Discretionary power

“ If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt. ”

“ The power is conferred for their benefit, not his; and the intent of the legislature, which is the test in these cases, seems under such circumstances to have been 'to impose a positive and absolute duty.' But, under other circumstances, where the act to be done affects no third persons, and is not clearly beneficial to them or the public, the words 'may' do an act, or it is 'lawful' to do it, do not mean 'must,' but rather indicate an intent in the legislature to confer a discretionary power. ”

“ The discretionary power, which in certain cases is vested in the Executive, of selling or not selling land on particular runs, gives it an immense and undue influence, and is liable to lead, as experience has shown, to gross corruption amongst members of the Assembly and others who have influence with the Ministers for the time being. ”

“ If legislative power is delegated subject to a condition, it is a requirement of constitutional government that the condition be fulfilled. In default of such fulfillment, there is in truth no delegation, and hence no official action, but only the vain show of it. The analogy is remote between power so conditioned and that in controversy here.
Discretionary action does not become subject to review because the discretion is legislative rather than executive. ”

“ If they should, it will be proper to give him a discretionary power to produce his commission or not, as he shall find it likely to succeed, to give him full powers and clear instructions concerning the borrowing of money; and the man himself above all should have consummate prudence, and a caution and discretion, that will be proof against every trial. ”

“ In theory, discretionary powers have advantages in giving a law sufficient flexibility to meet varying conditions, but in practice, where granted to modify reasonable legislation, they place worthy officials in the difficult position of being obliged to refuse,—in opposition to any influence that may be brought to bear,—to exercise discretion plainly permitted to them, and they open to unworthy officials of all grades innumerable opportunities for corruption and unjust discrimination. ”

“ This power is, as stated, discretionary; there are of course cases where the Chancellor might properly conclude that parties should be remitted to an action at law. But this is not one of those cases. ”

“ The power of discretionary disqualification by one law of Parliament, and the necessity of paying every debt of the Civil List by another law of Parliament, if suffered to pass unnoticed, must establish such a fund of rewards and terrors as will make Parliament the best appendage and support of arbitrary power that ever was invented by the wit of man. This is felt. The quarrel is begun between the Representatives and the People. The Court faction have at length committed them.
In such a strait the wisest may well be perplexed, and the boldest staggered. ”

“ The modern doctrine is that "the Legislature cannot, by any contract, divest itself of the power to provide for these objects.... They are to be attained and provided for by such appropriate means as the legislative discretion may devise. That discretion can no more be bargained away than the power itself." ”

“ But as the contention at best concerns not a want of power, but a mere excess or abuse of discretion in exerting a power given, it is clear that it involves considerations which are beyond the reach of judicial power. ”

“ The word law in the clause of the constitution he had last noticed, was not meant in reference to the Treaty-making power; but in reference to Congress. A law prescribes a rule of conduct; it is the expression of the will of the proper authority; it is the result of discretion. Legislation implies deliberation. If a law is the expression of the will, must not an appropriation law be equally so? But gentlemen had found out a new-fashioned exposition of the word discretion, and, according to their definition in fact, it was no discretion at all. ”

“ We say this because, although it be conceded, for the sake of the argument only, that an exercise of power which was plainly an abuse of discretion, depriving of the right which the statute plainly gave, would be subject to correction by the courts, such concession would be here without influence, since there is no basis whatever upon which to rest an assumption of abuse of discretion. ”

“ Bound by Legislative Purpose and Spirit The discretion in exercising public power is vested to the state organs by law, thus should be exercised in a way appropriate to the legislative purpose and the legislative spirit of the legal provision that is the basis of the discretion. ”

“ Whenever, in his opinion, it is expedient? The meanest individual in society, in the most humble transactions of business, can avail himself of the discretion of his confidential agent, in cases where his own cannot be applied. Is it possible that the combined wisdom of the nation is debarred from investing a similar discretion, whenever, from the nature of the particular power, it is necessary and proper to its execution? ”

“ Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered. ”

“ The range of discretion that a state possesses in classifying objects of legislation we may be excused from expressing, in view of very recent decisions. The power may be determined by degrees of evil, or exercised in cases where detriment is specially experienced. ”

“ The law contemplates that, under such circumstances, orders shall be given to carry the power into effect; and it cannot therefore be a correct inference that any other person has a just right to disobey them. ”

“ As a general rule, it is no doubt expedient and wise that the operations of the State and national governments should, as far as practicable, be conducted separately, in order to avoid undue jealousies and jars and conflicts of jurisdiction and power. ”

“ It has been wisely and aptly said that this is a government of laws, and not of men; that there is no arbitrary power located in any individual or body of individuals; but that all in authority are guided and limited by those provisions which the people have, through the organic law, declared shall be the measure and scope of all control exercised over them. ”

