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Abstract

Executive branch officials routinely make thousands of decisions affecting public security and welfare. While it is rare that such discretionary decisions are entirely immune from some kind of judicial review, the courts' role is often so circumscribed or deferential that in some domains the probability of uncovering problems through such review almost certainly falls close to zero. The resulting amount of executive discretion carries considerable risks along with rewards. Some discretionary decisions undoubtedly benefit from the speed and flexibility associated with limits on judicial review. Yet judicial review's evisceration as a tool to restrain certain forms of discretion also makes it easier for some officials to promote appealing political impressions by subtly manipulating decisions, for others to engage in outright malfeasance, and for still others to simply fail to correct mistakes. Reliance on judicial review to generate information about executive discretion makes it difficult to address these concerns because courts routinely define much of their work in terms of applying the same standard of deference to every case in a particular class, limiting possibilities to increase the stringency of review in some policy domains without making the costs allegedly prohibitive. As a conceptual alternative for monitoring executive discretion, this Article develops a framework akin to that employed by courts engaged in the “sample adjudication” of class action and government fraud cases. It relies on the possibility of systematically auditing samples of discretionary decisions and making those results public. Although the efficacy of such a system depends on the political context and details of its institutional design, audits have the potential to sever the connection between the perceived costs of encroaching on discretion and the stringency of review. They also avoid the potentially distorted picture of bureaucratic activity created by a litigation-driven process. Despite their value, such audits are nonetheless almost never undertaken by existing federal audit bureaucracies, nor does the legislature seem to conduct them in connection with oversight hearings. This Article discusses the dynamics working against these audits, explains how auditing may nonetheless occasionally prove to be politically viable, and concludes by emphasizing the importance of greater sensitivity to institutional complexities in recurring debates about the merits of executive discretion. Reprinted by permission of the publisher.

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