“The New Red Tape: Agency Value Matching in a Post- Chevron World”

Abstract

In a post-Chevron world, agencies’ actions will be assessed on a grid comprised of legislative alignment, executive competency, and judicial tolerance. If agencies are to maintain legitimacy, however, new mechanisms, and practices must arise. Thus, public administration must incorporate a legalistic lens to include how competency and alignment lead to specific outputs, as litigants will present evidence in court to make a case without any deferential presumption for administrative agencies. This article argues that agencies must be proactive in obtaining preemptive justifications of their actions and matching values to each branch of government, in addition to their mandates.

Introduction: The Matter of Changed Interpretations

On January 17, 2024, Loper Bright Enterprises v. Raimondo (603 U.S. [2024]) was argued before the Supreme Court of the United States, where the chief question was whether Chevron U.S.A., Inc. v. NRDC (467 U.S. 837 [1984]), should be overruled (Oyez, n.d.). After over an hour of oral argument, Justice Elena Kagan posed a final question to Solicitor General Elizabeth B. Prelogar about the practical implications of judicially overturning Chevron and how views have shifted as to its stalwart principle: that deference should be given to an agency when there is litigation as to its actions (Oyez, n.d.). “And is there anything you would say,” the Justice asked, “about the matter of changed interpretations” (Oyez, n.d.)?

“So, I think that changed interpretations already are an area where the agency is under additional burdens to justify its decision-making,” the Solicitor General answered, “I think they get a harder look. . . The agency [] frequently, if it’s come from a notice-and-comment rulemaking, has to run that process all over again. That’s a time-intensive process. It takes a substantial investment of agency resources. . .” (Oyez, n.d.).

Nearly 5 months later, Chief Justice John Roberts wrote the opinion for the Court, overruling Chevron (Loper Bright Enterprises v. Raimondo, 603 U.S. [2024]). Justice Kagan concluded her dissent by embodying the spirit of the Solicitor General’s argument (Loper Bright Enterprises v. Raimondo, 603 U.S. [2024]): “[S]hifting views about the worth of regulatory actors and their work do not justify overhauling a cornerstone of administrative law. In that sense too, today’s majority has lost sight of its proper role” (Loper Bright Enterprises v. Raimondo, 603 U.S. [2024]).

The practical administrative effects of the Loper Bright Enterprises decision are mostly unknown; what is known, however, is what Justice Kagan indicated in the penultimate paragraph of her dissent: the “worth” of regulatory actors and their work—their value—have been seen differently by the Court over the course of over 40 years (Loper Bright Enterprises v. Raimondo, 603 U.S. [2024]). The implication is that there is a value fissure between agency and Court interpretation. The agencies’ value, as acknowledged by the Solicitor General, is tied to its investment of resources to accommodate additional burdens. These burdens are imposed by Court opinions, signaling to agencies how they should act. This signaling may not change an agency’s mandate, but, if improperly interpreted, it can lead the processes and administrative goals of that agency toward illegitimacy.

The legitimacy of administrative agencies long has been a topic of study in public administration. Largely, this literature has focused on the amalgamation of laws enacted that have given the elected branches increased oversight over agencies and the increased burden of the rulemaking process (Christensen et al., 2011; Rosenbloom, 2000; Zouridis & Leijtens, 2021). At the juncture of political influence and the ability of agencies to meet their objectives lies the area of the attention of agencies, a limited resource that is goal-oriented. Although agencies receive and interpret signals from the Court, the overruling of Chevron represents a significant signal loss. Although the Constitutional and behavioral public administration literature has analyzed how agency attention can be organized, little work has been done that addresses a lack of signaling from the political principal or the proactive actions that agencies can take to overcome signal ambiguity. Agencies’ interpretations will now be decided on a case-by-case basis until a pattern emerges based on court-preference of certain types of evidence.

