More on Discretion: Sentencing

The Supreme Court of the United States handed down Peugh v. United States today. The individual in question was sentenced according to the harsher set of sentencing guidelines that were in force at the time of sentencing rather than the milder set that were in force at the time he committed the offences.

The majority held that this amounted to a retroactive increase in punishment contrary to the ex post facto clause. That seems about right to me.  

Thomas J. has an interesting dissent (for four judges) in which he dismisses the guidelines as not of binding force and effect. The ex post facto clause applies to law, not to administrative guidelines.

This is a distinction more of form than substance, I fear. The point of introducing the guidelines is that they have normative effect and are likely to influence the exercise of discretion. If that is the case, their technically non-legal status should not be treated as dispositive.

Administration and Discretion: the Role of Constitutional Values

There are two important recent papers, from both sides of the Atlantic, tackling the thorny question of enforcement discretion. The underlying concern, common to both papers, is the power of administrative actors to choose which statutory provisions they will apply against particular individuals or companies and the intensity with which they apply them.

If one sees courts at the centre of the administrative-law universe, these tendencies are problematic: because individuals or companies often reach agreement with administrative actors, there will generally be no recourse to judicial review. Ensuring that legal norms are respected therefore requires some other mechanism.

Accordingly, in "Better regulation, administrative sanctions and constitutional values", Karen Yeung recognizes the utility of flexible enforcement of statutory standards but also emphasizes the need for administrative actors to wield their powers in a manner consistent with the constitutional values of due process, participation, transparency, accountability and legal principles of fair treatment. A particular target is the "better regulation movement", which she sees as having adopted a "largely one-dimensional, instrumental, understanding of the law that typically fails to engage with law's normative structure and underpinnings".

Perhaps David Barron and Todd Rakoff's "In Defense of Big Waiver" is an American equivalent of the better regulation movement. Barron and Rakoff take a positive view of a feature of modern American legislation: the power of administrative actors to waive the application of some regulatory provisions. These are similar to classic "Henry VIII" clauses, which grant a power to modify a statute by regulation, but differ because waivers can be applied on an individual rather than a general basis.

Barron and Rakoff welcome the era of "big waiver":

But there is also a more attractive account of big waiver, and one that we favor. Big waiver offers a salutary means of managing the practical governance concerns that make traditional delegation unavoidable. Through big waiver, Congress takes ownership of the first draft of a regulatory framework, confident that its handiwork will not prove to be rigid and irreversible. In this way, big waiver marries the advantages of legislative specification and administrative delegation in a single practice. In a world in which the legislative veto has been outlawed and statutory revision of major regulatory programs is exceedingly difficult, the delegation of an administrative veto affords Congress regulatory flexibility that enables it to codify fundamental policy choices that it otherwise might be unwilling (or unable) to specify, thereby making legislative policymaking viable—precisely because it can be monitored and altered through the administrative process. For this reason, big waiver also provides a way for the executive branch and Congress to find common ground even when partisan divisions between them might otherwise prevent legislative dealmaking.

Barron and Rakoff take pains to point out, moreover, that "big waiver" is consistent with the key principles of American administrative law. Importantly, they would require administrative actors to give reasoned explanations of their decisions to waive statutory provisions:

It is sufficient for the agency reasonably to conclude that the core purposes of the statute will be better achieved with the waiver than without. But the demand for a reasoned explanation of that comparative conclusion is warranted.

So Barron and Rakoff too are alive to the importance of respecting legal values, even while emphasizing the need for regulatory flexibility.

