Administrative Character

A Prudential Character: Soft Look Considerations

The disjunction between questions of law and substance somewhat reflects the anti-legal temper in the field (Lynn, 2009). This temper has allowed for a shift away from the grounding of administration from a field of law to a field of management (Arnold, 1998; Lynn, 2009). Although the law can serve as the foundation for the field (Moe & Gilmour, 1995), it tends to be put in a separate space or subsumed under the avalanche of managerial concerns that demand administration be effective and efficient. Under such an approach, administration is marked by a substantive character that is rooted in formalizing managerial operations through scientific means. Although establishing such process aids in the establishment of a reasoned character, it also creates situations where agencies can be detached from pragmatic and political concerns (Adams, 1992). The ability to make choices that consider a mixture of reason and reality requires a more flexible approach to complex issues.

To allow for a broader and looser approach, an interdisciplinary approach that highlights taking a more adaptable route to handle multifaceted problems is needed (McSwite, 2001; Raadschelders, 2010). Agencies must not only be able to examine assumptions of the governing process but also have the cognitive flexibility to use different forms of knowledge to address public problems (L. K. Newswander & Newswander, 2012). This necessitates a reliance on tapping into interdisciplinary concepts like phronesis or prudence, not just relying on robust forms of rationality (Hariman, 2002). Although there are many angles to understanding prudence (Beiner, 1983; Hariman, 2002; Ruderman, 1997), the term has often been described as a way “to exercise judgment in particular cases” (MacIntyre, 2008, p. 154). This mode of reasoning helps form an ethos that is characterized by a set of patterns marked by considering how to adjust to present concerns in light of what has come before and what will come after, balancing the general with the particular, and a willingness to use different modes of rationality.

The disposition to achieve sound judgment amidst conflict and change requires a perspective that allows one “to view or see” by having foresight (Dobel, 1998, p. 76). Elevating sight beyond the immediate permits one not to be blinded by the effects of present situations. A willingness to stand above current winds also enables an element of discernment, which allows a long-term orientation that is not interrupted by short-term gains to emerge. Insight about foresight is also accompanied with a disposition toward memory (Small, 2011). The consideration of the past grants an awareness that solutions to modern problems are usually not new, but often contain hidden strengths and costs that can be informed by memory. Time-tested practices cannot be ignored, but must be taken seriously to determine how they can be adapted to fit current circumstances. As a whole, perspective (memory and foresight) strengthens one’s character to be able to repel momentary stress rooted in fads that do not serve the good.

However, perspective also needs to be balanced against present concerns. This is one reason why democratic pressures are a critical element in prudential considerations (Wamsley & Wolf, 1996). They serve not only to check an undue reliance on the future or past but also provide an urgency to consider pressing issues in context of broader regime concerns. In particular, the pressure of politics provides agencies with the chance to reevaluate decisions. To handle the force of these pressures, one must be able to align changing realities with general conditions. This often requires continuing readjustments.

Another way to parse out dimensions of a prudential character is a recognition that there are a variety of approaches to dealing with public problems ranging from “the limited powers of science in human affairs” to “tacit knowledge” (Overeem & Tholen, 2011, pp. 739-740). Prudence does not reject either mode of rationality, but seeks to draw on both. Some situations require calculated reason and others rely on the idiosyncratic. In addition, there are the cases where a combination of approaches is needed. When these factors are taken into account, judgments are often not permanent, but should be informed by particular realties and general considerations. Balancing these two poles is a mark of prudence. However, these decisions are not infallible. This allows agencies to engage in a process that is marked by fluidity.

To achieve prudential dispositions rooted in process, the court developed a soft look orientation on matters of legal interpretation in Chevron U.S.A., Inc v. NRDC (1984). Rather than imposing heavy guidelines that would stall administrative action or prevent them from adjusting to changing circumstances, the character of administration was to be embodied in prudential considerations that allowed them to be responsive to present conditions, be adaptable enough to consider past and future issues, and to pull from a diverse array of methods. By infusing agencies with such an ethos, the court was giving them the room to leverage power from legislative statutes to handle public problems in such a manner. The foundation of how an agency could act, which was based on a reasonable reading of those legislative statutes, was designed to shape a character that could reason in a flexible way, respond to changing circumstances, and have the autonomy to do so.

