Discretion in Decision Making

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Discretion in Decision Making

Discretion is the power or right to make official decisions using reason and judgment to choose from among acceptable alternatives.

Legislatures, the president and the governors of the various states, trial and appellate judges, and administrative agencies are among the public officers and offices charged with making discretionary decisions in the discharge of public duties. All discretionary decisions made are subject to some kind of review and are also subject to reversal or modification if there has been an Abuse of Discretion.

An abuse of discretion occurs when a decision is not an acceptable alternative. The decision may be unacceptable because it is logically unsound, because it is Arbitrary and clearly not supported by the facts at hand, or because it is explicitly prohibited by a statute or Rule of Law.

Discretion in decision making can be viewed from the perspective of the flexibility and choices granted to the decision maker based on the decision being made. Only the Constitution, through judicial enforcement, can limit discretionary decision making by legislative bodies to pass laws. Great flexibility is granted to the Executive Branch in the area of foreign relations decision making. Statutes and prior judicial decisions limit the flexibility and discretion of a judge in a court of law. Moreover, Congress has granted broad decision-making authority to administrative agencies and their administrators, giving them great flexibility to make decisions within their area of concern.

Legislative Discretion

Legislatures have very broad discretion to create and pass laws that prohibit, regulate, and encourage a wide variety of activities. In Article I, Section 8, of the U.S. Constitution, Congress is empowered to "make all Laws which shall be necessary and proper" for carrying out its enumerated powers. Most state legislatures are empowered by similar language from their state constitution. An example of a proper exercise of legislative discretion is to make Stalking a crime and to make that crime punishable by fines or imprisonment.

The discretion of legislatures is also limited by the U.S. and state constitutions. A state may not pass a statute that allows the police to search any person's residence at any time for any reason, because that statute would clearly violate the U.S. Constitution's Fourth Amendment protection against unreasonable searches and seizures.

Executive Discretion

Executive discretion, like that vested in the president by Article II of the U.S. Constitution, is most evident in the area of foreign affairs: the president is the commander in chief of all the military forces and also has the power to make treaties with other countries. If Congress is silent on a particular issue—that is, if Congress has not passed a specific statute or resolution concerning that issue—then the president has broad discretion to act. This arrangement is particularly relevant in the area of foreign policy during war or other military action, when decisions must be made quickly in response to rapidly changing circumstances.

One improper exercise of executive discretion that is almost always reversed by reviewing courts is Impoundment, whereby a president places in reserve a sum of money appropriated by Congress for a particular purpose, effectively blocking that appropriation. Courts have routinely held that the president has no implied power to take such action. Implied powers are those held by the president but not granted expressly by statute, regulation, or constitution. The act of impoundment, then, constitutes an abuse of discretion by the executive branch.

Judicial Discretion

Judicial discretion is a very broad concept because of the different kinds of decisions made by judges and because of the different limits placed on those decisions. Article III, Section 2, of the U.S. Constitution grants the judiciary broad power, which extends "to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made." Judges' decisions must be made based on the "rule of law," which, in the United States, derives not only from statutes passed by Congress but also from the tenets of the Constitution. In addition, Common Law, or judge-made law, provides limits based on the principle of Stare Decisis, which holds that a court's decision in a particular case must comport with the rules of law as they have been determined by that court or by other, higher-level courts, in previous cases. Legal conclusions that do not fit within the prescribed limits of both statutory and common law may be overturned by a reviewing court if that court determines that the conclusions were an abuse of judicial discretion.

At one time, the sentencing of those convicted of crimes was almost entirely within the discretion of judges. Judges could take into account various mitigating factors (circumstances reducing the degree of blame or fault attributed to the offender) and craft a punishment that most appropriately fit the crime. For example, a first-time petty offender convicted of shoplifting might be sentenced to Parole and community service.

With the implementation of Federal Sentencing Guidelines and with mandatory minimum sentencing legislation, which passed in both Congress and the states, judges no longer had the broad latitude to make the sentence fit the crime and the defendant. In some states, first-time offenders have been sent to jail for life for the possession of large amounts of controlled substances. Many federal judges must incarcerate parole violators for minor parole violations because the guidelines specifically direct them to and severely limit their sentencing choices. A judge's failure to abide by the sentencing guidelines in issuing a sentence would constitute an abuse of judicial discretion.

Administrative Agency Discretion

Legislative, executive, and judicial discretion in decision making is limited within the structure of the three branches of the U.S. government as established in the Constitution. Each branch is subject to the influence, review, and even rejection of certain decisions. Administrative agencies, granted authority by Congress to administer specific government programs and areas of concern, operate outside this tripartite system, and many decisions made by administrative agencies are protected from review. For this reason, the administrative branches of federal and state governments have often been referred to as the headless fourth branch of government.

