The Inevitability of Discretion and Judgement in Front-Line Decision-Making in the Administrative State

Given the vagaries of language and life there is no such thing as “clear” legislative text. Empirical research also indicates that hierarchical superiors in administrative agencies are pathologically incapable of directing subordinates. As a result, administrative discretion and judgement is inevitable. The question then becomes how front-line officials should exercise this discretion and judgement. Should they address legal issues, including constitutional issues, as they imagine lawyers would, even if they have no legal training? I argue that it would be unrealistic and inappropriate for those on the front lines of public administration to be required to think like lawyers. Rather, I argue for a de-formalized approach to front-line public administration, where the emphasis is on informal legal interpretation conducted in good faith: administrative discretion and judgement should presumptively be exercised in a large and liberal way, not characterized by pedantry and pettifoggery.

This content has been updated on May 2, 2023 at 15:28.