“ I beg leave further to observe, that, for another reason, I think there is a propriety in leaving this power to the general discretion of the executive magistrate, rather than to fetter it in any manner which has been proposed. It may happen that many men, upon plausible pretences, may be seduced into very dangerous measures against their country. ”

“ A recent case has served to test the application of its IVth Article, which provides that neither party shall be bound to deliver up its own citizens, but that the executive authority of each shall have the power to deliver them up if in its discretion it be deemed proper to do so. ”

“ The argument for the general power from the absence of a special prohibition proceeds upon a misconception of the nature of the Federal government as one of limited powers. It can exercise only such powers as are specifically granted or are necessarily implied. ”

“ What will promote these objects the legislative power decides with large discretion, and the courts have no authority to review the exercise of that discretion. It is only when laws are passed under color of the police power and having no real or substantial relation to the purposes for which the power exists, that the courts can refuse to give them effect. ”

“ First, are the relations of the general Government to interstate commerce and the transportation of the mails such as to authorize a direct interference to prevent a forcible obstruction thereof? Second, if authority exists,—as authority in governmental affairs implies both power and duty,—has a court of equity jurisdiction to issue an injunction in aid of the performance of such duty? ”

“ It is of the essence of judicial power that judges in deciding cases shall be bound by principles, rules and precedents, that they shall not be permitted to exercise arbitrary discretion, and that they shall be required to give reasons for their decisions. A court bound by no rules or principles at all would not be exercising judicial power as we understand that term. ”

“ If it be really the duty, under the Constitution, of the Legislature or of any branch or member of it to perform a particular act, there is no room for the exercise of discretion. The thing must be done. ”

“ This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution ”

“ It does not follow from the fact that the executive has this range of discretion, deemed to be a necessary incident of his power to suppress disorder, that every sort of action the Governor may take, no matter how unjustified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. ”

“ It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other. ”

“ Its application to particular conditions must necessarily be within the reasonable discretion of the legislative power. When such discretion is exercised in a given case by means appropriate and which are reasonable, not oppressive or discriminatory, it is not subject to constitutional objection. ”

“ But it has often been said that the fact that the exercise of power may be abused is no sufficient reason for denying its existence, and, if restrictions are to be placed upon the exercise of this authority by the attorney general, it is for the legislative body which created the office to enact them. ”

“ The truth is, the moment it is admitted that a party may appear voluntarily, or be held in any other way to answer in any state, which is neither his own nor that of his adversary, the whole matter is settled to be one of mere procedure and service of process; jurisdiction is no wise involved in it, for that is matter of fundamental law, and not at the discretion of parties. ”

“ I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power. ”

“ Now, the right of the States to annul at discretion the acts of the General Government is not only not anarchy itself, but is the simplest and most beautiful part of the whole machinery of our political institutions. ”

“ Unlike an administrative order or a court judgment adjudicating the rights of individuals, which is binding only on the parties to the particular proceeding, a valid exercise of the rule-making power is addressed to and sets a standard of conduct for all to whom its terms apply. It operates as such in advance of the imposition of sanctions upon any particular individual. It is common experience that men conform their conduct to regulations by governmental authority so as to avoid the unpleasant legal consequences which failure to conform entails. ”

“ There is no instance in which the laws say that the individual should be bound in one case, and at liberty to judge whether he will obey or disobey in another. The cases are parallel. Abuses of the power over the individual persons may happen, as well as over the individual states. ”

“ Expert discretion is the lifeblood of the administrative process, but 'unless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion.' New York v. ”

“ Moreover, a distinction must be observed between the regulation of an activity which may be engaged in as a matter of right and one carried on by government sufferance or permission. In the latter case the power to exclude altogether generally includes the lesser power to condition and may justify a degree of regulation not admissible in the former. ”

“ Whether the end sought to be attained by an act of Congress is legitimate is wholly a matter of constitutional power and not at all of legislative discretion. Legislative congressional discretion begins with the choice of means and ends wit the adoption of methods and details to carry the delegated powers into effect. ”

“ And, though they affect commerce to some extent, yet such effect is the result of the exercise of an undoubted power in the state.' Pages 589, 590. 'A discretion on this subject must be exercised somewhere, and it can be exercised nowhere but under the state authority. The state may regulate the sale of foreign spirits, and such regulation is valid, though it reduce the quantity of spirits consumed. This is admitted. And how can this discretion be controlled? The powers of the general government do not extend to it. ”

“ The court said:* 'There are undoubtedly many statutory requisitions intended for the guidance of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such, generally, are regulations designed to secure order, system, and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected. ”