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.