Why Judicial Review Fails: Organizations, Politics, and the Problem of Auditing Executive Discretion

Every day executive branch officials make thousands of decisions affecting our security and welfare. Homeland security officials screen tens of thousands of people at the border. They decide whose name gets on government “no fly lists.” Agencies freeze suspected terrorist assets, choose what companies to inspect for environmental violations, and decide whom to prosecute. This article describes how judicial review predictably and systematically fails to prevent abuse and promote organizational learning when government officials make many such choices using their discretion to target individuals or groups. It then proposes the use of quasi-judicial audits of executive discretion as a remedy. While it is rare that discretionary decisions are entirely immune from some kind of judicial review, courts’ role is often so circumscribed or deferential that the probability of uncovering problems almost certainly falls close to zero. The resulting amount of executive discretion carries considerable risks along with rewards. Some decisions no doubt benefit from the speed and accountability that results from limiting judicial intervention. Yet judicial review’s evisceration probably makes it easier for some government officials to subtly manipulate their discretion to promote appealing political impressions, for others to engage in outright malfeasance, and for still other (more virtuous) officials to simply fail to learn from their mistakes – whether these arise in deciding who to charge with a federal crime, who to designate as an enemy combatant, or how much money to freeze in a suspicious charity’s account. The reliance on judicial review to manage discretion makes it hard to address these concerns in part because courts routinely define much of their work in terms of applying the same standard of deference to every case in a particular class, making it difficult to increase the stringency of review in some policy domains without making the costs allegedly prohibitive. As a conceptual alternative, I propose a framework for systematically auditing samples of discretionary decisions and making those results public. Audits help sever the connection between the perceived costs of encroaching on discretion and the stringency of review, and avoid the potentially distorted picture of bureaucratic activity created by a litigation-driven process. These properties make audits a promising supplement to judicial review in those instances where it is plausible to believe that more could be learned from incisively studying a subset of cases instead of superficially reviewing more of them. Despite their potential value, such audits are almost never done by existing federal audit bureaucracies (the congressional Government Accountability Office and the department-specific Inspector General Offices), nor does the legislature seem to do them itself in connection with oversight hearings. I conclude by discussing some of the political and bureaucratic dynamics working against these audits and suggesting how they may be weakened

Crisis Bureaucracy: Homeland Security and the Political Design of Legal Mandates

Policymakers fight over bureaucratic structure because it helps shape the legal interpretations and regulatory decisions of agencies through which modern governments operate. In this article, we update positive political theories of bureaucratic structure to encompass two new issues with important implications for lawyers and political scientists: the implications of legislative responses to a crisis, and the uncertainty surrounding major bureaucratic reorganizations. The resulting perspective affords a better understanding of how agencies interpret their legal mandates and deploy their administrative discretion. We apply the theory to the creation of the Department of Homeland Security. Two principal questions surrounding this creation are (1) why the president changed from opposing the development of a new department to supporting it and (2) why his plan for such a department was far beyond the scope of any other existing proposal. We argue that the president changed his mind in part because he did not want to be on the losing side of a major legislative battle. But more importantly, the president supported the massive new department in part to further domestic policy priorities unrelated to homeland security. By moving a large set of agencies within the department and instilling them with new homeland security responsibilities without additional budgets, the president forced these agencies to move resources out of their legacy mandates. Perversely, these goals appear to have been accomplished at the expense of homeland security. Finally, we briefly discuss more general implications of our perspective: first, previous reorganizations (such as FDR’s creation of a Federal Security Agency and Carter’s creation of an Energy Department) also seem to reflect presidential efforts to enhance their control of administrative functions – including some not directly related to the stated purpose of the reorganization; and, second, our analysis raises questions about some of the most often-asserted justifications for judicial deference to agency legal interpretations

