A Syncopated Chevron: Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes

Abstract

Although traditionally courts have had primary and ultimate authority for interpreting statutes, the Supreme Court established a two-step review process that is much more deferential to a government agency's interpretation. Under the "Chevron two-step," a court determines whether the statute is silent or ambiguous with respect to the issue decided by the agency; if so, the court defers to the agency's interpretation unless it is unreasonable. The first step, which looks to whether the statute is silent or ambiguous, proves determinative in most cases; courts infrequently conclude at step two that agencies' interpretations are unreasonable.

This article argues that the current application of Chevron fails to accord with public policy. It contends that the pluralistic democracy model, which implicitly undergirds Chevron, is flawed, and he offers deliberative democracy as a more satisfactory conception of bureaucratic government. The article asserts that deliberative democracy suggests a modification of Chevron which would place the emphasis on the second rather than the first Chevron step, thereby forcing agencies to explain why their interpretations are good policy in light of the purposes and concerns underlying the statutory scheme. Thus, the article advocates a "syncopated Chevron" as an improved approach to reviewing agencies' interpretations of the statutes they administer.