The court began to incorporate such an ethos by allowing for deference. Instead of substituting administrative reasoning with judicial judgment or requiring agencies to perform additional work, it would allow them some autonomy. The court ruled broadly in Vermont Yankee v. NRDC (1978) that it could not impose hybrid rulemaking and specifically in American Textile Manufacturers Institute, Inc. v. Donovan (1981) that it could not force agencies to conduct a cost–benefit analysis. The inclusion of a broader version of autonomy was soon followed by the development of a deference orientation (Baltimore Gas & Electric Co. v. NRDC, 1983; Chevron U.S.A., Inc v. NRDC, 1984). In particular, the Chevron doctrine established a two-step process. The court would not interfere with agency decision-making as long as Congress had not first set down clear guidelines in statutory interpretation. If clear direction was absent, the second step entailed a freedom to act in an autonomous manner as long as agencies were within the scope of “permissible construction of the statute” (Chevron U.S.A., Inc v. NRDC, 1984). These requirements pushed agencies to reflect on general considerations codified in law. They were to look at these statutes as a source of guidance and as a source of deference. The law provided the general direction while the ambiguity in that law allowed them the autonomy to fill in the details. In particular, this trend of judicial deference was reinforced in Heckler v. Chaney (1985). Although the doctrine of nonreviewability was confined to cases where an agency decided not to act, the court, more generally, was allowing them to set their own priorities in the course of executing and interpreting the law.

Judicial deference was also coupled with the ability of agencies to confront changing realities, especially in regard to the dynamic pressures of democratic fluctuations. Instead of rejecting politics as a dubious influence that taints sound conclusions, the court in Chevron embraced the fact that reasonable interpretations of the law could be guided by democratic impulses. It ruled that agencies could “rely upon the incumbent administration’s views of wise policy to inform its judgments” (1984). This was an attempt to legitimize the relationship between politics and science (Freeman & Vermeule, 2007; Watts, 2009), which allowed agencies to incorporate an element of responsiveness alongside other forms of scientific and social knowledge. Reasonable claims could be guided by political pressures. The mentality of allowing decision-making to be grounded in changing political preferences was reaffirmed as precedence in Rust v. Sullivan (1991). Justice Stephen Breyer also relied on this standard in his dissent in FDA v. Williamson, claiming the permissibility of administrators to take “a different regulatory attitude” was partially based on changing political circumstances (2000).

The presence of politics added another wrinkle in how agencies dealt with contingent situations. Although politics and science were often complementary (Freeman & Vermeule, 2007), they could also be at odds with each other. Because of the possible tension in any circumstance, decisions to exercise administrative power and attempts to authorize it required them to be able to weigh and rank conflicting perspectives. This meant that agencies not only consider precedence and future outcomes but also be given the necessary elasticity to stretch and even change. For the court to achieve this, it declared in Chevron that agency interpretation of law was not to be considered “carved in stone” (1984). In fact, agencies must evaluate “the wisdom of [their] policy on a continuing basis” (Chevron U.S.A., Inc v. NRDC, 1984). Justice Antonin Scalia, providing an account of this flexibility in interpreting statutes, noted, “The Environmental Protection Agency can interpret ‘stationary source’ to mean a single smokestack, can later replace the interpretation with the ‘bubble concept’ embracing an entire plant, and if that proves undesirable can return again to the original interpretation” (United States v. Mead, 2001). The focus here was on helping agencies reason in a certain way. They needed to have the options to consider whether they should return to previously held decisions, articulate a different way forward, or meet current realities. Foresight, memory, and circumstance were needed to see how statutory language could be adjusted in a reasonable manner. Changing circumstances allowed for a reordering of priority, which would allow agencies the chance to capture a temporary but adequate fit between a general guideline and shifting particulars.

