Article:
Mark Seidenfeld, A Syncopated Chevron: Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes, 73 TEXAS L. REV 83 (1994).
 

Abstract:
Under the Supreme Court’s two-step Chevron review process, a court determines whether the statute in question is silent or ambiguous with respect to an issue decided by a government agency. If the court finds that the statute is silent or ambiguous with respect to the issue, the court is bound to defer to the agency’s interpretation unless it is unreasonable. This initial step of the “Chevron two-step” proves determinative in the vast majority of cases; courts only infrequently determine at step two that agencies interpretations are unreasonable.

Professor Seidenfeld contends that Chevron, as currently applied, fails to comport with public policy. He argues that the pluralistic democracy model that is the implicit justification for Chevron is flawed, and proposes deliberative democracy as a more satisfactory conception of bureaucratic government. He also asserts that deliberative democracy suggests a modification of Chevron which would place the emphasis on the second rather than the first Chevron test step, thereby forcing agencies to explain why their interpretations are good policy in light of the purposes and concerns underlying the statutory scheme. Professor Seidenfeld thus advocates a “syncopated Chevron” as an improved approach to reviewing agencies’ interpretations of the statutes they administer.