Advancing a Free Society

Executive Discretion on Steroids

Wednesday, May 11, 2011

One of the greatest challenges of government is to find ways to navigate this perpetual constitutional dilemma: government officials must have enough power to enforce the law (by the use of criminal sanctions, if necessary). Yet, every expansion of power that is needed for the efficient enforcement of good laws opens the door to abuse of discretionary government powers.

Controlling discretion is a serious problem, even in a small government regime that seeks to emulate the nineteenth century vision of the night watchman state. The chief function of such a state is to ensure that individuals do not trespass on the rights of others as they go about their business. But in a government that takes a capacious view of its powers, the problem of discretion becomes ever more acute.

In dealing with the abuse of power, it is important to recall that each branch of government has its own defined responsibilities. On the legislative side, clear statutory commands should give fair notice to individuals, allowing them to conform their conduct to the dictates of the law. In the executive branch, the great challenge is to install managerial safeguards ensuring that the immense reservoir of discretion accorded to public officials is exercised in consistent and determinate ways. On the judicial front, it is critical to develop procedures that provide an individual with sufficient notice of charges, and an opportunity for a hearing before an impartial decision-maker prior to being subject to any criminal or civil sanctions.

One of my constant concerns with the Obama administration is that its vision of executive power means that it has not recognized the need to rein in its discretion. Quite the contrary, in a variety of areas it seems only too eager to use its discretion to maximum advantage, often to support its own political agenda. That is the chief charge against the way Obama’s National Labor Relations Board has instituted litigation against The Boeing Company for imagined unfair labor practices when the company decided to open up its new assembly plants in management-friendly South Carolina.

Continue reading Richard Epstein at our sister site Defining Ideas…