Auditing Executive Discretion

Executive branch officials routinely make thousands of decisions affecting public security and welfare. While it is rare that such discretionary decisions are entirely immune from some kind of judicial review, courts’ role is often so circumscribed or deferential that in some domains the probability of uncovering problems through such review almost certainly falls close to zero. The resulting amount of executive discretion carries considerable risks along with rewards. Some discretionary decisions undoubtedly benefit from the speed and flexibility that results from limiting judicial review. Yet judicial review’s evisceration as a tool to restrain certain forms of discretion also makes it easier for government officials to subtly manipulate their discretion to promote appealing political impressions, for others to engage in outright malfeasance, and for still other (more virtuous) officials to simply fail to learn from their mistakes. Reliance on judicial review to generate information about executive discretion makes it difficult to address these concerns in part because courts routinely define much of their work in terms of applying the same standard of deference to every potential case in a particular class, making it difficult to increase the stringency of review in some policy domains without making the costs allegedly prohibitive. When deciding how stringently to review a discretionary decision – whether a prosecutorial charging decision, an administrative compliance order, or an enemy combatant designation – judges almost invariably mull the potential consequences of their choice on all future executive decisions of that kind. As a conceptual alternative, this article develops a framework akin to that employed by courts engaged in sample adjudication for class action and government fraud cases. It relies on the possibility of systematically auditing samples of discretionary decisions and making those results public. Although the efficacy of such a system depends on the political context and details of its institutional design, audits have the potential to sever the connection between the perceived costs of encroaching on discretion and the stringency of review. They also avoid the potentially distorted picture of bureaucratic activity created by a litigation-driven process. Despite their potential value, such audits are nonetheless almost never undertaken by existing federal audit bureaucracies (the Government Accountability Office and the department-specific Inspector General Offices), nor does the legislature seem to conduct them in connection with oversight hearings. I conclude by discussing the political and bureaucratic dynamics working against these audits and suggesting how they may be weakened

Refugee Security and the Organizational Logic of Legal Mandates

While the refugee protection system is one of international law’s most recognizable features, it routinely places massive numbers of refugees in camps in the developing world, where they face chronic threats to their physical security from crime and disorder, coercion, and military attacks. Yet key actors responsible for refugee protection, including host states, advanced industrialized countries, and the United Nations High Commissioner for Refugees (UNHCR), generally have failed to prioritize refugee security. This article asks: (1) Why? (2) What have been the consequences? (3) And what do these answers reveal about how organizations carry out legal mandates in complicated political environments? Conventional wisdom holds that security only recently became a major problem in the refugee protection system, that UNHCR’s role in enhancing refugees’ physical security is limited by the agency’s legal mandate and practical constraints, and that problems of violence and physical security are largely episodic concerns affecting small numbers in discrete refugee populations. Drawing on historical documents, interviews, data on budgets and performance measures, and legal doctrine, I show this conventional wisdom to be wrong. Only some of the problems associated with the current system can be explained by international geopolitics or by legal compromises reflected in refugee law. Instead, that system’s brutal realities also reflect the intersecting effects of bureaucratic dynamics, political pressures, and legal interpretations shaping the discretionary choices of UNHCR and its nongovernmental organization partners. I develop the argument by tracing the remarkable history of UNHCR as it transformed itself from a refugee advocacy organization into a modern relief agency. This evolution helps explain the persistence of security problems, and sheds light on the challenges of implementing ambitious legal mandates under uncertainty, particularly when the organizations doing so operate in complex political environments

