Two Highly Recommend Articles (One a Draft) on Law Text Interpretation (7/10/26)

I write today to recommend two articles on interpretations of law text—Constitution or statute. Text interpretation is text interpretation. However, text interpretation by originalist/textualist leaning judges considers extra-text “history” leading to ratification of constitutional text in interpreting Constitutional text but reject such history (commonly called legislative history) for interpreting statutory text. (Why that difference I hope you ask?) For originalists in interpretation (often but not always textualists) the permissible tools are those that focus on the original public meaning or some variant of that to some imagined audience including as some fear “Joe the Ploughman” with arguably marginal reading skills generally or for law text. See Jack N. Rakove, Joe the Ploughman Reads the Constitution, or The Poverty of Public Meaning Originalism, 48 San Diego L. Rev. 575 (2011), here.

The first article addresses the effects of Loper Bright. Lindsay L. Clayton,  Defending Agency Actions After Loper Bright: Sea Change or the Same Old Beach? 74 DOJ J. Fed. Law. & Prac. no. 2, 49 (July 2026), here. An Appendix for the article is here. Ms. Clayton is Assistant Director in the Civil Division’s Tax Litigation Branch. The article is quite good in assessing the effects of Loper Bright on DOJ’s civil litigation. One would have to assume that, prior to publication in the DOJ’s house organ, the contents were vetted and approved by at least some of the attorneys in DOJ responsible for positions before the courts.

Some comments on Ms. Clayton’s articles:

The article repeats (pp. 50-51) the Loper Bright claim:

The decision criticized Chevron for requiring courts “to ignore, not follow, ‘the reading the court would have reached’ had it exercised its independent judgment” and for “demand[ing] that courts mechanically afford binding deference to agency interpretations.”

I believe that Loper Bright claim was false or, in any event, overstated what Chevron actually did. My claim is that Chevron allowed judges to apply (not defer to) an agency interpretation only where they were interpretive equipoise (same as ambiguity) where they could not decide whether the agency interpretation or the opposing interpretation was best or not best. In that zone of equipoise, courts were simply applying the agency interpretation as a default rule, like the rule of lenity; there were not deferring to an agency not best interpretation. I develop my claim further in an article for publication in the ABA Tax Lawyer sometime in the near future. But consider:

• For a succinct statement addressing Chevron’s meaning of reasonable interpretation and the latitude it gave courts to apply their own best meaning. See Jon Newman (respected 2d Circuit Judge), On Reasonableness: The Many Meanings of Law’s Most Ubiquitous Concept, 21 J. App. Prac. & Process 1, 83 (2021), here (“It would probably be too cynical to suggest that [under Chevron] the courts are just accepting agency interpretations with which they agree and rejecting those they disfavor, but in some cases that almost seems to be what is happening. Clearly there is no one meaning of “reasonable” in the context of Chevron deference.”)
• Judge Newman’s insight is consistent with empirical research of large data sets of cases that commoted about Chevron but none said or reasonably implied that the court deferred to a not best agency interpretation. Rather, Judge Newman was saying that the court determined a best interpretation and applied that interpretation or were in  interpretive equipoise. For my research, see Is Chevron on Life Support; Does It Matter? (Federal Tax Procedure Blog 4/2/22; 4/3/22), here; and Chevron Step Two Reasonableness and Agency Best Interpretations in Courts of Appeals (Federal Tax Procedure Blog 2/9/23), here. 
• Following through on my claim, the question is what courts do after Loper Bright do when they face ambiguous statutory text where they cannot honestly say that the agency interpretation or the opposing interpretation is the best? I cover that issue in my article addressing interpretive equipoise in percentage ranges, but just think about that. Keep in mind that Loper Bright cannot responsibly command or be interpreted to command that there cannot be ambiguity after applying all the tools of statutory interpretation.

Loper Bright makes claims that I believe are false. Having made the claims ex cathedra, Loper Bright has shaped how litigators must now view the past as to the APA enacted in 1946 and then the ambit of Chevron. That phenomenon is expressed in a quote from Gorge Orwell’s Nineteen Eight-Four (1949): “Who controls the past controls the future. Who controls the present controls the past.” Certainly, the Supreme Court controls the past with ex cathedra claims about the past whether or not the claims are true. (At least until the Court adopts a "restoration narrative.")

Orwell’s quote gets us to the second article, which is more general in nature rather than focused on Loper Bright. Cass Sunstein, Restoration Narratives (Preliminary Draft of July 02, 2026; for Forthcoming University of Chicago Supreme Court Review), SSRN here (ending with the Orwell quote). I doubt that I could do better than Sunstein’s abstract (keep in mind that Sunstein is a recognized guru in this type of issue):

          There are narratives of constitutional restoration. They have immense appeal, and they appear to be on the ascendency. They take the following stylized form: “At the time of the founding, a constitutional provision meant X. Almost everyone understood that it meant X. At some point after the authoritative moment, an inexcusable and even shocking blunder was made. Actually, the blunder was made by the Supreme Court itself. The provision was understood to meant (sic) Y, even though it obviously meant, means, and will forever mean X. Now the Court restores meaning X.” Originalists tend to be prominent restorationists, embracing restoration narratives, but originalists need not be restorationists, and restorationists need not be originalists. Restorationists might reject originalism as it is generally now understood. Restorationism, as we might call it, is simultaneously a big tent, encompassing various methods of interpretation, and a distinctive approach to constitutional law. It helps define and organize the work of the Roberts Court, especially in the areas of executive power, affirmative action, and judicial review of agency interpretations of law. From a certain point of view, Humphrey’s Executor v. FTC, Plessy v. Ferguson, and Chevron v. NRDC are essentially the same case. Restorationism can be combatted in identifiable ways; some of them accept its basic premises, but others do not. Restorationism may or may not rewrite the past; it may or may not offer an accurate account of history. Restorationism can be distinguished from other narratives, including narratives of translation, preservation, and (what justices see as) moral progress. The opposition between narratives of restoration and narratives of moral progress is especially interesting, and it helps define the difference among eras of constitutional law.

I could say a lot more about each of these articles, but I am not sure that they would be helpful to readers or distractions. So, I do urge readers interested in these issues to read the articles.