Executive Discretion Research Articles

Breaking Through? The Divergent Consequences of CEO Political Ideology on Firm Inventiveness

We draw on upper-echelons literature recognizing the important role of CEOs in firm strategy, including innovation, and research on CEO political ideology and executive discretion to explore the relationship between CEO political ideology and firm breakthrough inventions. We suggest that CEO liberalism is a double-edged sword and is positively associated with firm breakthrough inventions but also less-useful inventions. We suggest that these relationships are shaped by three different sources of executive discretion: CEO-TMT pay gap, institutional investors, and existing product-market competition. We find support for our hypotheses on a sample of 581 public firms using firms’ patenting and citation activities to capture inventions. We infuse a values, contingency-based perspective to work on CEO characteristics and firm breakthrough inventions, provide a more comprehensive understanding of the multifaceted nature of managerial discretion in setting or deviating firms on/from certain technological trajectories, and extend work on political ideology by showing the relevance of political ideology for explaining not just variations in firm internal resource allocation decisions, corporate activism, and entrepreneurship but also in the level and nature of inventions it produces.

The Tightrope of Individual Liberties amid Pakistan’s Counter-Terrorism Agenda

This doctrinal research article explores the nuances, pitfalls, and opportunities within this intricate landscape. This doctrinal research delves into the intricate balance between individual liberties and Pakistan's counter-terrorism agenda, navigating the complex terrain where security imperatives intersect with fundamental rights. As Pakistan grapples with persistent security threats from terrorism, its response has often entailed the implementation of stringent measures aimed at thwarting terrorist activities and ensuring public safety. However, these measures have raised concerns about their impact on civil liberties, including freedoms of expression, association, and privacy. Drawing upon legal frameworks, policy documents, and judicial precedents, this research critically examines the evolving landscape of counter-terrorism laws and practices in Pakistan and their implications for individual liberties. It scrutinizes the compatibility of counter-terrorism measures with constitutional guarantees and international human rights standards, assessing the extent to which security imperatives have encroached upon fundamental rights and freedoms. Furthermore, this research explores the role of judicial oversight, executive discretion, and legislative reforms in reconciling the tension between security concerns and individual liberties within Pakistan's legal framework. It analyses landmark court decisions, legislative enactments, and government policies to elucidate the legal and institutional mechanisms aimed at safeguarding individual liberties while countering terrorism effectively. Moreover, this research situates Pakistan's counter-terrorism efforts within the broader context of regional security dynamics, highlighting the interconnectedness of domestic security challenges with regional conflicts, geopolitical rivalries, and transnational terrorist networks. It underscores the importance of regional cooperation, information sharing, and diplomatic engagement in addressing common security threats while respecting individual liberties across borders. By critically examining the tightrope walk between individual liberties and Pakistan's counter-terrorism agenda, this research contributes to a nuanced understanding of the challenges and trade-offs inherent in balancing security imperatives with respect for fundamental rights.

PRESIDENTIAL AGENDA SETTING AND FOREIGN ECONOMIC POLICY: EXPLAINING SOUTH KOREA’S DELAYED APPLICATION TO THE CPTPP

Foreign policies, including trade policies, typically entail significant executive discretion, marked by a top-down decision-making process. This has been evident in South Korea, where the president, as chief diplomat, wields substantial authority in selecting the country’s Free Trade Agreement partners. Given South Korea's efforts to solidify its status as a trade hub and the strategic advantages of joining the Comprehensive and Progressive Agreement for the Trans-Pacific Partnership (CPTPP), why has the country not been able to formally apply for membership? What influenced presidents to consistently list the CPTPP as a foreign economic policy objective, yet refrain from participation while actively pursuing other trade initiatives? This article seeks to adopt insights from the agenda-setting literature to comprehend the mechanisms governing presidential agenda priorities in foreign economic policy. Utilising a framework of foreign policy attention, it uncovers factors and processes that influence South Korean presidents’ focus in shaping trade policies. It demonstrates that external policy events drive the president’s attention, but the limited progress of the CPTPP underscores the crucial impact of the president’s priorities and responsiveness to the domestic audience.

