Executive Governance Through Enforcement

2020 ◽  
pp. 215-237
Author(s):  
Adam B. Cox ◽  
Cristina M. Rodríguez
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Executive Branch ◽  
Immigration Law ◽  
Political Control ◽  
Policy Agenda ◽  
Shadow System ◽  
Government Power ◽  
Decision Making Processes

chapter grapples with the risks associated with executive governance through enforcement, tracing them to core and undisputed executive powers whose reach has been magnified in immigration law by the emergence of the shadow system. Two interrelated features of executive governance should prompt vigilance. First, when executive branch officials pursue a policy agenda through their management of the enforcement bureaucracy, discretionary decision-making drives their choices about how to threaten or wield force, as well as offer forbearance. It is natural to worry that this discretion will lead to the lawless, arbitrary exercise of power. Second, discretionary decision-making processes are often opaque. This feature exacerbates the possibility of abuse and makes it difficult to hold government power accountable. After defining these risks, the chapter then focuses on how the domain of de facto delegation can be structured to preserve the virtues of executive governance while promoting rule of law values. It offers a qualified defense of the centralized, political control of enforcement discretion as a means of disciplining the Executive’s awesome power.

Controlling the Enforcement Bureaucracy

2020 ◽  
pp. 162-188
Author(s):  
Adam B. Cox ◽  
Cristina M. Rodríguez
Keyword(s):  
Decision Making ◽  
Executive Branch ◽  
Immigration Law ◽  
Policy Agenda ◽  
Control Line ◽  
Daily Exercise ◽  
Immigration And Customs Enforcement ◽  
Line Level ◽  
Exercise Of Discretion ◽  
Trump Administration

This chapter demonstrates how the President’s control over immigration policy depends intimately on the structure and culture of the enforcement bureaucracy. These features of the bureaucracy in turn shape presidential policymaking. In particular, low-level executive branch officials play a crucial role in effectuating the enforcement power, as they are the ones responsible for the daily exercise of discretion within the system. To see how these dynamics have played out within the Executive Branch, the chapter studies the Obama administration’s efforts to centralize enforcement discretion in order to control line-level agents and contrasts those efforts with the early decisions of the Trump administration. It focuses on the attempts by political officials to tame the discretion of Immigration and Customs Enforcement (ICE) agents. President Obama’s efforts to discipline the decision-making of these line officials culminated in his two signature initiatives designed to insulate upward of five million unauthorized immigrants from removal. The bureaucratic reality of presidential immigration law has been on display equally during President Trump’s administration, including through efforts to centralize control over discretion where doing so has proven necessary to advancing the President’s policy agenda.

scholarly journals Learning McNamara's Lessons: How the War Powers Resolution Advances the Rule of Law

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
Decision Making ◽  
Vietnam War ◽  
Policy Making ◽  
Executive Branch ◽  
Military Policy ◽  
War Powers ◽  
The Rule Of Law ◽  
Decision Making Processes ◽  
Military Engagement ◽  
Military Decision Making

This essay considers Robert S. McNamara’s 1995 memoir In Retrospect: The Tragedy and Lessons of Vietnam. First, it explores McNamara’s Lessons to understand the dangers of military policy making conducted without genuine input from Congress. Further, it argues that the pathologies of Vietnam War decision making are not likely to be unique—that is, the realities of executive branch organization and its decision-making processes are likely to re-create those pathologies when Congress is only tenuously involved in resolving the most basic policy questions regarding any substantial military engagement. The essay asserts that the values of sound military decision-making are well served by preserving a state of ambiguity as to the allocation of military decision-making authority in all by the easiest cases. To the extent, the War Powers Resolution has helped Congress to exploit this ambiguity in leveraging its own military policy making role, it has performed a useful function.

Republic of Singapore

2019 ◽  
pp. 95-124
Author(s):  
Daniel Pascoe
Keyword(s):  
Decision Making ◽  
Death Penalty ◽  
Rule Of Law ◽  
Drug Trafficking ◽  
Brand Name ◽  
Prosecutorial Discretion ◽  
Death Row ◽  
Decision Making Processes ◽  
Executive Discretion