This is precisely the ability that the court had been trying to shape within the character of administration. It permitted agencies to make tactical moves that allow them to adequately address the problem before them, whether that meant requiring additional scientific studies or using alternative information to make decisions. In Entergy Corp. v. Riverkeeper (2009), the Enivronmental Protection Agency (EPA) imposed on itself a rigorous, technical criterion when it promulgated standards in relation to clear water. A cost–benefit analysis would now be considered necessary. Statutory authority did not require the agency to do so, but the EPA determined through its interpretation of the Clean Water Act that the best way to reduce environmental damage was the implementation of such a test. Although the dissent argued that it did not have this power, the majority rested its argument on Chevron, noting “that an agency is not required to do so does mean that an agency is not permitted to do so” (Entergy Corp. v. Riverkeeper, 2009). The power to interpret, as long as Congress has granted this authority and it is a reasonable construction of the statute, was an administrative prerogative. In this case, additional scientific information achieved through a proper interpretation of statutory authority gave the agency the information it needed to act.

The judicial acceptance of context and contingency provided agencies with the permission to have an expanded ethos in dealing with how to authorize administrative action on prudential grounds. The court reaffirmed this finding in a slightly different way in City of Arlington v. FCC (2013). The question the court had to confront was whether Chevron deference should apply to cases dealing with agency interpretation of the scope of its authority. Even though the dissent argued that granting agencies latitude in determining the width and breadth of their jurisdiction would contribute to administrative aggrandizement, the majority opinion rebuffed such analysis. It did so by exposing that this jurisdictional attack of deference to administrative discretion was a front, noting that the “ultimate target here is Chevron itself” (City of Arlington v. FCC, 2013). For the majority opinion, the question was “always, simply, whether the agency has stayed within the bounds of its statutory authority” (City of Arlington v. FCC, 2013). Agencies did not have the power to go “beyond what Congress has permitted it to do” (City of Arlington v. FCC, 2013). Jurisdiction was limited by congressional intent. Within that scope, agencies must be given leeway to make reasonable interpretations of statutory authority.

Without such deferential standards, the “stabilizing purpose of Chevron” would “be replaced by chaos” (City of Arlington v. FCC, 2013). This was because the tenet behind deferential space was allowing agencies “the wisdom” to reevaluate continually its own interpretation of “statutory authority” (Chevron U.S.A., Inc v. NRDC, 1984). The removal of discretion from very complex situations and the establishment of judicial oversight over ambiguity would result in wading into “murky waters” (City of Arlington v. FCC, 2013). To maintain the viability of the law to adjust to changing conditions, agencies must have mobility. A sound ethos marked by deference, responsiveness, and flexibility provided them the chance to respond in such a manner. The wisdom of administration needed to be conveyed in a prudential manner that allowed agencies to take into account what the context of a situation demands while also incorporating general guidelines into that process. In essence, Chevron established a two-step process that solidified the foundation of the scope of agency power.

A Substantive Character: Hard Look Considerations

Instead of having such a character extend from the foundation of law to issues of substance, the court usually separates out such questions and takes a hard look at them. This is accomplished by the use of a substantive review approach that requires agencies to meet a high, rational threshold. In many ways, the court is doing this to ensure agencies are performing high-level research to justify their own conclusions. This helps legitimize the substance of administrative action. It also affirms a rational orientation or what Alasdair MacIntyre (2008) calls a bureaucratic character. In particular, he refers to such an entity as encapsulating a social role to “provide a culture with its moral definitions” (MacIntyre, 2008, p. 31). The expectation is that a bureaucratic character represents the value of effectiveness expressed through managerial competence. However, this use of a character couched in a dramatic setting does not diminish the perspective that sees character as tied to cultivating fundamental dispositions. In fact, the capacity to achieve the value of effectiveness is partly predicated on the development of an ethos that strives to search for the rational through scientific means. The substance of what is produced from such an outlook is reliable and unbiased. Equipped with the potential of having objective facts devoid of subjective values, agencies help run the affairs of state with a managerial mindset that relies upon scientific qualities to achieve public mandates. The aspiration to form such a steady set of dispositions provides them with the “means for imparting order, structure, and regularity to society” (Wolin, 2004, p. 326).