The U.S. Constitution does not expressly grant administrative authority. However, Congress may create administrative agencies as an extension of its authority to make laws that are necessary and proper, to help it execute its powers (U.S. Const. art. I). The president may appoint the heads of these agencies under a general grant of authority to appoint "public Ministers and Consuls" and "all other Officers of the United States, whose Appointments are not herein otherwise provided for" (U.S. Const. art. II). The judiciary, under its very broad grant of authority to hear all cases in law and equity, has a right, in some circumstances, to review and overturn administrative decisions (U.S. Const. art. III).

Administrative agencies, like the social security administration and the Equal Employment Opportunity Commission (EEOC), and the Bureau of Citizen and Immigration Services (BCIS), formerly the Immigration and Naturalization Service (INS), make both rules and adjudicative decisions, which means that they not only promulgate regulations but also decide conflicts dealing with their area of concern.

For example, the Social Security Administration promulgates regulations concerning the provision of income for totally disabled people and also decides who is or is not disabled. The EEOC promulgates regulations and guidance dealing with Sexual Harassment and also decides whether Probable Cause exists to pursue a particular claim of harassment. (Probable cause, which is a reasonable basis to believe the facts alleged, must be established before litigation can commence.) The BCIS not only helps to set immigration quotas but also makes individual decisions regarding deportation.

To review an agency decision under the standard of abuse of discretion, courts must follow a three-part analysis. First, courts must look to the legislation passed by Congress that gave the decision-making authority to the particular agency and determine if the administrator acted within the limits of that authority. Second, courts must determine if a clear error of judgment has occurred. Without clear error, a court cannot substitute its own judgment; if it did so, the court would itself commit an abuse of discretion. Third, courts must determine whether the administrator followed the procedural requirements.

Courts reviewing administrative decisions for abuse of discretion give great deference to the administrator or agency, who not only is an expert in the area of concern but also had access to all the facts that influenced the decision. This "hands-off" approach gives administrative agencies the opportunity to execute the authority granted them by Congress efficiently and effectively.

An administrative decision that is difficult to reverse or challenge is that made by the Board of Immigration Appeals to uphold an immigration judge's decision to deport an alien. Once a deportation decision is made and upheld, the alien can seek to have the attorney general reverse it. Should the attorney general uphold the deportation, a court reviewing this discretionary decision will have limited opportunity to challenge it, because the Board of Immigration Appeals clearly has authority to make the decision in the first place. The alien must show either failure to follow procedure or clear error of judgment on the part of the board. Deportation challenges are common, but successful challenges are rare because the great discretion afforded to the BCIS makes an abuse of discretion extremely difficult to prove.

Further readings

Davis, Kenneth C. 1971. Discretionary Justice: A Preliminary Inquiry. Champaign, Ill.: Univ. of Illinois.

Feinstein, Mary S. 1986. "American Cetacean Society v. Baldrige: Executive Agreements and the Constitutional Limits of Executive Branch Discretion in American Foreign Policy." Brooklyn Journal of International Law 12.

Goldstein, Abraham S. 1981. The Passive Judiciary: Prosecutorial Discretion and the Guilty Plea. Baton Rouge, La.: Louisiana State Univ. Press.

Heyman, Michael G. 1994."Judicial Review of Discretionary Immigration Decisionmaking." San Diego Law Review 31.

Koch, Charles H. 1986. "Judicial Review of Administrative Discretion." George Washington Law Review 54.

Maranville, Deborah. 1986. "Nonacquiescence: Outlaw Agencies, Imperial Courts, and the Perils of Pluralism." Vanderbilt Law Review 39.

Mills, Linda G. 1999. A Penchant for Prejudice: Unraveling Bias in Judicial Decision Making. Ann Arbor: Univ. of Michigan Press.

Neuren, Cathy S. 1984. "Addressing the Resurgence of Presidential Budgetmaking Initiative: A Proposal to Reform the Impoundment Control Act of 1974." Texas Law Review 63.

Paquette, J., and D. Allison. 1997. "Decision-Making and Discretion: The Agony and Ecstasy of Law and Administration." Education & Law Journal 8 (September): 161–81.

Shapiro, Sidney A., and Robert L. Glicksman. 1988. "Congress, the Supreme Court, and the Quiet Revolution in Administrative Law." Duke Law Journal.

Vila, Marisa Iglesias. 2001. Facing Judicial Discretion: Legal Knowledge and Right Answers Revisited. Dordrecht, Netherlands, Boston: Kluwer Academic.

Cross-references

Abuse of Discretion; Discovery.

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