This article analyzes the potential impacts of Chevron being overruled and how agency attention is likely to change in response. It is posited that most agencies will take a wait-and-see approach, continuing to function business-as-usual. Other agencies may be proactive by necessity, since the agency is the one being challenged in court by a plaintiff. This will mean that conducting intensive measurements supporting agency goals with varying types of expert evidence to survive scrutiny is tantamount to preserving agency legitimacy. Additionally, agencies will now need to construct novel arguments to demonstrate their value to the Court.

The article is structured as follows: first, it will describe the fall of Chevron and what the practical replacement of agency-deference jurisprudence will be. This is followed by a brief overview of the attention theory literature as it relates to federal agencies and the judiciary. Here, a theory of value matching is articulated in which agencies reflect the values of the three branches of government by paying attention to particular signaled values. A graphical example is then used for measurement of an agency’s value match related to the three branches. I conclude by discussing the future implications of rule interpretation and the maintenance of agency legitimacy in the face of judicial scrutiny.

The Fall of Administrative Deference and the Rise of Evidentiary Proof

Administrative law is the jurisprudence of the actions of agencies (Coglianese, 2022). Chevron was the true cornerstone of this body, whereby it served as a Brannock device for a judge to determine the right “fit” for an agency’s particular action as it related to litigation on that action. The test for fit was whether the agency was legislatively granted the power to act and whether the action was within reason (Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 [1984]). The agency, by virtue of its actions in carrying out policy, was granted deference, and the general notion was that the proper way to stop agency action was through the electoral process and not the courts (Meier & O’Toole, 2006; Saltzstein, 1992). This is not the case anymore. Now, judges will independently determine whether the agency properly acted without being mandated to use the Chevron precedent (Loper Bright Enterprises v. Raimondo, 603 U.S. [2024]).

Yet, “[e]very judgment has a generative power” (Cardozo, 1921), and judges cannot avoid making law when resolving a case (Day, 1976). Other litigants will, with similar or disparate issues, indeed rely on original, logical arguments to seek relief, but they also will make distinctions or comparisons based on what judges have already decided (i.e., relying on precedent. The aim of an adequate judicial system is that an impartial judge will render a decision that is just and fair. To exhibit fairness, the judge will rely on and reapply the methods of what has already been decided in prior controversies. A side effect of this adequate judicial system is that the decision being made will be made efficiently because it relied on precedent so as to not reinvent the legal wheel.

Those who engage in the judicial system agree that a final decision on the merits should then “rest in peace” (Burns, 1893), reflecting the aphorism, “stare decisis et non quieta movere” (literally to stand to the decision and not quietly move from it). This foundation, however, is currently shifting (Ramos v. Louisiana, 590 U.S. 83 [2020] [Kavanagh, J., concurring]). Gone is the widely-accepted perception that a judge ought not to be influenced by the fleeting “weather of the day,” as noted by constitutional law Professor Paul Freund, but by the vaster “climate of the era” (Ginsburg, 1997). Echoing Justice Kagan’s dissent (Loper Bright Enterprises v. Raimondo, 603 U.S. [2024]), the departure from relying on Chevron, given its “pervasiveness,” is a result of pervasive polarization in the judicial system itself. While the judicial system is one of “laws, not of men” (Adams, 1776), the humans who make up the system are inherently fallible. Yet, the adversarial nature of the system serves as a check on human fallibility, ensuring that open accusations in court are supported by evidence and that multiple participants verify the validity of these accusations (Miller v. Fenton, 474 U.S. 104, 110 [1985]; Sward, 1989).

Evidence therefore is key in reasoning—especially where either precedent does not exist to squarely resolve an issue or long-held precedent has been abandoned. This is because, where no precedent exists, logic as supported by evidence will ultimately persuade a genuinely neutral judge. The abandonment of Chevron will be no different in this regard: evidence will now rule the day until new principles arise only after years of litigation to establish new precedent as a result of judicial tolerance of certain evidence, thereby replacing Chevron.