MacDermott Lecture 2023: Confounding the rule of law: conflating immigration, nationality, and asylum in the UK

In this MacDermott Annual Lecture, Professor Devyani Prabhat looks at current developments in immigration, nationality and asylum law and evaluates these in terms of the core ingredients of the rule of law. Specifically, the focus is on two aspects of the rule of law as elaborated on by Lord Bingham in his classic exposition on the rule of law (2011.) First, Bingham asserts that ‘Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion’ is a fundamental requirement of the rule of law; and, second, Bingham states that ‘the rule of law requires compliance by the state with its obligations in international law as in national law’. The examples Professor Prabhat analyses in the lecture are that of the East African Asians who could not enter the United Kingdom (UK) with their British passports in the 1960s and 1970s; the Windrush generation and the hostile environment of immigration control; immigration control of European Union nationals in the UK after Brexit; developments in cancellation of British Citizenship; and new legislation and proposals on asylum in the UK. Do these changes in the scope and application of the law comply with the rule of law in general and with the two specific principles on ‘law not discretion’ and ‘international law compliance’ in particular? While answering this question, Professor Prabhat explains how the different legal categories in immigration, nationality and asylum are distinct but are often conflated or confused with each other. Executive discretion should be narrow for nationality and asylum matters to conform with international law, whereas it can be wider for immigration so long as principles of fairness and non-discrimination are adhered to in each instance.

Measuring retail productivity: proposition of a new method for decision making

This paper proposes an elegant way of estimating retail productivity through a mathematical model inspired by FGLS multivariate linear regression, using the error equation obtained as a hidden variable estimator to be used as inferred efficiency. This methodology was applied to a dataset obtained from a leading ready-to-eat cereal (RTEC) manufacturer and demonstrated substantial results. Unlike conventional ordinary least squares (OLS) regressions, the proposed approach offers benchmarking information relative to the best-performing retailers, as opposed to the typical relative-to-average outcomes of regressions. Furthermore, in contrast to traditional data envelopment analysis (DEA), this methodology relies on the entire dataset to establish the efficiency index, thereby addressing limitations imposed by DEA and allowing for executive discretion and flexibility in the analysis.

Penalty Notices, Policing and Executive Discretion: Examining the Nature and Effects of Criminalisation in the COVID-19 Pandemic Response

Police-issued penalty notices were heavily relied upon to deter and punish breaches of emergency restrictions in the Coronavirus 2019 (COVID-19) pandemic. This article critically examines the use of penalty notices in this context and explores the implications for our understanding of contemporary criminalisation practices. The origins, drivers and existing theoretical accounts of penalty notice regimes are first examined. Attention is drawn to their often overlooked disruptive and punitive effects in the domains of public order policing and administrative fines enforcement. Against this background, a case study of the COVID-19 Delta variant outbreak in New South Wales, Australia is presented. This case study exemplifies the substantial discretionary, penal and quasi-judicial functions ceded to police and state debt recovery agencies through modern penalty notice regimes. It exemplifies the ‘chameleon criminalisation’ enacted by penalty notices. Despite appearing transactional and benign, ‘on-the-spot’ fines subtly expand executive power and disproportionately penalise the most vulnerable and marginalised.

Executive decrees, omnibus bills, and the politics of abusive constitutionalism in Turkey

ABSTRACT Consolidation of authoritarian rule by constitutional tools is becoming an increasingly prevalent phenomenon, as powerful incumbents instrumentalize constitutional amendments to rework the state to their advantage and eliminate the horizontal checks. Turkish experience since 2014, we argue, is a suitable case to identify the legal mechanisms that are abused to undermine democratic rule within the context of abusive constitutionalism. We present original data on omnibus bills and analyse the executive decrees which expanded executive discretion over legislation and reduced horizontal accountability. Our analysis shows that the regime single-handedly reorganized the administrative structure through executive decrees, while the omnibus bills were critical in addressing the economic and judicial issues. Both methods of legislation accelerated the law-making to exclude the opposition from legislative processes. Our analysis contributes to the literature as it illustrates how the would-be autocrats eroded democratic institutional order by gradually neutralizing checks on their rule.

Judicial Review of US Border Policy's Spillover Effects: Negative Externalities, Executive Discretion, and Immigration Law

Abstract Negative externalities pervade immigration law. For example, immigration rules can cause negative economic externalities by barring foreign nationals whose participation would make labor markets more efficient. On the other hand, sweeping executive-branch measures to assist immigrants may unduly expand executive power and yield adverse effects on governance. This essay divides immigration's negative externalities into three categories: economic, relational, and rhetorical. It then argues for specific legal and policy measures, including tailored executive discretion over deportation; more robust court review of immigration restrictions that affect foreign nationals outside the United States; and classifying deportation of lawful permanent residents of the United States as punishment requiring advance notice that specific acts can prompt removal, like the notice the Constitution's Ex Post Facto Clause requires for criminal laws.