Rethinking Regulatory Democracy

This article empirically examines democratic participation in three different regulatory proceedings, involving financial privacy, nuclear regulation, and campaign finance. It then uses that analysis to critique -- and suggest alternatives to -- existing mechanisms to achieve public participation in the regulatory state. The current mechanism for structuring public participation in regulatory decisions (or “regulatory democracy”) relies on demand-driven procedures like the Administrative Procedure Act’s notice and comment process. Organized interests and others who decide they have sufficient resources and interest to do so comment on regulations. While some observers consider this process close to ideal, others instead seem to accept the current approach only because it appears to be a reasonable compromise adequate for an imperfect world. Under this “compromise acceptance” view, current procedures seem easier to accept in light of certain empirical suppositions, such as that regulatory problems can be resolved through application of technical, scientific expertise, that individual members of the public tend to lack interest in participating in regulatory policymaking, and that even if they had such interest, they would add little to a process already informed by the views of organized interests. Drawing on an empirical analysis of thousands of public comments in these three regulations, as well as a rich empirical literature in political behavior, I show many of these suppositions to be questionable. (1) Comments from individual members of the public make up a substantial proportion of total comments about some regulations, showing at least some potential public demand for participation. (2) Dramatic differences exist in the sophistication of comments from organized interests and those of individual members of the public. (3) That deficit in sophistication independently affects the probability an agency will accept suggestions in public comments even when controlling for differences in commenter identity. (4) Interest groups do not always raise the range of concerns raised by comments from the lay public. (5) The larger public’s interest in a particular regulation and sophistication to take part in discussing it are both themselves shaped by the process used to consult that public. All this hints at a rich set of possibilities for alternative institutional designs to achieve regulatory democracy. I discuss two such approaches here. Both involve constituting a small group of people whose discussions can inform the regulatory process, and appointing a lawyer to serve as a “regulatory public defender” responsible for articulating their views to the agency. Participants can be either selected by lot from the entire population (a majoritarian deliberation approach), or chosen from among constituencies (such as outside experts) who may be especially impacted by the regulation but are essentially unrepresented (a corrective approach). Given that neither the public’s sophistication nor its interest in an issue are fixed, the new approaches can generate valuable information about what informed citizens think of regulatory proposals. These mechanisms can provide regulators with valuable information about what makes a new law acceptable to the public. Many of the technical challenges could be solved by creating a separate agency to implement reforms in regulatory democracy, though questions arise about sampling to select participants, framing the issue, and providing representation to the views of the group. Instead, the larger challenge to the reform of regulatory democracy is a political economy that strongly -- though not inevitably -- favors the status quo. I close by discussing three scenarios where reform would be easier to achieve

Auditing Executive Discretion

Executive branch officials routinely make thousands of decisions affecting public security and welfare. While it is rare that such discretionary decisions are entirely immune from some kind of judicial review, the courts\u27 role is often so circumscribed or deferential that in some domains the probability of uncovering problems through such review almost certainly falls close to zero. The resulting amount of executive discretion carries considerable risks along with rewards. Some discretionary decisions undoubtedly benefit from the speed and flexibility associated with limits on judicial review. Yet judicial review\u27s evisceration as a tool to restrain certain forms of discretion also makes it easier for some officials to promote appealing political impressions by subtly manipulating decisions, for others to engage in outright malfeasance, and for still others to simply fail to correct mistakes. Reliance on judicial review to generate information about executive discretion makes it difficult to address these concerns because courts routinely define much of their work in terms of applying the same standard of deference to every case in a particular class, limiting possibilities to increase the stringency of review in some policy domains without making the costs allegedly prohibitive. As a conceptual alternative for monitoring executive discretion, this Article develops a framework akin to that employed by courts engaged in the “sample adjudication” of class action and government fraud cases. It relies on the possibility of systematically auditing samples of discretionary decisions and making those results public. Although the efficacy of such a system depends on the political context and details of its institutional design, audits have the potential to sever the connection between the perceived costs of encroaching on discretion and the stringency of review. They also avoid the potentially distorted picture of bureaucratic activity created by a litigation-driven process. Despite their value, such audits are nonetheless almost never undertaken by existing federal audit bureaucracies, nor does the legislature seem to conduct them in connection with oversight hearings. This Article discusses the dynamics working against these audits, explains how auditing may nonetheless occasionally prove to be politically viable, and concludes by emphasizing the importance of greater sensitivity to institutional complexities in recurring debates about the merits of executive discretion. Reprinted by permission of the publisher