The body of evidence law is the jurisprudence on the conduct of fact-finding (Langbein, 1996). Direct evidence is testimony heard in court where the person testifying is judged based on believability or credibility, while circumstantial evidence is most other kinds of evidence: qualitative (such as interviews, history or weather reports, and news articles) or quantitative (such as numerical data, statistics, and interpretations thereof; Patterson, 1965). Of course, an expert can testify as to the sufficiency of the circumstantial evidence proffered, but the “best evidence” itself will remain circumstantial (Omychund v. Barker [1780] 1 Atk, 21, 49; 26 ER 15, 33; Article X, Federal Rules of Evidence [2024]). Chevron once practically served as a legal counterweight against a plaintiff’s direct evidence; after all, it would be rare or, more plausibly, impossible for an agency to counter a plaintiff’s testimony with a witness who can supply contrary testimony. This is especially so if it is against the plaintiff’s most personal convictions. In this scenario, judges would not need to necessarily make credibility determinations against a plaintiff, since Chevron had embedded a more removed standard of review.

That said, without Chevron as a north star, a judge will now need to make a credibility determination between the allegations made by a plaintiff through testimony against an agency’s circumstantial evidence alone. Such a scenario was not originally an issue under Chevron, since judges did not need to make credibility determinations in light of the presumptions for the agency. A judge now can find that a plaintiff is credible against all evidence, but this would pose questions of indiscretion on the part of the judge on appeal as to whether there was a proper examination of the evidence (Greenstein, 2009). But the potential scenario looms large where a judge can rely on a plaintiff’s closely-held belief against all evidence to the contrary, perhaps because the judge’s closely-held belief aligns with the plaintiff’s.

Indeed, evidence can be weighted differently based on the case. For example, an out-of-court, unsworn statement will hold less weight generally than an in-court, sworn-to one (Article VIII, Federal Rules of Evidence, 2024). Yet, in this new era, it is not beyond the realm of possibility that an out-of-court unsworn statement uttered by one with a certain status or power may be weighted just as persuasively—or more so—than in-court, sworn-to testimony, reflecting a judge’s personal persuasion. Still, the inherent hope of the U.S. judicial system is that, in the aggregate and over time, evidence will be considered properly regardless of one’s status of power, including assertions made by the very president who appointed those who sit on the bench (Trump v. Vance, 591 U.S. 786 [2020]).

This is why eventually Chevron will be replaced with a patchwork of other precedent in administrative law incorporating the law of evidence: since there will someday be an agency policy determination that will be upheld by a judge, the underlying rationale and review of the evidence presented will be the roadmap for other litigants to successfully present a sufficient case. This means that the qualitative and quantitative evidence that a court upheld will be replicated, compared to, and then cited to that court’s disposition—that is, precedent. The other practical reason why Chevron will be replaced in due time is to reduce any bias or potential ruling on the part of the judge who may have a closely-held belief that aligns with the plaintiff’s. This will, of course, take years to develop as a new body of law.

Until then, agencies must prepare justifications—qualitative and quantitative—before any litigant sues. This is the nature of litigation without any deferential guardrail. This additional burden will now be placed on an agency not only to carry out its function but also to justify why it functions in that way. This means that an agency likely will need additional employees for data collection, interpretation, and presentation (Federal Communications Commission, 2018). In light of the massive effects from superseding case law, a legal lens in public administration is now necessary without Chevron as precedent, since an agency will be forced to prove, validate, substantiate, and verify its function in the courts and secure its legitimacy. Otherwise, the public and the courts may characterize the new administrative landscape as agencies merely acting sluggishly and inefficiently, rather than functioning while being saddled with newly imposed legal burdens.