UPDATE: A similar issue arose in Nanson v Saskatchewan College of Psychologists, 2013 SKQB 19. At the conclusion of disciplinary proceedings, counsel for the individual and counsel for the professional order made a joint submission as to penalty. As a matter of course, one would expect joint submissions to be accepted. Here, the decision-maker rejected the joint submission and imposed alternative terms. Danyliuk J. quashed the decision, finding it substantively and procedurally flawed. The following passage (at para. 49) is of general interest:

Generally, the negotiations that are needed to arrive at a joint submission can only work effectively if both the offender and the prosecutor are able to proceed with a considerable amount of confidence that the agreement will be implemented. There is, of course, no guarantee that this will be done by the sentencing judge. However, the cases clearly state that such a judge should only depart from a joint submission after applying carefully considered principles. This law respecting the rejection of a joint submission is well known, and ought to have been known to the Discipline Committee here given the reference to Rault. The trial judge should not reject a joint submission unless it is unfit or unreasonable. A joint submission should only be departed from where the proposed sentence is contrary to the public interest, and, if accepted, would bring the administration of justice into disrepute. The obligation of a trial judge to give serious consideration to a joint sentencing submission stems from an attempt to maintain a proper balance between respect for the arrangement reached, and the sentencing court’s role in the administration of justice. The certainty that is required to induce accused persons to waive their rights to a trial or hearing can only be achieved in an atmosphere where judges and tribunals do not lightly interfere with a negotiated disposition that falls within, or at least is very close to, the appropriate range for a given offence. These negotiations will certainly be undermined if the resulting joint submission is too readily rejected by the person(s) doing the sentencing. Detailed reasons for rejecting any joint submission must be provided - especially here, where highly capable and experienced counsel had arrived at the joint submission.

A decision-maker thus exercises some control over joint submissions, to ensure their appropriateness, specifically, their fitness and reasonableness and consistency with the public interest and administration of justice.

The A to Z.1 of Safe Injection Sites in Canada

In late 2011, the Canadian federal government suffered a defeat at the Supreme Court of Canada. In Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134, the government was ordered to give an exemption from the application of criminal prohibitions on drug possession to a safe injection site called Insite. This facility served drug users (many of whom were chronic drug users) in Vancouver, British Columbia.

Austerity, Legislative Change and Legitimate Expectations

Back in my native Ireland, the public finances have been severely compressed since the onset of the Great Recession. Unsurprisingly, numerous legal issues have arisen. A recent interesting case is MacDonncha v. Minister for Education and Skills, [2013] IEHC 226.

Some Thoughts on Rational Decision-making

Adrian Vermeule has a new paper, Rationally Arbitrary Decisions (in Administrative Law). Here is the abstract:

How should administrative law cope with genuine uncertainty, in which probabilities cannot be attached to outcomes? I argue that there is an important category of agency decisions under uncertainty is which it is rational to be arbitrary. Rational arbitrariness arises when no first-order reason can be given for the agency’s choice one way or another within a certain domain, yet the agency has valid second-order reasons to make some choice or other. When these conditions obtain, even coin-flipping may be a perfectly rational strategy of decisionmaking for agencies.

Courts should defer to rationally arbitrary decisions by agencies. There is a proper role for courts in ensuring that agencies have adequately invested resources in information-gathering, which may dispel uncertainty. Yet in some cases the value of further investments in information-gathering will itself be genuinely uncertain. If so, courts should defer to agencies’ second-order choices about informational investments on the same grounds that justify deference to agencies’ first-order choices under uncertainty.

The idea that coin flipping might be a rational decision-making process is provocative, but Vermeule is referring to a limited (though important) class of decisions. To fall into this class, a decision must exhibit "first-order uncertainty" -- genuinely unquantifiable uncertainty due to absence of information about facts or individuals' future actions -- and also "second-order uncertainty" -- impossible to gather further information to resolve the first-order uncertainty.

Fettering the Prerogative: Form and Substance

R. (Sandiford) v. Foreign and Commonwealth Secretary, [2013] EWCA Civ 581 is a fascinating case.  A British citizen has been accused by the Indonesian authorities of drug trafficking, an offence which carries the death penalty in that jurisdiction. She wants the British government to fund her defence. Her arguments -- which were rejected by the Court of Appeal -- are admirably summarized over at the excellent UK Human Rights Blog. The one that caught my eye relates to the prerogative.

