The Rule of Law and the Inevitability of Discretion

By Shane, Peter M. | Harvard Journal of Law & Public Policy, Winter 2013 | Go to article overview

The Rule of Law and the Inevitability of Discretion


Shane, Peter M., Harvard Journal of Law & Public Policy


At least two things are implicit in the title to this panel, "The Rule of Law and the Administrative State": first, there is something we can agree on called the Rule of Law; second, this Rule of Law is compromised in practice because of the advent of the Administrative State. The first of these propositions needs significant elaboration, and the second is wrong.

There are deep disagreements about what the Rule of Law is. (1) At the most general level to have a "Rule of Law" presumably means that those who govern us cannot wield the power of the state towards their personal ends either "just because they want to... or because they have force on their side." (2) What that entails, however, has eluded precise definition for centuries. (3) The Rule of Law, to use a phrase that Jeremy Waldron borrowed from the philosopher W. B. Gallie, is "an essentially contested concept." (4) "Essentially contested" does not just mean "very hotly contested." (5) It means that there is robust dispute as to the very core of the concept. (6) The internal complexity of the concept--the many features it comprises--gives rise to rival versions of the concept that prioritize those features very differently. (7)

Professor Richard Epstein advances a version of the Rule of Law that is characterized by the constraint of government discretion through the promulgation of general rules, which are predictable in their application and susceptible to fairly straightforward judicial enforcement, (8) In Professor Epstein's view, the administrative state compromises this version of the Rule of Law because it tolerates broad delegations of lawmaking authority to administrative agencies. (9) He observes that the statutes that empower federal agencies embody limitations on agency discretion that are somewhere between porous and evanescent. (10) He argues that the steps agencies take in implementing these statutes lack the generality and predictability appropriate for law. (11)

The key problem with this indictment is that it overdraws the distinction between the amount of problematic discretion afoot in the administrative state and what would be the case in what might be called the "classical liberal state." Congress, as the primary lawmaking body in the liberal state, would still be vested with enormous discretion by the terms of Article I of the Constitution. (12) Anyone who thinks Congress is less prone than agencies to favoritism, rent-seeking, or departures from generality, simply is not paying attention. (13) Additionally, courts, no less than agencies, are susceptible to unpredictable, ideologically driven decisionmaking and manipulation by rent-seeking parties in litigation. (14) Discretion will simply not go away.

The challenge for those of us who believe in a Rule of Law, therefore, is not to blink at the inevitability of discretion or resign "Rule of Law" to the dustbin of empty slogans. The task is to articulate a compelling conception of the Rule of Law--a conception that is well-suited to the inevitability of discretion in the administrative state. That discretion is rooted in two realities: "One is that public officials, even if conscientiously attentive to law, will often find the written law applicable to their particular problems or opportunities to be genuinely vague." (15) "The second.., is that, with regard to a great deal--perhaps most-government activity, the chances are remote that law can and will be enforced against nonconforming behavior." (16) Our Rule of Law conception must have operational consequence even when the actual prospects of sanction for illegality are remote.

Approached in this way, what is important about law as "law"--whether embodied for the executive branch in judicial opinions, statutes enacted by Congress, or the sometime Delphic phrases of the Constitution--is that law embodies the plans and purposes of voices not immediately present, but which have authority to bind the future. …

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