Signal Loss and the Shift in Agency Attention and Values

There is now a signal loss from the judiciary due to the absence of any test. This signal loss constitutes a shift in the external environment in which federal agencies exist and in which the courts are the final arbiter of agency outputs (Amsler, 2016; Chen et al., 2024). Attention theory squarely addresses signals and reactions, allowing for the anticipation of future measures that agencies will take to manage novel complexity (Cavazos & Rutherford, 2017). Agencies must now rededicate their attention by focusing on generating new types of evidence as if litigation were inevitable so as to achieve their mandate and policy goals.

As agency attention shifts in accordance with the goal of achieving policy longevity, three broad ways to characterize the actions can be taken. First, proactive measures can be taken with the aim of achieving rule survival; some examples include staffing agencies with individuals who have the requisite expertise, examining the work of other agencies’ success, and vying for increased funding to increase capacity (Brehm et al., 2006; Limbocker et al., 2022; Woods, 2018). Second, agencies may become static and conduct business as usual until a new signal appears to give more overt guidance (May et al., 2008). Finally, agencies can take reactive measures, in which strategic initiative is lacking and planning is implemented in piecemeal fashion, dispersing agency attention to the point of displacing goals (Du Gay, 2008; Meier et al., 2019; West, 2004).

Although it might be ideal for agencies to perform proactively in the face of this new signal loss, they will likely remain static due to legal ambiguity and divided attention (Chun & Rainey, 2005; Moynihan, 2009). By remaining static, agency responses can appear lethargic (Lavertu & Yackee, 2014). After all, how agencies choose to organize their attention impacts outcomes (May et al., 2008), and these outcomes depend on the skillsets of teams (“composition”) and how long it takes to prepare a rule (Carrigan & Mills, 2019; Terman, 2015). By that same token, more experts in a policy area may take less time to prepare a rule, but the rule is more likely to be overturned by the courts (Carrigan & Mills, 2019).

A signal loss results in a goal shift, since agencies need to consider not only how to best carry out their statutory mandates, but also how to survive the scrutiny of the courts. Part of this shift will be characterized by moving away from policy experts who focus on the substance of rules and moving toward legal experts who will decrease the chances of getting overruled (Moura & Miller, 2019; West, 2004). This is effectively a more outcome-based approach that will use cost-benefit analyses oriented toward judicial scrutiny (Poggione & Reenock, 2009; Riccucci & Thompson, 2008; West, 2004). It is now a reasonable calculation to ascertain whether it is worth agency resources to promulgate a rule that ultimately could go before a judge who is hostile towards a specific agency or policy goal. This is especially so when the outcome can be applied in other agency litigation beyond the litigants in a particular case. Therefore, agencies may consider the “safest” option and remain static until a new signal emerges from other litigation elsewhere.

Agencies’ goal shifts also will influence a broader value shift (Nabatchi, 2017). Agencies will now need to manage goal and value shifts similar in part to Rosenbloom’s (1983) theory of public administration, which attributed different values to the branches of government (the executive branch and managerialism; the legislative branch and democratic pluralism; and the judicial branch and the right to due process). This value shift will relate to agencies’ outputs as they attempt to match values with each of the three branches of government. To match the legislative value of democratic pluralism, agencies will demonstrate legislature alignment, ensuring that they reflect the will of the populace (Bertelli & Lynn, 2006; Stephenson, 2008). Turning to the executive, agencies will seek to value match by demonstrating competence in carrying out presidential objectives (Edwards, 2001; Hong & You, 2018; Krause & O’Connell, 2016, 2019; Moynihan & Roberts, 2010). While these two branches demonstrate consistent signaling, the value match for the judicial branch—tolerance—is now significantly harder to interpret (Johnson, 2014). After all, the precedent of agency deference has been eliminated, along with a stable and predictable doctrine that joined rule promulgation and adjudication.

