May 11, 2011

Epstein: Executive Discretion on Steroids

Over at the Hoover Institution's journal, Defining Ideas, Prof. Epstein has an article that would be especially interesting for those preparing for their Administrative law exams.  Prof. Epstein explores the Obama Administration's rampant exercises of discretionary authority. 
One of my constant concerns with the Obama administration is that its vision of executive power means that it has not recognized the need to rein in its discretion. Quite the contrary, in a variety of areas it seems only too eager to use its discretion to maximum advantage, often to support its own political agenda.
This increased activity poses serious separation of powers concerns:
In dealing with the abuse of power, it is important to recall that each branch of government has its own defined responsibilities. On the legislative side, clear statutory commands should give fair notice to individuals, allowing them to conform their conduct to the dictates of the law. In the executive branch, the great challenge is to install managerial safeguards ensuring that the immense reservoir of discretion accorded to public officials is exercised in consistent and determinate ways. On the judicial front, it is critical to develop procedures that provide an individual with sufficient notice of charges, and an opportunity for a hearing before an impartial decision-maker prior to being subject to any criminal or civil sanctions.
Prof. Epstein goes on to explore some examples of executive overreach: criminal prosecution of off-label drug use and mandatory campaign contribution disclosures by potential government contractors.  The section about off-label drug use will be especially interesting to those who took Prof. Epstein's class on FDA law in the Spring.

Executive Decision on Steroids: Beware of government actions aimed at "virtuous" ends

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