In Gonzales v. Reno the court chose to uphold the INS right to make a policy decision in the absence of Congressional direction. They did make known that they "are not untroubled by the degree of obedience that the INS appears to give to the wishes of parents, especially parents who are outside of this country's jurisdiction.". The court also showed concern with the INS policy of not considering

Question

the communist-totalitarian state to itself justify the consideration of Elian's asylum petition. Ultimately, however, the court found the INS decision not to be unreasonable. Do you believe it is possible for an administrative agency to be able to make fair and constitutionally defendable alternative decisions based on varying fact situations on a case-by-case basis, or must a single, fairly rigid policy be utilized?

What will be an ideal response?

Answer 1

Student answers will vary; however, certain points should be addressed. These points might include:
Due process and equal protection must always be preserved when decisions are made.
It is difficult if not impossible to allow total decision making discretion absent any guidelines and still maintain any consistency.
A lack of consistency will lead to public confusion and public distrust.
Fairness is often subject to interpretation, so inconsistent application of rules will lead to innumerable lawsuits and controversies.
Workload, time, and costs will limit an agency's ability to do individual investigations in every case.
Too much discretionary leeway can lead to the influx of politics into agency decision making.
General potential discretionary abuse situations might include:
If Elian were granted asylum solely because it's better to live in a democracy rather than a dictatorship, might it be also true that a rich parent should get custody of a child rather than the poor parent because it's better to have money than not?
Might a divorced parent who remarries get custody over the single-parent ex-spouse solely because a two-adult home is often more stable than a one-parent home?
Although unconstitutional, might an absence of guidelines lead to the subtle reintroduction of race, sex, religion, and other attributes into decision-making in a covert or indirect fashion?