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6.pptx
Discretion
Administrative Discretion
“Power of an administrator to make significant decisions which have the force of law, directly or indirectly, and that are not specifically mandated by the Constitution, statutes, or other sources of black letter law”
- decisions having the force of law left to administrator’s judgment
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In basic pragmatic terms, this is a dilemma.
Too much discretion creates uncertainty and potential unfairness.
Too little discretion can create rigidity and potential unfairness.
Common visible examples of discretion
- Prosecutorial
Investigation
Opting for informal processes
Discretion always has constitutional and statutory limits
- Due process
- “ultra vires”
- reasonableness
Discretion
Perspectives on discretion:
Administrative Imperatives:
expertise
flexibility
efficiency
Court interests:
due process
equal protection
substantial justice
BASIC CHALLENGE: Rule of law verse discretion
Examples of Discretionary Cases
SEC v. Sloan (1978): Canadian Javelin trading suspended
Wisconsin v. City of New York (1996): discretion in determining counting methods by U.S. Census for policy
Department of Commerce v. US House of Representatives (1999): no discretion in sampling for apportionment
Dep’t of Commerce v. New York(2019): the Trump administration’s justification for including citizenship question on census did not have adequate rationale
Discretion
Court generally defers to claims of administrative expertise
Key cases on deference:
Chevron v. NRDC (1984): deference to agency statutory interpretation when law is not clear.
re “stationary sources”
Kisor v Wilkie(2020) affirmed core of Auer(1997): courts should defer to agency interpretations of vague rules.
Remedies for Abuses of Discretion
Kenneth Culp Davis: structure discretion
Most important : more rulemaking to reduce overall breadth of discretion within areas of significant repetitive decision-making
Also:
- openness, publicizing policies and record keeping: IRS is particularly notable in inconsistency and secrecy
- dispute resolution procedures, adjudication
- using lawyers preventatively
- judicial review
legislative and executive oversight
- ombudsman
Future of Discretion: Challenges to the “administrative state”
Chemerinsky: Three cases from 2019 reveal opinions that could erode administrative discretion if they become majority views. And Kavanaugh is just getting started.
Auer deference, strong minority views
Future of Discretion: Challenges to the “administrative state”
Gundy v. US (2019): strong minority challenges legislative delegation of power to decide who to apply specific law to, echoes of Schector(1936)
Kisor v. Wilkie(2019): weakened Auer deference, strong minority views
Dep’t of Commerce v. New York(2019): odd case out, anti-state minority said there should be deference to agency