Against the jurisdiction with the highest rate of capital clemency from 1991 to 2016 (Thailand), Chapter 4 juxtaposes the jurisdiction with the lowest (Singapore). Here, a mere 0.6 per cent of prisoners who exhausted their judicial appeals received death row commutations between 1991 and 2016. In Singapore’s case, again the chapter opens with a summary of relevant death penalty laws and practice, and a summary of the six cases where a capital prisoner has been granted clemency since Singaporean independence in 1965. The five theoretically informed hypotheses set out to explain the Singapore Cabinet’s overwhelming reluctance to grant capital clemency over many decades are as follows: Singapore’s rule of law ‘brand name’; the government’s public justifications for retaining the mandatory death penalty; strong deterrence in drug-trafficking cases; prosecutorial discretion supplanting executive discretion, and particular aspects of the Cabinet’s decision-making processes.

scholarly journals Regulatory discretion: structuring power in the era of regulatory capitalism

Legal Studies ◽  
2021 ◽  
pp. 1-20
Author(s):  
Rebecca Schmidt ◽  
Colin Scott
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Black Box ◽  
Decision Makers ◽  
The Rule Of Law ◽  
League Tables ◽  
Novel Approach ◽  
Decision Making Processes ◽  
Changing Patterns ◽  
Automated Decision Making

Abstract Discretion gives decision makers choices as to how resources are allocated, or how other aspects of state largesse or coercion are deployed. Discretionary state power challenges aspects of the rule of law, first by transferring decisions from legislators to departments, agencies and street-level bureaucrats and secondly by risking the uniform application of key fairness and equality norms. Concerns to find alternative and decentred forms of regulation gave rise to new types of regulation, sometimes labeled ‘regulatory capitalism’. Regulatory capitalism highlights the roles of a wider range of actors exercising powers and a wider range of instruments. It includes also new forms of discretion, for example over automated decision making processes, over the formulation and dissemination of league tables or over the use of behavioural measures. This paper takes a novel approach by linking and extending the significant literature on these changing patterns of regulatory administration with consideration of the changing modes of deployment of discretion. Using this specific lens, we observe two potentially contradictory trends: an increase in determining and structuring administrative decision, leading to a more transparent use of discretion; and the increased use of automated decision making processes which have the potential of producing a less transparent black box scenario.

scholarly journals PARTICIPATION OF INDIVIDUALS IN PUBLIC DECISIONS IN THE POLISH LEGAL SYSTEM-THE OUTLINE

2020 ◽  
Vol 1 ◽  
pp. 21-27
Author(s):  
Agata Barczewska-Dziobek
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Legal System ◽  
Text Analysis ◽  
Good Governance ◽  
The Body ◽  
The Rule Of Law ◽  
Decision Making Processes ◽  
Polish Law ◽  
The Relationship

The idea of good governance is associated with the postulate of participatory and interactive democracy. This results in the appearance in the legal system of solutions reflecting the recommendations of the so-called "good administration." Good administration is the subjective right which, in the relationship between the body and the citizen, defines the individual's rights and the duties of the administration to act in a particular way. It may be interpreted differently, but it must comply with universal standards. They have been defined in international, European and soft law. These include the rule of law, equality, administrative transparency, confidence and trust, as well as the opportunity to participate in decisions. The last of these relates to procedures for involving citizens in administrative decision-making. The purpose of the article is to present normative solutions in Polish law that guarantee citizens participation in decision-making processes at various levels of administration and their systematics. To achieve this goal, the method of legal text analysis was used, which allows us to indicate the existence of many different mechanisms of participation. Their presence in Polish law determines the varying levels of civic influence on public decisions.

scholarly journals On Laws and Their Spirit

2021 ◽  
Vol 7 (1) ◽  
pp. 209-233
Author(s):  
Dragan Šljivić ◽  
Neven Cvetićanin
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Orthodox Christianity ◽  
The West ◽  
The Rule Of Law ◽  
Decision Making Processes ◽  
Divergent Development ◽  
Internal Procedures ◽  
The Impact ◽  
State Separation

Abstract The Orthodox Christianity had in some respects divergent development from that of the West, which also resulted in several conceptions that might have had an impact on the contemporary legal situations in the predominantly Orthodox countries. In this contribution we aim at examining the impact of two major points of divergence. One is the cooperative Church–state separation, that is sometimes dubbed as the symphonia of the two. Another set of concepts that arguably marked Orthodox church’s understanding of the rule of law, at least in its internal procedures, is the principle of leniency (oikonomia). It allows for an interpretation of the laws in the interest of the person to which those are to be applied. We want to investigate which pieces of legislation might have been affected by these considerations and whether contemporary challenges of the legal system in Serbia can be traced to some of the Orthodox doctrines. We conclude that while the contemporary Church–state relationship, as envisioned in the corresponding law of the country, demonstrates many traits that can be traced to the symphonia tradition, there is hardly any evidence that would support the claim that the decision-making processes in Serbian courts were marked by conscious application of the principle of oikonomia.

