Discretion in Decision Making

Legislative, executive, and judicial discretion in decision making is limited within the structure of the three branches of the U.S. government as established in the Constitution. Each branch is subject to the influence, review, and even rejection of certain decisions. Administrative agencies, granted authority by Congress to administer specific government programs and areas of concern, operate outside this tripartite system, and many decisions made by administrative agencies are protected from review. For this reason, the administrative branches of federal and state governments have often been referred to as the headless fourth branch of government.

The U.S. Constitution does not expressly grant administrative authority. However, Congress may create administrative agencies as an extension of its authority to make laws that are necessary and proper, to help it execute its powers (U.S. Const. art. I). The president may appoint the heads of these agencies under a general grant of authority to appoint "public Ministers and Consuls" and "all other Officers of the United States, whose Appointments are not herein otherwise provided for" (U.S. Const. art. II). The judiciary, under its very broad grant of authority to hear all cases in law and equity, has a right, in some circumstances, to review and overturn administrative decisions (U.S. Const. art. III).

Administrative agencies, like the SOCIAL SECURITY ADMINISTRATION and the EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC), and the Bureau of Citizen and Immigration Services (BCIS), formerly the Immigration and Naturalization Service (INS), make both rules and adjudicative decisions, which means that they not only promulgate regulations but also decide conflicts dealing with their area of concern.

For example, the Social Security Administration promulgates regulations concerning the provision of income for totally disabled people and also decides who is or is not disabled. The EEOC promulgates regulations and guidance dealing with SEXUAL HARASSMENT and also decides whether PROBABLE CAUSE exists to pursue a particular claim of harassment. (Probable cause, which is a reasonable basis to believe the facts alleged, must be established before litigation can commence.) The BCIS not only helps to set immigration quotas but also makes individual decisions regarding deportation.

To review an agency decision under the standard of abuse of discretion, courts must follow a three-part analysis. First, courts must look to the legislation passed by Congress that gave the decision-making authority to the particular agency and determine if the administrator acted within the limits of that authority. Second, courts must determine if a clear error of judgment has occurred. Without clear error, a court cannot substitute its own judgment; if it did so, the court would itself commit an abuse of discretion. Third, courts must determine whether the administrator followed the procedural requirements.

Courts reviewing administrative decisions for abuse of discretion give great deference to the administrator or agency, who not only is an expert in the area of concern but also had access to all the facts that influenced the decision. This "hands-off" approach gives administrative agencies the opportunity to execute the authority granted them by Congress efficiently and effectively.

An administrative decision that is difficult to reverse or challenge is that made by the Board of Immigration Appeals to uphold an immigration judge's decision to deport an ALIEN. Once a deportation decision is made and upheld, the alien can seek to have the attorney general reverse it. Should the attorney general uphold the deportation, a court reviewing this discretionary decision will have limited opportunity to challenge it, because the Board of Immigration Appeals clearly has authority to make the decision in the first place. The alien must show either failure to follow procedure or clear error of judgment on the part of the board. Deportation challenges are common, but successful challenges are rare because the great discretion afforded to the BCIS makes an abuse of discretion extremely difficult to prove.