The ability to develop such a substantive character, however, is not seamless. Agencies exist in a constitutional and political environment that demands that they accommodate their political masters and public pressure. This reality allows a good deal of administrative character to be shaped and molded by the three branches of government (Newbold, 2010; Rosenbloom, 2000). It also grants agencies a fair amount of autonomy that allows them to become political actors (Rohr, 1986; Spicer, 2010). Because of these political forces, they often cannot be left up to their own devices to ensure that they mold these distinctive traits.

To ensure that they do, the courts provided oversight of whether agencies have met the requirements in the APA of 1946, which established that administrative action should not be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” They did this by reviewing the substance of administrative action against stringent standards (Breyer, 1986; P. J. Cooper, 2007; Sunstein, 1983). The basic outline of requiring rational outcomes was determined when courts linked arbitrary and capricious concerns with a hard look standard. In Greater Boston Television Corp v. Federal Communication Commission (1970), the D.C. Circuit Court of Appeals established the rudiments of the hard look doctrine in deciding whether the Federal Communication Commission (FCC) was in error by denying a TV license to WHDH, Inc., Judge Harold Leventhal declared that “the court will uphold its findings” if it is “satisfied that the agency has taken a hard look at the issues with the use of reasons and standards” (Boston Television Corp v. FCC, 1970). Reasoned decision-making informed by evidence prevented decisions from being arbitrary and bestowed legitimacy on the substance of administrative outcomes. In effect, a reasoned decision had to be “supported by substantial evidence” (Boston Television Corp v. FCC, 1970).

To ensure a high standard of rationality, the Supreme Court also began to look at the substance of decisions and how they were made. It proceeded down this route by looking into whether the Department of Transportation (DOT) could construct a highway through a park in Memphis, TN (Citizens to Preserve Overton Park v. Volpe, 1971). Writing for the majority, Justice Thurgood Marshall ruled that an investigation needed to take place to determine whether the DOT upheld its rational tendencies when making the decision of where to place the highway, even though statutory authority only required administrators to act on a feasible and prudent standard. To prevent them from staking claims in assertions that were not properly established and to guide the district court in how to review administrative action, Marshall clarified, if not redefined, the meaning of feasible and prudent as searching and careful (P. J. Cooper, 2007). Administrators were expected to show how their findings led to particular decisions. The means−ends connection had to be rationally established. This reinforced the expectation that agencies develop sufficient evidence before acting. This decision would go a long way in reinforcing the character of administration as it not only prohibited post hoc rationalizations but also demanded that agencies base their decisions in facts.

The trend of careful judicial oversight that favored achieving reasonable evidence continued in Industrial Union Department v. American Petroleum Institute (1980). In particular, the Occupational Safety and Health Administration (OSHA) was mandated to have a threshold finding before it could change benzene levels. Administrative action had to be “supported by a body of reputable scientific thought” (Industrial Union Department v. American Petroleum Institute, 1980). The requirement to satisfy such a high standard imposed on agencies the requirement to produce scientific findings to satisfy this threshold. In essence, the court endorsed an expectation that they use scientific means to achieve an administrative character that should be rooted in reason. The pivot toward requiring administrators to produce such outcomes did not end there. In Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co. (1983), the court directly ruled that the hard look doctrine was to be weighed against an arbitrary and capricious standard. Administrative decisions were to be reviewed against rationalist mandates that showed a clear clean connection between means and ends. This level of scrutiny ensured that agencies “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made’” (Motor Vehicle v. State Farm, 1983). A reasoned rule was equated with an agency being able to gather substantial, if not scientific, evidence that justified a particular act.

