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Abstract:
Discretionary powers of the executive are not only part of legal reality, but they are also often praised as a key tool for efficient and competent administration. In German administrative law scholarship, there are frequent calls for extending discretionary powers as a way to allow authorities to find expertise-based solutions to practical problems. Against this background, this article recalls that despite fulfilling important practical functions, providing the executive with decision-making capacity beyond applying legal rules risks undermining democratic legitimacy. The core promise of democracy is that the legal powers of the state are bound to collective decision-making of those affected by them. It is, therefore, not sufficient that an elected parliament delegates powers to executive bodies. Instead, state powers need to be directed in substance by laws made in an open democratic process. In German constitutional law, this democratic idea is reflected in a doctrine that requires parliament to regulate “essential matters” itself. In particular, the exercise of constitutional rights should not be left to the executive. While the main focus of the doctrine has so far been on executive general regulation powers, it also has important consequences for the granting of executive discretion in individual decisions. When executive decisions, in particular police measures, interfere with constitutionally protected liberty rights, legislation should specify what the executive is allowed to do. There is room for discretion, nevertheless, as to whether the executive uses its legal powers and who is addressed by a measure. As for executive powers to grant benefits, discretion has traditionally been taken to be less problematic, but the constitutional obligation to legislate for social security implies that parliament needs to specify the extent of social benefits and grant a legal right to them. Executive discretion in that field should be limited to the concrete modalities of benefits. In some fields of law, broader executive discretionary powers might be acceptable, but only provided that democratic legitimacy from the parliamentary process is substituted by a local democratic process. Nevertheless, participatory elements as they exist in infrastructure planning can hardly be considered to fully compensate the lack of guidance by parliamentary laws.