The Ever-Growing Administrative State

In his dissent in Arlington v. FCC (noted here), Chief Justice Roberts decried the rise and rise of the administrative state. This criticism nourished an op-ed in the Washington Post by George Washington University Law School's Jonathan Turley. Here is a taste:

The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

This rulemaking comes with little accountability. It’s often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical. Of course, agencies owe their creation and underlying legal authority to Congress, and Congress holds the purse strings. But Capitol Hill’s relatively small staff is incapable of exerting oversight on more than a small percentage of agency actions. And the threat of cutting funds is a blunt instrument to control a massive administrative state — like running a locomotive with an on/off switch.

The autonomy was magnified when the Supreme Court ruled in 1984 that agencies are entitled to heavy deference in their interpretations of laws. The court went even further this past week, ruling that agencies should get the same heavy deference in determining their own jurisdictions — a power that was previously believed to rest with Congress. In his dissent in Arlington v. FCC, Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”

I think the concern about deference is misplaced. Properly construed, even deferential judicial review gives effect to important public law values, such as the rule of law and good administration.

It is undoubtedly the case, however, that the willingness of the U.S. courts to hide behind doctrines of justiciability (political questions, standing, etc) to avoid interfering with a wide range of policy choices made by administrative agencies means that judicial oversight is less rigorous than it might otherwise be. This, I think, has knock-on consequences for the administrative state. If courts are not ensuring respect for public law values, the legitimacy of the administrative state is reduced. That is not to say that judicial review is the only, or even necessarily the best, means of legitimacy. Indeed, for a host of practical reasons, large swathes of administrative action will inevitably never be subject to judicial oversight. Nevertheless, for the judiciary to remove itself from large areas of administrative decision-making is decidedly unhelpful.

But that is really a side-bar. The administrative state is here to stay. The issue then becomes how to ensure that it acts with rationality, fairness and respect for democracy. All branches of government, civil society organizations, ordinary citizens and government employees can play a constructive role. Legislative and executive oversight is important, as is oversight within and across agencies. Civil society organizations often have the resources and expertise to engage productively with the "fourth branch". Ordinary citizens interact with administrative decision-makers, but can also give feedback to elected officials, administrators and their fellow citizens. And government employees, on the front lines, bear a special responsibility to ensure that administrative decisions are taken in a rational and fair way which respects the mandate of the decision-maker and the interests of those affected.

Turley's conclusion is, accordingly, unduly dark:

In the new regulatory age, presidents and Congress can still change the government’s priorities, but the agencies effectively run the show based on their interpretations and discretion. The rise of this fourth branch represents perhaps the single greatest change in our system of government since the founding. We cannot long protect liberty if our leaders continue to act like mere bystanders to the work of government.

The tenor of Heather Gerken's comment, made in the context of a recent short article on federalism (The Federalis(m) Society), is more appropriate:

So, too, if you worry about the growth of the Fourth Branch shouldn’t you be thinking creatively about the ways that states can play the same role inside federal administration as they now play outside of it? Think of it as the administrative safeguards of federalism. If you care about state power, it is far better to have the administrative safeguards of federalism in play as the federal empire expands. You can, of course, continue to insist that the federal empire ought to be radically trimmed. Good luck with that.

More can always be done. But supposing that we ever teeter on the brink of disaster with only politicians to haul us back from the edge greatly oversimplifies matters.

UPDATE: a reader suggests that this complaint is reminiscent of Lord Hewart's tirade against the growing administrative state in The New Despotism. Indeed it is! Colin Scott made a similar point on Twitter. I have to say, though, I find that The New Despotism reads reasonably well to the modern eye. Much of Lord Hewart's ire was directed towards attempts to shelter the administrative state from judicial review, by means of ouster clauses, conclusive evidence clauses and the like. Modern judicial review doctrine (elsewhere than in the United States, that is) evidences a very skeptical attitude to attempts to oust judicial control. The administrative state will not be rolled back, but its operation can be improved and, in part, improvement can be achieved by the tools of administrative law.