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.


Administrative Law | Law and Politics | Military, War, and Peace | Public Law and Legal Theory

Date of this Version

October 2005