Reliance on nonenforcement.

• Author: Price, Zachary S.

ABSTRACT

Can regulated parties ever rely on official assurances that the law will not apply to them? Recent marijuana and immigration nonenforcement policies have presented this question in acute form. Both policies effectively invited large numbers of legally unsophisticated people to undertake significant legal risks in reliance on formally nonbinding governmental assurances. The same question also arises across a range of civil, criminal, and administrative contexts, and it seems likely to recur in the future so long as partisan polarization and sharp disagreement over the merits of existing law persist.

This Article addresses when, if ever, constitutional due process principles may protect reliance on federal officials' nonenforcement assurances. The Article proposes that answering this question ultimately requires balancing separation of powers costs against fairness considerations. As a general matter, the balance tilts in favor of preserving the enforceability of substantive prohibitions, so as to deny executive officials de facto authority to cancel statutes by inviting reliance on promised nonenforcement. In certain circumstances, however, particularly acute fairness concerns or limited separation of powers costs support recognizing a reliance defense.

Courts have already recognized a limited anti-entrapment due process defense in some cases in which enforcement officials mistakenly assure regulated parties that planned conduct is lawful. This Article proposes that an analogous reliance defense should bar use of information obtained in reliance on promised nonenforcement, including information provided to the government in connection with recent immigration programs; that other forms of indirect reliance, such as providing facilities or services to formally illegal businesses, should receive protection; that courts should sometimes protect individuals' reliance on congressionally mandated (rather than agency-initiated) nonenforcement; and that longstanding persistence of overt nonenforcement policies should eventually support a due process defense of desuetude. The Article also suggests that Presidents and Congresses in the future might seek to avoid risks of unfairness created by nonenforcement policies by relying instead on executive clemency, administrative measures, and legislative reforms to moderate the scope of outdated or unpopular laws.

TABLE OF CONTENTS INTRODUCTION I. FRAMING THE PROBLEM A. Existing Doctrine B. Marijuana and Immigration 1. The Policies 2. Questions of Authority, the Rule of Law, and Reliance C. A Dark Future? II. A BALANCING FRAMEWORK A. The Basic Doctrine Defended and Refined 1. General Rule 2. Recognized Exceptions a. Supreme Court Decisions h. Lower Court Elaboration 3. Recent Administrative Decisions Explained B. Competing Proposals Rebutted 1. Current Doctrine's Necessary Severity 2. Legalization Conflicts 3. Pure Prospectivity 4. Normative Balancing III. CLARIFICATIONS AND QUALIFICATIONS A. Case-Specific Estoppel as to Civil and Administrative Penalties B. Indirect Reliance 1. Provision of Information 2. Secondary Violations C. Congressional Nonenforcement D. Policy-Based Desuetude IV. FIRST-BEST SOLUTIONS FOR A SECOND-BEST WORLD A. The Clemency Alternative B. Administrative Authorities C. Congress's Role CONCLUSION INTRODUCTION

When, if ever, may private parties rely on official assurances that federal law will not apply to them? This question arises in a bewildering array of contexts, from humdrum to monumental. At the most everyday level, federal park police might allow parking in a particular spot only to return with a ticket, or harried Internal Revenue Service personnel might provide mistaken guidance on how to complete a tax return. More consequentially, federal law enforcement and intelligence officials may enlist undercover agents to join criminal operations as a means of uncovering crimes, some federal agencies issue no-action letters and advisory opinions indicating that planned conduct will not be punished, and a panoply of administrative agencies issue enforcement policies indicating how they plan to enforce the many detailed statutes and regulations they administer. Such government assurances are often formally nonbinding--they indicate only what the government plans to do, not what the law is--and yet at the same time they seem certain as a practical matter to induce reliance. Indeed, in three administrative law cases in the past five years, regulated parties have appeared before the Supreme Court crying foul because of an agency's unexpected shift in enforcement practice. (1)