From the Inside Out: The Coercive Power of Deportation and the Erosion of the Liberal Democratic State

Abstract Deportation is the expulsion of a non-citizen from the territory of a state by force or coercion. Largely because it is perceived to be a necessary extension of the state’s immigration power, deportation carries the same prerogative force, benefits from the same sweeping ambit of executive discretion and is subject to the same diminished scrutiny. Deportation is, however, a distinct legal phenomenon. Present on state territory, deportees are simultaneously subject to the state’s laws by virtue of their territorial presence and excluded from the state’s liberal democratic values of legality and fundamental rights by virtue of their status. Deportation practices create spaces inside the state where these values do not reach. As a ‘spectacular state power’ that acts inside the state, deportation bears a higher justificatory burden. The failure of states to adequately discharge this justificatory burden interrupts the integrity of legality on the inside and erodes their liberal democratic character.

The Constitutional Foundations of Reasonableness Review: Artificial Reason and Wrongful Discrimination

Judicial review of the executive faces a constant threat of constitutional illegitimacy. Historically, this manifested in a conflict between the common law and the royal prerogative, with the judiciary needing to justify its authority to set legal limits on the powers of a divinely authorised monarch. This conflict has now transformed into a clash of political and legal conceptions of democratic governance: executive discretion to decide upon and efficiently pursue the common good conflicting with judicial enforcement of foundational constitutional norms designed to ensure that this pursuit is lawful. This article will look to the founding of the law of judicial review and the writings of Sir Edward Coke to illuminate some of the dark corners of the modern law of reasonableness review. Coke’s theory of the common law as a body of artificial reason will serve to place reasonableness review within its appropriate constitutional context, solidifying the connection between the rule of law and non-arbitrariness by elucidating the foundational role that constitutional principle plays in identifying unreasonable executive conduct. Once this is done, it will become clear that the value of legal equality, manifesting in a principle of non-discrimination, is vital to reasonableness review.

Dynamic capabilities and governance: An empirical investigation of financial performance of the higher education sector

AbstractResearch SummaryWe postulate that resource allocation decisions consistent with dynamic capabilities can improve financial performance, but that governance moderates the relationship between resource allocation flexibility and financial performance. Using more than a decade of data on US public universities, we find that flexibility has much more impact when matched by lower levels of governance that allow greater expenditure autonomy for university executives and administrators.Managerial SummaryOrganizations are increasingly subject to conflicting demands imposed by their institutional environments. Given the importance of governance arrangements, we apply strategic management concepts to public universities and investigate the effect of external governance arrangements on university performance. We show that universities that reallocate resources more regularly are more likely to run larger budget surpluses. This is far more likely to be true at universities where external governance arrangements allow greater executive discretion.

Immigration's Law's Boundary Problem: Determining the Scope of Executive Discretion

Immigration's Law's Boundary Problem: Determining the Scope of Executive Discretion

A Structural Solution to Mitigating Artificial Intelligence Bias in Administrative Agencies

The rise of artificial intelligence (AI) from nascent theoretical science to an advancing juggernaut of industry with national security implications has begun to permeate U.S. federal administrative agencies. For all the potential benefits AI brings, misapplied or underregulated administrative agency utilization of AI risks eroding American values. The Executive Branch must carefully calibrate its administrative uses of AI to mitigate for biases that flow from models ranging from simple algorithms to complex machine learning systems, especially for biases that would adversely affect protected classes and vulnerable groups. Save for a voluntary survey by an independent advisory agency, the federal government lacks an organic accounting of AI use cases and development across administrative agencies. Recent executive actions have only begun to address these issues by establishing broad-stroke foundational principles and recommendations that can lead to the development of optimal AI regulation and general utilization. Despite these initial gains, the prospective utilization of AI in administrative adjudications, rulemakings, grant administration and the like, lacks the structural framework to apply meaningful implementing and accountability mechanisms. The Biden administration will have the opportunity and challenge to expand on the foundation of the prior two administrations and normalize the process of administrative integration of AI with the quality control, consistency measures, and policymaking processes that best leverage federal government resources. This is especially important in light of the related national security implications that flow from this issue. Regardless of whether the Biden administration seeks to undergird executive discretion with legislation or operate on a self-restraint basis, the appropriate regulation of AI in administrative agencies should balance technological innovation with legal compliance and fidelity to well-tread limiting principles. We conclude that two units of the Executive Office of the President, the Office of Information and Regulatory Affairs and the Office of Science and Technology Policy, are optimally situated and experienced to lead the policy-making, adoption, and utilization of AI systems in administrative agencies.

