Enforcement Discretion: Thinking about the Executive, the Rule of Law and the Separation of Powers

The topic of enforcement discretion is the subject of an interesting series of posts by Zachary Price over at the Volokh Conspiracy. The impetus for Price's series and his underlying article ("Enforcement Discretion and Executive Duty") comes from several recent American episodes, such as President Obama's decision not to enforce certain provisions of the Affordable Care Act (see e.g. here), the policy not to pursue certain breaches of federal drug laws and the policy not to seek minimum sentences for some drug offences.

At first blush, this looks much like the dispensing power that common law jurisdictions dispensed with many centuries ago. Price argues, however, that there are constitutional provisions that give the American executive discretion to refuse to enforce laws on a case-by-case basis though not as a matter of general policy. My interest is less in the specifics of U.S. constitutional law than in the generalities of enforcement discretion.

The Basis of Fairness in Administrative Law: Osborn v. The Parole Board

The recent UK Supreme Court decision in Osborn v. The Parole Board, [2013] UKSC 61 has already provoked interesting commentary on the relationship between the common law of procedural fairness and the European Convention on Human Rights. I have nothing to add to that commentary, but one of the things I find interesting about Osborn is the discussion of the basis of fairness in administrative law.

Bagley on the Puzzling Presumption of Reviewability

An interesting new paper by Michigan's Nicholas Bagley:

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, or the Constitution. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors — appellate-style arbitrariness review — was not only unheard of prior to the twentieth century, but was commonly thought to be unconstitutional. The ostensible statutory source for the presumption — the Administrative Procedure Act — nowhere instructs courts to strain to read statutes to avoid the preclusion of judicial review. And although the text and structure of the Constitution may prohibit Congress from precluding review of constitutional claims, a presumption responsive to constitutional concerns would favor review of such claims, not any and all claims of agency wrongdoing.

To date, however, the presumption has gone unchallenged. This is regrettable. Congress has the constitutional authority, democratic legitimacy, and institutional capacity to make fact-intensive and value-laden judgments of how best to weigh the desire to afford private relief against the disruption to the smooth administration of public programs that such relief may entail. Courts do not. When the courts invoke the presumption to contort statutes that rather clearly preclude review to nonetheless permit it, they dishonor Congress’s choices and limit its ability to tailor administrative and regulatory schemes to their particular contexts. The courts should end this practice. Where the best construction of a statute indicates that Congress meant to preclude judicial review, the courts should no longer insist that their participation is nonetheless indispensable.

Bagley's focus is on American law, but the question of the basis for judicial review of administrative action is one which preoccupies judges and jurists alike in many jurisdictions. English academics have spent two decades with horns locked over the question.

For my part, I would state the presumption of reviewability slightly differently: where there is an effect on an individual's rights or interests (and the individual can scale procedural hurdles, such as standing), administrative action is presumed to be reviewable. This, I think, is the Canadian position and the position in other Commonwealth countries. So stated, the presumption is simply an aspect of the rule of law.

One argument that Bagley does not consider is the one made most elegantly by David Dyzenhaus. Where a statute purports to exclude judicial review, it speaks out of both sides of its mouth: it imposes limits yet asks courts to ignore them. Here is what I said about the problem in A Theory of Deference in Administrative Law:

It might be argued that in order to truly give effect to legislative intent, a reviewing court would have to give full effect to a statutory provision that purports to exclude judicial oversight. This is not necessarily so. The problem with privative clauses, so called because they deprive a reviewing court of jurisdiction, is that they create tension within a statute. On the one hand are provisions that prescribe limits to statutory powers; on the other hand is a privative clause which purports to render these limits unenforceable by reviewing courts. Privative clauses are, as a result, incoherent, as the much-maligned Lord Hewart observed in the context of a “conclusive evidence” provision:

In passing such a clause Parliament, it may be thought, was really stultifying itself, because, having inserted express provisions in the Act for the protection of persons liable to have their property taken without their consent, and having enacted that the council in making…an order must have regard to these provisions, it then, by means of this ‘conclusive evidence clause’ rendered such provisions nugatory, and, so far as victims are concerned, a mockery.