This level of review provided agencies with expectations that they would be judged against a rational ethos. Jody Freeman and Adrian Vermeule (2007) called this trend “expertise-forcing” (p. 64). Agencies could not only be compelled to act under certain circumstances, but their actions were to be weighed under strict standards of rationality. The compulsion to adhere to such a character was encapsulated in Massachusetts v. EPA (2007). The majority opinion, authored by Justice John Paul Stevens, ruled that agencies such as the EPA would now need to provide reasons for refusing to make a new rule. This expertise forcing was also accompanied by compelling agencies to act when they discovered an endangerment finding. The detection of pollutants required administrators to act. The EPA did not have the statutory authority to make a reasonable interpretation. The court furnished the proper interpretation, and then decreed action. In doing so, the court not only affirmed the principles of State Farm, but updated it for a “new generation” by establishing that “the denial of a petition requesting regulation to be reviewable” (Freeman & Vermeule, 2007, p. 54). Justification of administrative substance would trickle down to even the denial of rulemaking requests. In essence, the hard look orientation was not just confined to substance; its reach extended to giving agencies a proper check before deferring to them on how they allocate scarce resources. In scaling back the doctrine of nonreviewability found in Chaney to questions of enforcement, the court was curtailing deference under the auspices of the hard look orientation and strengthening its ability to shape administrative character on rational grounds.

Resulting from the push of the hard look doctrine to legitimize administrative action by helping form a robust character rooted in rationality, administrative legitimacy mainly rested on a value neutral orientation that was divorced from democratic sensibilities. Relying on scientific means to authorize decisions produced a problem of ossification, which refers to the drastic slowdown in the capacity of agencies to make rules or even the option to change (McGarity, 1992; Pierce, 1995, 2012; Wagner, Barnes, & Peters, 2011). The aftermath of such an approach contributed to the fact that it took OSHA in most cases at least 5 years to issue health standards while the Federal Trade Commission (FTC) had an “average time to completion [of] 5 1/3 years” (McGarity, 1992, p. 1390). Excessive burden resulting from these judicial interventions was also a significant consideration in why the National Highway Transportation and Safety Administration (NHTSA) stopped pursuing rulemaking as a way to enhance vehicle safety (Mashaw & Harfst, 1987). When looking at the full rulemaking lifecycle, the EPA “published a proposed rule a little less than four years, on average, after initiating the rulemaking” (Wagner et al., 2011, p. 144). It would then take approximately 18 additional months for a final rule to be published. Often, the majority of these rules would face more challenges, extending the time that agencies had to devote to the substance of their decisions.

This lengthy timetable, however, was not just simply confined to the NHTSA, OSHA, FTC, or the EPA. These problems emerged in agencies engaged in rulemaking because courts have applied “a judicial model to what Congress conceived as a legislative process” (Beermann & Lawson, 2007, p. 901). According to Emily Meazell (2009), this judicial model caused a significant amount of value displacement, because “scientific values—rather than those of the legal system—are in control” (p. 240). This led to inertia because administrators “must justify their decisions in expert-driven, not political, terms if they wish to convince courts that reasoned decisionmaking has occurred” (Watts, 2009, p. 22). And when courts finally review the connection between means and ends, they reject any rule that

does not adequately “foreshadow” the final rule the agency issues, or that does not identify every study or other data source the agency relies on in the statement of basis and purpose that an agency must incorporate into every final rule. (Pierce, 2012, p. 1497)

This led administrative acts to be both very expensive and laborious at the point of making rules and also at the point of review (Pierce, 1988).