From US-HKPA, HKHRDA TO HKAA: The Turnings of the US' China Policy and the End of Hong Kong's Full Autonomy

This paper traces the evolution of the US’s laws and policies toward Hong Kong running through the United States-Hong Kong Policy Act (US-HKPA), Hong Kong Human Rights and Democracy Act (HKHRDA) to Hong Kong Autonomy Act (HKAA). The US-HKPA, enacted under the Clinton Administration, after the Tiananmen massacre but before the handover of Hong Kong, is a product of US’s China policy based on engagement policy. It represents a compromise between the Congress and Executive and reflects soft-law nature, of which the implementation is largely dependent on Executive discretion. After three decades of engagement polices and more than twenties of China's resumption of sovereignty over Hong Kong, the US' China policy gradually changes and has seen a significant turn under the Trump Administration. In the midst of US-China tension and with the bipartisan support from the Congress, the HKHRDA and HKAA strengthen the review, reporting and sanctioning mechanism on the human rights, democracy and autonomy in Hong Kong. Nonetheless, the Trump Administration decision to suspend the preferential treatment of Hong Kong under the US laws on the ground of the erosion of high degree of autonomy guaranteed by the Sino-British Joint Declaration and HKBL poses questions about legality and legitimacy under public international law and WTO law. We argue that the US's sanctions against individuals and entities in undermining Hong Kong human rights, democracy and autonomy can be justified based on international human rights law given its limited scope, special designation and effectiveness and proportionality. We also argue that the trade related measures can be justified under general exception (public morals) and national security exception. We observe that the termination of preferential treatment based on separate customs territory status may cover four dimensions: rule of origin, tariffs, export control and currency. We submit that there is little guidance from GATT/WTO law on 'full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement', historical and comparison approaches may be adopted in appreciating whether Hong Kong still enjoys full autonomy in sustaining its WTO membership by virtue of separate customs territory status.

Book review: EU Executive Discretion and the Limits of Law, edited by Joana Mendes. (Oxford: Oxford University Press, 2019)

Book review: <i>EU Executive Discretion and the Limits of Law</i>, edited by Joana Mendes. (Oxford: Oxford University Press, 2019)

Executive Discretion in Administering the Government's Rights and the Delegation Problem

Governments regulate private conduct. They also exercise rights of ownership and contract that are like those of private people. From the founding to today, executive officials have exercised substantial policy discretion in managing the government's own resources. That practice is consistent with the text and structure of the Constitution. Administering the government's resources, and making policy judgments in doing so, is at the core of carrying the law into execution. The executive itself does not have power to create programs that employ federal resources such as federal funds, but when Congress creates such a program, it may leave many important choices to the executive. At most, the Constitution requires that Congress provide an intelligible principle to guide that discretion. The non-delegation principle concerning regulation of private conduct may be more demanding than that, but the exercise of the government's own rights is a distinct category of executive activity. The practical scope of this principle is substantial. Federal spending today is a major tool through which Congress affects behavior. Like spending and contracting, federal regulation through licensing takes the form of the administration of the government's resources. Licensing of broadcasting, for example, rests on the principle that the airwaves are public and not private property, and that private people may use that resource only on terms the government sets. Licensing schemes put the government in the position of an owner, able to give licenses that permit conduct that otherwise would violate the owner's rights. Congress therefore may give executive officials substantial discretion when it creates a licensing system. The important question is the extent of Congress's power to put the government in the position of an owner. Two well-known early examples of delegation to the executive, the Indian Commerce Act of 1790, and the regulation of steamboat safety, took the form of licensing. The historical evidence does not indicate that proponents of those systems justified delegation on the grounds suggested here. It does suggest that steamboat licensing was understood to be based on federal control of the public right of navigation of interstate waterways. The executive function of administering the government's resources is a distinct category of executive activity from the standpoint of constitutional structure, and the principles that apply to delegation in other contexts need not apply in that context.

