The power to decide without producing a decision. Every other exercise of authority leaves an artifact that can be read, appealed and dated. This one leaves the world as it was, and nothing in the record shows that anybody acted.
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Discretion is usually described as latitude, which makes it sound like a margin around a rule. It is better described by what it produces, which is nothing.
An enforcement action produces a filing. A denial produces a denial. A conviction produces a judgment, and each of those can be read, dated, attributed and contested. The decision not to proceed produces an absence, and an absence has no author, no reasons and no date. The same office exercising the same authority generates a document when it acts and generates silence when it declines, so the record of any institution is a record of its actions and never of its forbearances.
[See THE OFFICIAL RECORD · PROCESS SAYS]
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AN ENTRY HAS AN AUTHOR AND THIS NEVER BECOMES ONE
The ledger is the folder's standing figure for how a thing becomes real to an institution. An entry is posted, by somebody, on a date, and from then on it is the fact.
A case not brought is never posted. The complaint not pursued closes with no finding. The rule not enforced this time leaves the rule intact and the instance unrecorded, and next time the rule is enforced nothing in the file shows that it was not enforced before. Discretion is the decision that never becomes an entry, so the thing that determined the outcome is the one thing the books do not contain.
This is why it cannot be audited by reading. An examiner can check every entry for years and find each one correct, and the examination will not reach a single decision made by declining to make one.
[See LAW OF THE BOOKS · ACCOUNTING THEOLOGY]
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AND THE COURTS HAVE SAID THEY WILL NOT LOOK
This is not a critic's inference. It is a holding.
In Heckler v. Chaney, 470 U.S. 821 (1985), the Supreme Court held that an agency's decision not to take enforcement action should be presumed immune from judicial review under section 701(a)(2), the Administrative Procedure Act's exception for action committed to agency discretion. Of every kind of decision an agency makes, the one class the courts presume they will not examine is the decision to do nothing, and the reasons given are that the agency is better placed to weigh its own priorities and resources.
The reasoning is not foolish and an institution that had to justify every case it declined would decline to have priorities. What follows is still that the exercise least visible in the record is also the one least reachable by review.
[See REMEDY · COMPLIANCE]
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AND NOBODY HAS STANDING TO ASK
The other half closes the question from the side of the person affected.
Linda R. S. v. Richard D., 410 U.S. 614 (1973): a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another. So the decision is unreviewable on the merits and the person it was made about is not a party to it, which means the two doctrines meet with nothing between them.
[See STANDING · DISQUALIFIED TESTIMONY]
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AND SHALL DOES NOT DISPLACE IT
The hardest case is the one where the legislature tried to remove the discretion in writing.
Jessica Gonzales held a restraining order against her estranged husband. Colorado's statute directed officers to use every reasonable means to enforce such an order. He took their three daughters in violation of it, she called the police repeatedly through the night, and he murdered the children.
In Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), the Court held she had no property interest in the enforcement of her order for purposes of the Due Process Clause, reasoning that a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes. A mandatory word in a statute did not produce a thing she held, because the tradition of declining to act was read as surviving the word that was written to end it.
What she was given was an instruction addressed to officers. What she believed she had been given was an entitlement. The order was real, it was validly issued, and it conferred on her nothing she could require anyone to do.
[See COURT'S TRUST · SACRIFICE ZONES]
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WHAT IT LEAVES THE ONE IT WAS EXERCISED ON
To contest an action she needs the action.
There is no docket number for the case not brought, no reasons to answer, no author to address and no date from which anything runs. She is told the matter was considered, and that statement is unfalsifiable and complete: consideration leaves no trace either, so its occurrence cannot be checked and its absence cannot be shown. Every instrument she has for contesting a decision requires a decision to exist, and the one made about her was made in the form that does not.
And the effect compounds, because the pattern is invisible by the same mechanism that hides each instance. A hundred declinations in one direction produce no hundred documents. They produce a quiet run of ordinary days.
[See AUDIBILITY · CREDENTIAL]
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This entry does not hold that discretion should be abolished, which would require every institution to pursue everything it noticed, and nobody's working day can be run that way.
It holds that the most consequential exercises of official power are the ones that generate no artifact, that the law has twice declined to reach them, and that a full and accurate account of what an institution did will omit every decision it made by not acting. The account will be true. It will also be missing the part that decided.
[See CAPACITY TO REFUSE · CESSATION]
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RegenerativeLaw is a religion in the direct-encounter Protestant tradition, carrying a documented four-century lineage through Böhme, the Behmenists, the Friends, and Penn, and it diagnoses trespass theology as an establishment of religion. Its exercise consists substantially in refusal: it shelters the conscientious refusal of performed subordination as religious exercise. This entry states sincere religious belief concerning matters of ultimate concern, protected under the First Amendment and, as to federal action, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb.
