DISCRETION IN DECISION MAKING

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.