Democratizing the Law of Social Distancing

Public health emergency statutes should give executive-branch officials clear authority to respond swiftly in a crisis while setting forth principles to guide executive discretion. Statutes already provide specific authorizations and statutory guardrails for individually targeted measures like isolation and quarantine. New legislation is needed to provide similarly specific authorizations and guardrails for compulsory social distancing and face mask orders. Reforms should facilitate democratic accountability for executive-branch decisions in addition to protecting individual rights. This article offers five key principles to guide legislation. First, statutes should mandate transparency, which is critical to secure the public’s trust. To ensure compulsory orders are conditioned on a demonstrated threat of significant risk and a suitable fit between the means and clearly stated ends, mandated disclosures should include statements of the strategic purpose orders are intended to serve, the scientific understanding on which they are based, and the criteria for when they can be lifted. Second, statutes should provide officials with a graded range of alternatives to ensure a sustainable emergency response that can be tailored to evolving conditions and understanding. To facilitate a scaled response that balances the risk of contributing to community transmission against other public priorities, classifications of services, businesses, and activities as essential or high-priority should be developed in advance. Third, statutes should provide substantive standards to ensure orders are neutral laws of general applicability that do not discriminate on the basis of religion. Fourth, to enable widespread voluntary compliance and minimize unjust distribution of the benefits and burdens of public health intervention, statutes should mandate that restrictions must be accompanied by financial and other material supports, legal protections, and accommodations for safer alternatives to restricted activities to the greatest extent possible within available resources. Finally, statutes should authorize criminal enforcement against individuals who violate social distancing orders only if executive-branch officials establish that it is the least restrictive alternative available to achieve the government’s purpose. These principles should also guide executive officials as they exercise the discretion granted to them under existing statutes.This article proceeds in four parts. In Part I, I describe the evolution of public health emergency law through the turn of the twenty-first century, which determined the governmental powers available at the start of the coronavirus pandemic. In the Part II, I describe the community mitigation strategy implemented to slow the spread of the 2020 coronavirus pandemic in the United States after containment efforts failed. In Part III, I map the legal challenges to coronavirus emergency orders adjudicated in state and federal courts and describe their key themes. Finally, I propose statutory guardrails for state legislatures to guide the use of compulsory social distancing and PPE for the general public.

'Protecting Congress’ Power of the Purse and the Rule of Law,' Hearing Before the House of Representatives Committee on the Budget, 116th Cong. (March 11, 2020)

This written testimony was submitted to accompany my appearance before the House Budget Committee concerning the congressional power of the purse. The testimony first lays out the constitutional provisions relating to the power of the purse, explaining the function of each. It then discusses the history of the legislative power of the purse, including seventeenth-century conflict between the Stuart Crown and Parliament, colonial assemblies' use of the power of the purse in their fights with royal officials, early republican state constitutions' assignment of control over budgetary matters to their legislatures, and the role of the congressional power of the purse in the ratification debates over the U.S. Constitution. This section also considers a number of statutes Congress has passed to structure its power of the purse, including the Organic Act for the Treasury Department, the Miscellaneous Receipts Statute, the Antideficiency Act, the Budget Act of 1921, and the Budget and Impoundment Control Act of 1974. Finally, guided by this history, the testimony suggests six reforms to strengthen Congress's power of the purse today: (1) greater—and perhaps more regularized—use of provisions zeroing out funding for some specific office or salary; (2) non-severability clauses in appropriations statutes; (3) the addition of criminal penalties to the Impoundment Control Act; (4) tightening the Antideficiency Act's language surrounding the acceptance of voluntary services in order to diminish executive discretion during lapses in appropriations; (5) congressional capacity-building; and (6) a return to regular order in the budget and appropriations process. These proposals aim at strengthening Congress as an institution by allowing and encouraging it to use the power of the purse to fuller effect. In doing so, they allow it to more fully inhabit the role that it was meant to play in our constitutional order.

The Constraining Power of the Purse: Executive Discretion and Legislative Appropriations

Discretion is fundamental to understanding interbranch interactions in the US separation-of-powers system. Yet, measuring discretion is challenging. The few existing measures have difficulty capturing both delegation and constraint in a consistent way over time. In this article, we propose a novel measure of executive discretion based on legislative appropriations to all agencies, weighted by spending limitations imposed by Congress in appropriations committee reports. We provide evidence for the validity of the measure, including a test of the ally principle to establish construct validity. Finally, we demonstrate the wider utility of the measure by employing it to evaluate hypotheses about how political control over the bureaucracy influences congressional policy making in the context of discretion. We show that agency design and presidential control are important factors in congressional decisions. Overall, we present a versatile measure of discretion that researchers can use to explore a variety of questions in American politics.

Policymaking in the United States: constraining a runaway executive branch

ABSTRACTThe American executive branch has mastered tools that allow it broad discretion while receiving little oversight from other branches. This article provides valuable insights on the complex legislative-executive relations, as Congress is often unable to effectively check the executive branch. This article provides an overview of the broad policymaking discretion that the presidency and federal agencies in the United States have acquired. It details the constraints that curb executive discretion including the doctrines courts utilise to discipline the executive branch. It discusses how judicial doctrines can be utilised to prevent the executive branch from gaining excessive powers. This article considers a timely debate on the nature and scope of expansive executive actions. Its analysis can inform future controversies surrounding unilateral actions and other executive initiatives by the current administration and future presidents.