Discussion: Effects of the Additional Burden

Application of Value Matching to Agencies

In a practical sense, before the fall of Chevron, agency value matching was straightforward under the strict terms of the Chevron test itself. This notion was embodied in the deference test, where a rule would not be stricken if it could be reasonably construed as carrying out what Congress had intended. Now, a more partisan court is increasingly likely to strike down rules as they become less tolerant of agency action, even if agencies make a reasonable interpretation of what Congress had wanted (Howe, 2024). Following Loper Bright Enterprises, a new legal lens should be applied in practice to ensure that agency rules can pass muster in litigation. This lens consists of three broad strategies that agencies can employ before the courts to ensure value matching: articulation, collection, and demonstration. Together, this three-pronged strategy will be used to articulate the value of rules promulgated, to collect and interpret ideal forms of evidence, and to demonstrate value matching.

Independent agencies will likely carry the torch of determining how to demonstrate evidence in policy-related litigation, since resources are more available to them. To accomplish this, agencies should shift their attention to value matching and develop relevant practices related to that strategy. A major way that this can be accomplished is the use and manipulation of language to demonstrate value matching (Rosenbloom, 2007; Sossin, 2021; Yackee & Yackee, 2010). Referring to the developed three-pronged legal lens, value matching practices will entail the articulation of values by threading together language used by the Executive with that used by agencies. Additionally, the collection and interpretation of evidence means articulating a value match to construct an appropriate means of expressing the values of Congress. Ultimately, this is meant to unambiguously demonstrate that agencies are not acting out of the purview of the branches of government and that their decisions should be tolerated due to consistency.

Pressure to Drift Away from Neutral Competency

Historically, public administration has viewed the ideal bureaucrat as being neutrally competent or value-neutral. Post-Chevron, however, the individuals that comprise the agencies may assert their own values or conform to those of stakeholders (Bozeman et al., 2024; Du Gay, 2008; Peters, 2020; Uttermark, 2023). After all, these individuals may have been selected based on expertise or the merit system. This dynamic inherently cuts against neutrality, since the merit system favors certain qualifications over others. Additionally, agencies themselves are more likely to reflect the values from their founding rather than contemporary ones, with the former values imprinted deeply into the character of the agencies (Cavazos & Rutherford, 2012; Singh, 1990).

The influence of individual values and path dependency illustrates the importance of agencies dedicating time and attention to value matching. Individuals in agencies and the agency itself could have disparate and even divergent values that could cut against the larger value matching. The result is the need to reflect those values through visible practices (Meyer & Rowan, 1977; Wood et al., 2022).

Without Chevron, executive agencies will cede to anticipated litigation and likely change policy in order to stop actions and avoid critical decisions, seeking to escape additional burdens to ensure a value match with competency. Agencies that are more independent will be more likely to compile evidence to justify their actions because they need to enforce and apply policy due to the mandate of Congress. On balance, without Chevron and with the competition to value match multiple branches, this seems likely lead to more frequent but weaker executive actions and stronger congressional acts. In part, this will be due to the vulnerability of executive actions to withstand scrutiny under the Administrative Procedure Act (APA) (as underscored by the legal rationale in Loper Bright Enterprises, 603 U.S. [2024]).

Additionally, this is unlikely to change soon, as the composition of the Court is unlikely to undergo variation, although a return to stare decisis is not out of the question under a differently composed court. With a new legal lens, agencies will tend to resist action in order to avoid additional burdens. However, through continued litigation, practices will eventually emerge that will allow agencies to parse judicial decisions and articulate legal positions to value match with the other branches. This will make it more difficult for the courts to justify antagonistic positions, as they then would appear out-of-touch, risking further delegitimization of the judiciary.

Polarization

In a post-Chevron world, polarization will proliferate as additional agency burdens further erode public confidence in bureaucratic expertise. Career bureaucrats have reported being excluded from the rulemaking process so as to ensure loyalty, which, in light of Loper Bright Enterprises, evinces a pattern (Peters & Pierre, 2019; Rockman, 2019). Because of this adversarial nature between competence and loyalty, the death of Chevron is the death of reliance on experts, and it is representative of a broad campaign to erode expertise in government altogether (Arellano-Gault, 2020). This explains why agencies need to adopt new strategies, as the rise of populism and polarization continues unabated.