Yet, critics both challenged and added a bit of nuance to the ossification thesis (Jordan, 2000; Seidenfeld, 2009; Yackee & Yackee, 2012). On who is responsible, ossification could not be completely blamed on the courts. Other sources such as the Office of Information and Regulatory Affairs, executive orders, and statutory obligations played a part in slowing down agency rulemaking (Nou, 2013; West & Cooper, 1989). Although additional factors impacted the ossification problem, Thomas McGarity (1992) argued that the court’s use of the arbitrary and capricious standard cannot be discounted as having played a critical role. On the time it takes to establish a binding rule, Jason Yackee and Susan Yackee (2012) argued some rules from proposal to final issue only took a year or two to complete in the DOI. Although Richard Pierce (2012) pointed out that they did not consider the full lifecycle of rulemaking by taking into account the pre- and post-periods of the development of administrative substance, they showed how rulemaking in some instances was streamlined. On the judicial review angle, Miles and Sunstein (2008) showed that agency decisions in the EPA and the National Labor Relations Board were validated 64% of the time when they were reviewed under the hard look standard. And when decisions were invalidated, William Jordan (2000) examined, at least in the D.C. appellate court, how agencies responded in a timely manner after judicial invalidation. Even though these accounts offered a more tempered approach to the ossification problem, they did not undo the general ethos that administrators often have to spend years in creating, justifying, and defending their actions. In fact, these accounts strengthened the view that the hard look doctrine reinforced a particular type of character that privileges rational priorities.

A Soft Look in Substantive Review

The bolstering of such an ethos was not completely beneficial. The aftermath was a hard look orientation that did not fully grasp the breadth and depth of administrative character. In particular, the failure of the hard look doctrine to consider other administrative tendencies such as the role of politics partially stultified the formation of a more holistic, authentic, and nuanced character (Wagner, 1995). What was needed, according to some scholars, was a consideration of a softer approach to substantive review that retains the force of rationality and considers other important attributes to assist in sanctioning the means and outcomes of agency action (Miles & Sunstein, 2008; Pierce, 1995). The capacity for the court to steer and develop administrative character in a slightly different direction requires not only a reconsideration of routinely linking a hard look orientation with arbitrary and capricious standards but also a need to examine how a deferential approach can serve as a footing for substantive decisions.

Instead of using a heightened standard, the court can tie the ethos of Chevron into the space of administrative substance. Although there is merit in treating questions of law and substance in separate categories, this does not mean that they are so alien that no overlap exists between them. In many ways, this distinction can be reordered to more explicitly allow the ethos of law to influence the ethos of substance. Moving in this direction, the court embraced a softer look in substantive review concerning how the FCC treated indecent material on network television. The sparks that led to such an approach came about when Cher derided her critics with a “so fuck ’em” expletive during the 2002 Billboard Music Awards. The following year at the Billboard Music Awards Nichole Richie also dropped two expletives. U2 lead singer Bono contributed to this trend by making a celebratory salute that his winning was “fucking brilliant” during the 2003 Golden Globes. Under FCC guidelines, fleeting and nonliteral expletives tended not to be indecent, especially when used during live programming. These standards fit a context-based system that the FCC used in determining indecency, which permitted administrators to draw and weigh upon what was immediately before them. A policy statement issued in 2001 clarified this, reiterating the point about how “no single factor . . . generally provides for an indecency finding” (FCC v. Fox, 2009). Even though no single factor existed, the FCC created contextual cues such as the use of fleeting and nonliteral obscenities were given the benefit of the doubt when analyzing what decision to make.

In light of what happened at these award shows, the FCC decided to alter its criteria in 2004, pointing out that both fleeting and nonliteral expletives could now be declared indecent, even during live programming. It justified this change on the grounds that fleeting expletives caused citizens to bear the first blow and that nonliteral expletives still carried a tremendous amount of power. Although obscenities could be used in a variety of nonliteral ways, they still drew their power from the literal meaning. Furthermore, the use of such language may not only harm children but could also encourage them to adopt such language patterns (FCC v. Fox, 2009). However, the Commission attempted not just to issue a blanket order. It further clarified that news-related programming and artistic integrity would be considered as contextual cues to help the FCC in determining whether fleeting and nonliteral expletives were indecent material (FCC v. Fox, 2012). Although the FCC adopted a policy that favored treating fleeting and nonliteral expletives as indecent, it could still adjust its finding based on certain general parameters and specific content. The use of such a system allowed the FCC to value context and change. In a slightly different example of how this works, the FCC could make a clear distinction between acceptable violence in Saving Private Ryan and ill-advised expletives during the Golden Globes (FCC v. Fox, 2009). One show was targeted to a mature audience while another one was produced to attract a broad range of viewers, including children. The refusal to create a uniform rule with no nuance provided the agency with discretion.

