a “standing” requirement solidly grounded in the Supreme Court’s decisions interpreting Article III.

The Full Faith and Credit Clause is therefore not offended by Connecticut’s unwillingness to enforce its “vigilante” awards. Only an a-historical and a-textual analysis of Full Faith and Credit would require the enforcement of such judgments.


Chevron and Originalism: Why Chevron Deference Cannot Be Grounded in the Original Meaning of the Administrative Procedure Act
Mike Rappaport

Recently, I published a piece on Chevron and the original meaning of the Administrative Procedure Act.  While most originalist work has focused on the Constitution, there is some work on statutory originalism in general and on the APA in particular.  See, e.g. this piece by Evan Bernick.  

My article explores whether Chevron can be reconciled with the original meaning of the APA.  In particular, it argues against Cass Sunstein and Ron Levin, both of whom defend Chevron as not inconsistent with the APA's original meaning.  While I acknowledge there are a couple of plausible takes on the original meaning of the APA, none of them support Chevron deference.  At most, they support a narrower type of deference.   Here is the abstract

Chevron and Originalism: Why Chevron Deference Cannot Be Grounded in the Original Meaning of the Administrative Procedure Act by Michael B. Rappaport 

The Chevron doctrine, which requires courts to defer to an agency’s interpretation of a statute that it administers, is a central component of the administrative state. But in recent years, the doctrine has been strongly criticized for being inconsistent with the original meaning of the Administrative Procedure Act (“APA”).

In a recent article, Cass Sunstein defends Chevron against this charge, arguing that the original meaning evidence is equivocal. Sunstein maintains that one cannot clearly reject Chevron and therefore the Supreme Court should not overturn the case.

In this Article, I criticize Sunstein’s defense of Chevron and argue that Chevron is plainly inconsistent with the APA’s original meaning. Some commentators reject Chevron on the ground that the APA does not allow for agency deference. While I agree with these commentators that this is the best reading of the APA, I also agree with Sunstein that this is not the only possible reading of the statute. But this lack of clarity about the APA does not help Sunstein’s argument. Even if one interprets the APA’s text as Sunstein does, this still does not justify Chevron deference. Instead, it results in deference for mixed questions but no deference for pure questions of law. This interpretation would involve a narrower type of deference that would significantly trim the Chevron doctrine.

The Article then reviews and criticizes a more recent defense of Chevron deference by administrative law scholar Ronald Levin. While Levin presents additional arguments for Chevron deference, I conclude that these arguments are no more successful than Sunstein’s.