Discretion in Decision Making

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.