The Paradox of Discretion and the Case of Elian Gonzalez

Abstract

The exercise of administrative discretion is inevitable in complex policy-making and law enforcement, including immigration policy generally and the Elian Gonzalez case specifically. Clearly, discretion is in tension with democratic notions of political accountability, the rule of law, and constitutional separation of powers. Yet the Elian case suggests that although discretion poses a threat to democracy it also contributes to a democratic public administration. Furthermore, because discretion is exercised in a sea of safeguards its dangers can be reconciled to its necessity.