I also had something to say about the Administrative Procedure Act, suggesting that the best way to resolve the tension created by privative clauses is to ratchet up judicial deference, rather than excluding judicial review altogether:

Section 701(a) of the APA provides that judicial review will be generally available ‘except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law’. The presence of these clauses gives rise to the same incoherence that is created by the presence of a privative clause in a statute. Indeed, the situation created by the APA is indistinguishable from the situation created by an individual privative clause, for the APA only legitimates the exclusion of review; that exclusion is, in the final analysis, effected by privative language in the statute. Where language in the relevant statutory provisions satisfies the two clauses in the APA, it has a privative effect. Such language is permitted, but not mandated, by the APA. The incoherence could be removed by treating the satisfaction of the two clauses as factors going to the choice of the appropriate standard of review.

Bagley notes that intrusive judicial review can undermine statutory schemes: he gives the example of the Veterans' Administration. I agree, but I think the solution lies in deference to agencies rather than in the exclusion of judicial review.

You can download the thought-provoking paper here.

Out of Time, Back of the Line

What should a government do when its system for processing immigration applications has ground almost to a halt and is no longer fit for purpose?

The Canadian government tried reforming its "foreign skilled worker programme" on several occasions, to no avail. It ultimately enacted the following provision, s. 87.4 of the Immigration and Refugee Protection Act:

• 87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.

Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms

My paper for this Saturday's conference at the University of Ottawa in honour of Justice Charron is now available on SSRN. You can download it here. To whet your appetite, here is the abstract:

In interpreting the “prescribed by law” requirement contained in section 1 of the Charter of Rights and Freedoms, Canadian courts have struggled with an abundance of difficult distinctions: between law and discretion, general norms and individualized decisions, and administrative law and constitutional law.

A purposive approach assists in identifying the key functions of the “prescribed by law” requirement. First, it has both formal and substantive senses which are intimately related to the rule of law. Second, it performs an accountability function by forcing government to take responsibility for general norms that infringe Charter rights. Third, consistent with the intention of the drafters of the Charter, it provides additional protection for the individual from rights-infringing conduct by state actors.

These functions are frustrated somewhat by the analytical framework set out by the Supreme Court of Canada in Slaight Communications v. Davidson (1989). Unfortunately, in its recent decision in Doré v. Barreau du Québec (2012), the Court has only worsened the situation. It did away with the application of the proportionality test where Charter infringements can be attributed to individualized decisions of state officials, substituting instead the more deferential reasonableness test applied in judicial review of administrative action. Accordingly, a return to the pre-Doré situation, as outlined in the majority reasons of Justice Charron in Multani v. Commission scolaire Marguerite-Bourgeoys (2006), would be appropriate.

Moreover, improvements to the analytical framework within which the “prescribed by law” requirement is applied can be effected by using the tools of administrative law. Justification, transparency and intelligibility are the touchstones of reasonableness in administrative decision-making, as the Court itself has acknowledged. Accordingly, administrative decision-makers who fail to confine, structure and check their discretion by adopting “soft law” instruments, such as publicly available guidelines, risk seeing their decisions struck down as unreasonable by reviewing courts. And if decisions are unreasonable, they cannot be “prescribed by law” within the meaning of section 1 of the Charter.

Requiring the adoption of “soft law” instruments gives effect to the formal and substantive senses of the phrase “prescribed by law” by improving the accessibility and precision of administrative discretion; enhances its accountability function by allowing individuals to identify the source of rights-infringing official action and providing a focal point for debate; and hands an additional shield to the individual with which to fend off infringements of the Charter.

I will not be attending the conference in person -- my wife is due to give birth at any moment now -- but my friend Alexander Pless (Federal Department of Justice, Montréal) will be presenting it on my behalf. I welcome any comments.

Duties of Fairness in the Disposal of Municipal Buildings

At first blush, the result in North End Community Health Association v. Halifax (Regional Municipality), 2012 NSSC 330 is striking. A municipality's decision to sell an old school to a property developer was held to be unlawful because it breached a duty of fairness to local non-profit organizations and because it was sold at less than market value.