Auditing Executive Discretion

Executive branch officials routinely make thousands of decisions affecting public security and welfare. While it is rare that such discretionary decisions are entirely immune from some kind of judicial review, the courts\u27 role is often so circumscribed or deferential that in some domains the probability of uncovering problems through such review almost certainly falls close to zero. The resulting amount of executive discretion carries considerable risks along with rewards. Some discretionary decisions undoubtedly benefit from the speed and flexibility associated with limits on judicial review. Yet judicial review\u27s evisceration as a tool to restrain certain forms of discretion also makes it easier for some officials to promote appealing political impressions by subtly manipulating decisions, for others to engage in outright malfeasance, and for still others to simply fail to correct mistakes. Reliance on judicial review to generate information about executive discretion makes it difficult to address these concerns because courts routinely define much of their work in terms of applying the same standard of deference to every case in a particular class, limiting possibilities to increase the stringency of review in some policy domains without making the costs allegedly prohibitive. As a conceptual alternative for monitoring executive discretion, this Article develops a framework akin to that employed by courts engaged in the “sample adjudication” of class action and government fraud cases. It relies on the possibility of systematically auditing samples of discretionary decisions and making those results public. Although the efficacy of such a system depends on the political context and details of its institutional design, audits have the potential to sever the connection between the perceived costs of encroaching on discretion and the stringency of review. They also avoid the potentially distorted picture of bureaucratic activity created by a litigation-driven process. Despite their value, such audits are nonetheless almost never undertaken by existing federal audit bureaucracies, nor does the legislature seem to conduct them in connection with oversight hearings. This Article discusses the dynamics working against these audits, explains how auditing may nonetheless occasionally prove to be politically viable, and concludes by emphasizing the importance of greater sensitivity to institutional complexities in recurring debates about the merits of executive discretion. Reprinted by permission of the publisher

Rethinking Public Engagement in the Administrative State

This Article presents an empirical, doctrinal, and theoretical critique of public engagement in the modern administrative state. The legitimacy of the administrative state depends on the claim that it provides opportunities for public engagement as well as a mechanism for expert scientific decisionmaking. A typical rulemaking proceeding lets experts make technical judgments about terrorism, transportation, or telecommunications subject to court review guarding against arbitrariness. The whole process is then enmeshed in a system that is supposed to provide engagement – and therefore democratic accountability -- through presidential appointments and control, congressional oversight, and the public notice-and-comment process. This existing approach is legitimated by “administrative pluralism,” a way of thinking that emphasizes the value of interest-group competition in shaping regulatory policy. While administrative pluralism helps legitimate regulatory policy in the eyes of jurists, scholars, and the public, it also suppresses implicit questions about how much expert judgment is required in regulatory decisions, and whether the extent of participatory democracy and responsiveness is sufficient. The problems are not abstract. They are easily demonstrated in the course of a specific regulatory rulemaking proceeding, involving Section 314 of the USA Patriot Act (governing law enforcement’s access to financial information). The task of balancing privacy concerns and law enforcement objectives hardly seems like the exclusive province of experts. Individuals and interest groups did have a chance to submit comments in the rulemaking proceeding, but virtually all the comments taken seriously by the regulatory agency were sophisticated statements made by financial institutions and their lawyers. While over 70% of comments came from individuals concerned about privacy, the agency did not even address these in its final rule. Despite the administrative pluralism model’s tenacious hold, at least two alternatives exist to involve the public in rulemaking proceedings such as those governing Section 314, both of which involve constituting a small group of people whose discussions can inform the regulatory process. Participants can be either selected by lot from the entire population (a “majoritarian deliberation” approach), or chosen by the agency from among constituencies (such as outside experts) who may be especially impacted by the regulation but are essentially unrepresented (a “corrective” approach). These approaches can generate valuable information about what informed citizens think of regulatory proposals. The technical challenge of implementing the alternatives is far from insurmountable, though difficult questions arise about selecting deliberation groups, framing the issue, and giving legal effect to the public’s participation. Instead, two larger challenges remain. First is the challenge of choosing among different concepts of “administrative democracy” to combine expertise and participation. Second is the challenge of overcoming a political economy that strongly favors the status quo