Recent (and on-going) debates about Chevron deference, as well as the related "two-step" Chevron test, while heated, are noted for a general inattention to data. A recent paper by Kent Barnett (Georgia) and Christopher Walker (Ohio State), Chevron Step Two's Domain, however, makes a welcome empirical contribution to the Chevron debates. Drawing on a data set that includes 2,272 judicial decisions from federal circuit courts over an 11-year period (2003-2013), the paper, while limited to descriptive analyses, reports on the circuit courts' operationalization of Chevron's second step. The abstract follows.
"An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference—a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this Essay explores how circuit courts have applied Chevron step two to invalidate agency statutory interpretations. In doing so, it identifies three separate approaches that merit further theoretical and doctrinal development: (1) a more-searching textualist or structuralist inquiry into the statutory ambiguity in light of the whole statute; (2) an enhanced purposivist or contextualist inquiry; and (3) an inquiry into an agency’s reasoned-decisionmaking similar to arbitrary-and-capricious review under the Administrative Procedure Act."
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