The well-known Chevron doctrine is under siege as courts continue to carve out exceptions to its scope and some scholars and judges question whether it should be overruled entirely. One ongoing battle concerns whether the doctrine, which requires courts to defer to reasonable agency interpretations of ambiguous statutes, applies to certain “split-authority” statutes administered by multiple agencies, such as the Sarbanes-Oxley Act’s whistleblower provisions (SOX) and similar employment statutes. Both the Department of Labor (DOL) and the Securities and Exchange Commission (SEC) administer SOX’s whistleblower provisions, with the DOL having formal adjudicative authority and the SEC having rulemaking authority, leading to the risk of the agencies rendering conflicting interpretations. This risk has led some courts and scholars to conclude that Chevron should not apply to these statutes in any circumstance. This Article argues, as both a doctrinal and normative matter, that courts should accord Chevron deference to agency interpretations of SOX and similar statutes where no conflict exists (as opposed to courts constructing their own interpretations with no deference accorded to agency interpretations or applying some lesser form of deference to agency interpretations). This Article further contends that the risk of a conflict occurring is greatly overstated (and certainly does not justify the rejection of Chevron to a whole category of statutes), and if a conflict does arise, it can be easily resolved as set forth herein.
Jessica L. Asbridge,
Be Reasonable: The Applicability of Chevron to Agency Interpretations of Split-Authority Statutes,
104 Marq. L. Rev. 813
Available at: https://scholarship.law.marquette.edu/mulr/vol104/iss3/8