Administrative Discretion and the Rule of Law

2020 ◽  
pp. 254-299
Author(s):  
Joseph Heath
Keyword(s):  
Decision Making ◽  
Empirical Study ◽  
Rule Of Law ◽  
Executive Branch ◽  
Democratic Legitimacy ◽  
Administrative Discretion ◽  
Public Officials ◽  
Abuse Of Power ◽  
The Rule Of Law

Empirical study of administrative decision-making shows that the power exercised by public officials is only loosely controlled by statutory law. Political theorists have traditionally viewed this discretion quite negatively, as a violation either of the rule of law or the principle of democratic legitimacy. This chapter presents a defense of administrative discretion, on the grounds that it is not just inevitable; it makes an important contribution to the quality of public administration. Both legislative and judicial strategies to reduce administrative discretion have failed or had perverse consequences. The best approach to reducing the potential for abuse of power has been through the development of a “rule of law” culture within the executive branch.

scholarly journals The Obama War Powers Legacy and the Internal Forces That Entrench Executive Power

2016 ◽  
Vol 110 (4) ◽  
pp. 680-700 ◽  
Author(s):  
Rebecca Ingber
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
Executive Branch ◽  
Barack Obama ◽  
Executive Power ◽  
War Powers ◽  
The Rule Of Law ◽  
President Elect ◽  
Internal Forces ◽  
To Come

As we contemplate the incoming presidential administration, we stare ahead into uncharted space. It may seem as though recent history leaves us unprepared for what lies ahead. What can a discussion of the Obama war powers legacy, and the transition from the Bush to Obama administration, tell us about a transition from Barack Obama to the next president, and beyond?Yet there are lessons here. Noone can predict precisely how the president-elect and the team that is installed will confront the rule of law or grapple with the bureaucratic norms that I discuss in this paper. But systemic forces exist inside the executive branch that influence presidential decision-making in each modern administration and, barring a total reimagining of the executive branch, will operate on administrations to come. These internal forces include mechanisms and norms that fall within two broad categories: (1) those that favor continuity and hinder presidents from effecting change, and (2) those that incrementally help ratchet up claims to executive power.

scholarly journals Surveillance, Secrecy, and the Search for Meaningful Accountability

2017 ◽  
Author(s):  
Sudha N. Setty
Keyword(s):  
Civil Rights ◽  
Rule Of Law ◽  
The United States ◽  
Executive Branch ◽  
The Rule Of Law ◽  
Government Power ◽  
Surveillance Programs ◽  
The Law ◽  
The Government ◽  
Government Surveillance

Published: Sudha Setty, Surveillance, Secrecy, and the Search for Meaningful Accountability, 51 STAN. J. INT'L L. 69 (2015). One of the most intractable problems in the debate around maintaining the rule of law while combating the threat of terrorism is the question of secrecy and transparency. In peacetime, important tenets to the rule of law include transparency of the law, limits on government power, and consistency of the law as applied to individuals in the policy. Yet the post-9/11 decision-making by the Bush and Obama administrations is characterized with excessive secrecy that stymies most efforts to hold the government accountable for its abuses. Executive branch policy with regard to detention, interrogation, targeted killing and surveillance are kept secret, and that secrecy has been largely validated by a compliant judiciary that has dismissed almost all suits challenging human and civil rights abuses resulting from counterterrorism programs. Efforts by Congress to engage in meaningful oversight have met with mixed results; in the area of government surveillance, such efforts have been fruitless without the benefit of leaked information on warrantless surveillance by government insiders, since the executive branch has generally refused to make public vital aspects of its surveillance programs in ways that could give oversight efforts more muscle. At the same time, the executive branch has consistently defended the legality and efficacy of these surveillance programs. This paper considers the nature and effect of the warrantless surveillance infrastructure constructed in the United States since the terrorist attacks of September 11, 2001, and discusses surveillance-related powers and accountability measures in the United Kingdom and India as comparative examples. Through this analysis, this paper questions whether accountability over government abuses in this area exists in an effective form, or if governments have constructed a post-9/11 legal architecture with regard to surveillance that engenders excessive secrecy and renders accountability mechanisms largely meaningless.

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