Судебный контроль дискреционных решений исполнительной власти в США

Российская юстиция. 2022. № 4. С. 53–63.

Lesiv B.

The ontology and axiology of constitutionalism rest on the undesirability of unlimited government and arbitrary use of power. In common law jurisdictions, the constitutionalization of power had started long before the adoption of the first modern constitutions. However, the success of the struggle against the arbitrariness of the executive power, culminating in the adoption of epochal documents - the Magna Carta, the Petition of Law and the Bill of Rights - would have been short-lived if it had not been developed and consolidated in judicial doctrines. As early as the 17th century, thanks to English judges, the central principle of sub Deo et lege was fixed, and when the new state was created, the Founding Fathers named the United States the “Empire of laws, and not of men”. Since then, the ‘telos’ of constitutionalism, as J. Sartori said, was to prevent the arbitrary power and to ensure the moderate, reasonable government. American judges, mindful of the causes of the Revolution, began to see even more anxiously that the officials in their relations with citizens used their discretion reasonably, not capriciously. Judicial experience and legal continuity have made it possible to generalize and strengthen specific methods of reviewing discretionary decisions, such as de novo proceedings, deference doctrines and the «arbitrariness-and-capricious standard», the study of which this article is devoted to. The empirical basis of the research consists not only of relevant statutes and leading scholar works, but also of more than 20 key US cases.

Keywords: судебный контроль, административное судопроизводство, рациональность в принятии решений, judicial review, principle of proportionality, принцип соразмерности, Discretionary Powers, дискреционные полномочия, US judiciary, rationality of decision-making