In FCC v. Fox (2009), the court declared that the FCC’s substantive change regarding fleeting and nonliteral expletives was legitimate. It did so by not drawing on hard look characteristics, but by using considerations found in the ethos of Chevron that granted agencies the ability to be flexible. Instead of using a high threshold that could only be met through the marshaling of scientific evidence, the court adjusted its expectations. It declared that changes to an existing policy could rest on the fact that the “agency believes it to be better” (FCC v. Fox, 2009). It did not have to show that the reasons for “new policy are better than the reasons for the old one” (FCC v. Fox, 2009). In some cases, the court argued that “there are some propositions for which scant empirical evidence can be marshaled” and that neither the APA nor the Constitution demanded scientific evidence be used (FCC v. Fox, 2009). This did not mean that justifications did not need to be offered. It was adequate that the FCC articulated concerns about first blow problems, the power of nonliteral expletives, and potential harm to children. The use of reasonable justifications provided agencies the means to draw on a wider pool of knowledge.

The flexibility offered to agencies in justifying their decisions was coupled with a possibility to be receptive to changing political pressures as also outlined in Chevron. Administrative substance in relation to indecency did not exist in a vacuum. In his concurring opinion, Scalia noted that one critical reason why the FCC revised its standards was because of “significant political pressure from Congress” (FCC v. Fox, 2009). In a democratic society, politics should serve as a way to direct administrative affairs. In the dissent of State Farm, then Justice William Rehnquist took the stand that politics serve as “a perfectly reasonable basis for” agency change (Motor Vehicle v. State Farm, 1983). The principle of responsiveness provided justification to act based on democratic values. In this case, Scalia took a slightly different track, but still upheld this ideal. He noted that “independent agencies are sheltered not from politics but from the President, and it has often been observed that their freedom from presidential oversight (and protection) has simply been replaced by increased subservience to congressional direction” (FCC v. Fox, 2009). The reliance on expertise was not to be the sole source of authorization for administrative substance. It could be supplemented with additional factors such as the political process.

In dealing with a multitude of factors, agencies must try to achieve the proper balance between precedence, political pressures, statutory authority, and confronting future issues. They could do this by being given an element of deference to re-constitute their mission over time (FCC v. Fox, 2012). However, this did not mean that expectations expressed by agencies through administrative decrees should be unnecessarily vague (FCC v. Fox, 2012). If the change to consider fleeting and nonliteral expletives as indecent did not grant enough consideration to context, clarity, notice, or it was no longer suitable, then the FCC had the power to reconsider those guidelines. In fact, the FCC issued a public notice for comments in 2013 on whether it should adhere to current standards or restore the previous guidelines. The room to have leeway not only prevents agency action from being craved in stone, but it allows for administrators to steadily and reliably weigh the prudence of their decisions.

What the court did was present a lucid argument that stood in contrast to the narrowing reasoning that encapsulated Judge Feldman’s decision in Hornbeck. Instead of establishing a threshold that could only be met by scientific findings, the court allowed for agencies to make adjustments without having to follow onerous restrictions. Means and ends could be brought together through reasonable arguments. Furthermore, the context of the situation was not cast aside as in Hornbeck, but legitimately used. Because of this, the substance the FCC produced was not bound by excessive expectations that would hamper its ability to adjust to change. As a whole, the general ethos that was captured in Fox harkened back to Chevron’s privileging of deference, process, flexibility, and responsiveness. Even though this character was often not the primary mode of authorization with substantive questions, the court provided a glimpse of how administrative substance could be sanctioned and shaped by such an ethos.