Ordinarily, the courts would act as a check on the one-sided exercise of power by not tolerating it; however, as polarization increases, this type of unchecked behavior is more likely (Roberts, 2019). If agencies are going to carry out policy effectively, the non-expert should not be rewarded for loyalty to a particular administration (Ennser-Jedenastik, 2016). The appointment of non-experts to agencies inevitably will lead to incompetence and policy impotency (Ennser-Jedenastik, 2016; Meier et al., 2019).

Conversely, agency experts are more likely to be over-scrutinized based on actions taken, creating a vicious cycle by which ineffective policy effectuated by loyalists is expected. Drawing from history, Theodore Roosevelt reformed the civil service hiring system by introducing more objective metrics to assess candidates, thereby decreasing partisan will in the hiring process (Rosenbloom, 2007). This underscores a rejection of loyalty in government (abandoning the notion that “[t]o the victor belongs the spoils” [The University of Texas Arlington, 2024]) and towards expertise (embracing the fact that “those with great expertise and charged with responsibility for administering the provision would be in a better position to do so” (Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 [1984]).

Praxis: A Way to Capture Agency Effectiveness from These Shifts

To visualize the alignment of agency action related to the values of the three branches of government that we have articulated one would focus on: (1) legislative alignment, (2) executive competency and (3) judicial tolerance. The three values might be placed in a Cartesian plane, with placements based on assigning relative numerical values to each branch value. Consider legislative alignment on an x-axis, ranging from weaker to stronger alignment. Next, contrast this with executive competency on a y-axis, spanning from weaker competency to stronger competency. Finally, add the z-axis of judicial tolerance, from weaker tolerance to stronger tolerance. All three planes demonstrate patterns of agency output as it relates to each value associated with in the three branches of government. It also highlights how judicial tolerance influences agencies’ rules and regulations.

Before Loper Bright Enterprises, an agency’s action would be placed as it related to legislative alignment and executive competency. The four quadrants would reveal, once the data had been collected and values assigned, a pattern of agency action. After all, the judiciary would have determined whether the action was legislatively aligned, incorporating Chevron deference. Now with Chevron extinguished, the judiciary has its own independent notion of the actions of an agency. The ideal quadrant for an agency action (to be both legislatively aligned and competently led by the executive) now turns into an ideal octant (to be legislatively aligned and competently led by the executive and tolerated by the judiciary).

Final Discussion and Conclusion

This article seeks to return to a predictable and stable administrative and legal environment as it relates to agency action. In order to do that, we propose that evidence law will be the future of administrative law. We contend as well that agency value matching is the most effective way to move forward in a post-Chevron world, since value matching will create a more predictable and stable regulatory environment. Further study is necessary that incorporates the Cartesian model as described here, where quantitative analyses could render a broader understanding of the results of an agency’s value matching related to agency action.

Overall, Loper Bright Enterprises yields two chief conclusions. First, the shift towards evidence law and the necessity of additional agency action will create an additional administrative burden. Second, in light of the judiciary inserting itself into whether an agency’s actions are justified, the likelihood of an agency’s effectiveness will be diminished. In order to curb this, an agency must identify a patchwork of successful evidentiary principles in similarly-situated agency litigation and replicate that success in its own cases. The grid described here can and should be used so as to evince a pattern of effectiveness in order for agencies to model their policies.

Agencies will ultimately continue to promulgate rules based on their functions at the rates described above, but their rules are more likely to be struck down by the courts. Further study is necessary to determine the statutory assumptions made by Congress (i.e., whether statutes were written assuming that Chevron would interpret them in a certain way), whether Congress intended for the judiciary or the executive to restrain its will, and whether agencies have alternative strategies to counter populism and polarization.