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.


Administrative Law | Law and Politics | Public Law and Legal Theory

Date of this Version

March 2006