Conclusion

The ability to change is a crucial variable in achieving a type of character that can be reasonable, receptive, and responsive. Agencies are expected to provide meaningful justifications, reason in a broad way that allows them to take into account a diverse array of information, and be mindful of political realities. The ruling in Chevron provides the means for the court to structure administrative character along these dispositions. Although this ethos is tied to the legal ledger, it can also be leveraged in the managerial realm that deals with substance. To do this, the sharp distinction between law and substance needs to be eroded. The splintering of administrative character can be rethought. Instead of putting each aspect of administration in separate columns, the law as expressed in constitutional mandate and statutory requirement should provide the basis for the foundation of administration. Legitimacy rests on staying within the confines of a legal structure (Lynn, 2009; Rohr, 1986; Rosenbloom, 2000). This foundation does not translate into creating administrative entities that stagnate, lose touch with political dynamics, or fail to adjust. The law under Chevron provides agencies with the character to both comply and give meaning to the law on prudential concerns.

The character embodied in Chevron, however, does not have to be limited to questions of law. This ethos can protrude from the foundation to also influence managerial substance. A substantive character that tends to favor the rational does not need to be discarded, but tempered in a way to consider the interdisciplinary nature of public problems. Legitimacy can still rest on sound evidence gathered in a searching and careful manner. In fact, this also does not mean that questions of substance should not influence questions of law. It should just be balanced by privileging the confines of the law, being wary of ossification, and allowing considerations of perspective. In this regard, legitimacy is not necessarily garnered by the achievement of a high threshold of rationality. It requires yielding to and incorporating other process factors that are privileged in a democratizing constitutional republic.

The extension of such an ethos can create administrative sensibilities that have the capacity to handle complex problems. This ability to respond stands in conjunction with the need to adapt to market forces and democratic pressures. Administration can no longer be locked into standards that drastically limit administrative mobility. The emergence of governance empowered by movements such as reinventing government calls for an administrative character that can maneuver (Kettl, 2002). However, the ability to adjust does not require abandoning the law. In fact, the court has alleviated the burden from conceiving the law as too static. Instead, it has shaped a dynamic view of the law by establishing a Chevron ethos that embodies prudential considerations. Deference to choose, weighing general factors with specific challenges, accepting the power of politics, and a willingness to change provide agencies with a set of dispositions that enable action to be expressed in a positive manner.

Judicial insight not only provides administrators with the flexibility to meet complex challenges, but it also shows an example of prudence itself. It does this by doing two things. First, judges mark limits on their own judicial oversight. They are not proclaiming from a distance the proper way to resolve a situation. These rulings place constraints on judicial hubris and overreach. Second, judges also mark limits on administrative action. A careful review of administrative interpretation of its statutory authority inhibits administrative aggrandizement. Ensuring agencies stay within the scope of authority granted to them by Congress creates a set of conditions that discourages an excess of administrative power. In many ways, prudence has come to take on this very meaning. Action should be conservative and cautious. And, there is much value in this understanding, especially considering the size of the administrative state.

However, this is only a partial understanding of prudence. The court also recognizes that prudence carries with it a certain degree of robustness. To deal with expected nicks, unexpected scratches, and underlying cracks, the court has granted agencies a full array of options to handle not only apparent problems but also deeper ones that are difficult to ascertain. This is what the hard look doctrine failed to achieve. Even though this mode of rationality grants legitimacy resulting from the power of science, it also began to cripple agencies by relying too heavily on a rational perspective. The amount of evidence required to make changes discouraged agencies from freely thinking to confront evolving circumstances. This turned administrative character into an orientation that is too myopic in its reasoning or too ossified in its content. When problems are multifaceted, administrative character must be given room to explore for options, and see how general guidelines can be aligned with present conditions.

This is why the Chevron and Fox worldviews are needed. Instead of merely providing limitations on administration capabilities, they encourage a prudential engagement process that captures the political, the scientific, and the historical. Considerations of context and contingencies coupled with a recognition of the past and future grant a richer understanding of public problems. This approach challenges the idea that the achievement of the public interest can be simply reduced to a rational character. However, this is not enough. They must also be able to weigh such knowledge. This provides a constant engagement with the process, along with the realization that a different solution might be needed next time. The responsibility of such flexibility magnifies the importance of administrative character rooted in prudence.