Recently, this question has arisen in still more acute form as a result of two controversial enforcement policies, both approved at the highest levels of government and now in doubt as a result of Donald Trump's election as President, which occured just as this Article was going to press. First, in a series of guidance documents, the U.S. Justice Department announced enforcement priorities aimed at accommodating the increasing number of states that have amended their own laws to legalize marijuana. (2) Although possessing (let alone distributing) marijuana remains a federal crime, (3) the Department of Justice guidance indicates that federal prosecutors generally will not devote resources to enforcing federal narcotics laws against parties operating in compliance with state law. (4) Second, in two programs (one ultimately blocked by a preliminary injunction (5)), the Department of Homeland Security invited broad categories of undocumented immigrants to apply for "deferred action," (6) a two- or three-year promise of nonremoval that entailed eligibility for work authorization and other potential benefits. (7) As this Article was going to press, the incoming President's exact plans with respect to marijuana and immigration remained unclear, but his sharp anti-immigration rhetoric during the campaign suggested he might well choose to terminate the deferred action programs. (8)

The marijuana and immigration policies raise difficult reliance concerns because both policies, like other nonenforcement promises, were formally nonbinding: the policy documents made clear that they guaranteed nothing. (9) Yet as a practical matter, both policies effectively invited millions of people, many of them legally unsophisticated, to take significant legal risks. If the government resumes enforcement, marijuana entrepreneurs could be guilty of multiple federal crimes with stiff penalties, (10) while deferred action applicants will have provided the government with a removal case "on a platter." (11) A dissenting Fifth Circuit judge even touted this feature of the immigration programs as evidence of their validity:

[B]y encouraging removable aliens to self-identify and register, both [deferred action programs] allow DHS to collect information (names, addresses, etc.) that will make it easier to locate these aliens in the future--if and when DHS ultimately decides to remove them. DHS is, of course, a law enforcement agency, and this is what we would call "good policing." (12) It seems doubtful, to put it mildly, that deferred action applicants would have applied if they expected such use of their information; nor is it plausible that marijuana entrepreneurs (let alone their customers) expected federal officials to suddenly reverse course and throw them in jail. A key question the policies raise, then, is whether the detrimental reliance that these initiatives and other similar policies invite should receive legal protection. Of course, the government in the past has normally kept its promises so that no question of reliance would arise. Yet the divisive recent election gives us reason to worry that such informal good-government norms may provide much weaker restraints in the future. (13)

What is more, although any repudiation of President Obama's immigration policies will be a grave disappointment to many, renewed enforcement following executive assurances to the contrary might be equally important in responding to Trump's own administration in the future. In accepting the Republican Party's presidential nomination, Trump pledged ominously that on the day of his inauguration Americans would "wake up in a country where the laws of the United States are enforced." (14) Notwithstanding Trump's posturing, however, the breadth of current federal prohibitions makes extensive enforcement discretion inevitable in any administration, and past Republican Presidents have used nonenforcement to advance partisan policy objectives too. (15) Nor is it hard to imagine Trump or some other future Republican President adopting enforcement policies with respect to, say, gun control, environmental protection, or tax compliance that a Democratic successor would feel compelled to repudiate. Should any of these possibilities come to pass, the reliance question addressed here will arise in stark form, as indeed it already has in a series of cases challenging the fairness of marijuana prosecutions in light of announced federal enforcement policies. (16)

At present, this reliance question is governed by an untidy and undertheorized set of cases holding that due process bars prosecution in some circumstances but not others. (17) This Article offers an account of this case law and proposes an organizing principle for the doctrine. Although key decisions have often framed the issue in terms of intuitive unfairness, (18) in fact, reliance defenses require balancing separation of powers concerns against considerations of individual fair notice. On the one hand, protecting individual reliance on promised nonenforcement would enable executive officials to wipe away substantive laws, a result that would defy the basic separation of powers principle that executive officials can alter substantive legal obligations only if Congress has delegated authority to do so. (19) On the other hand, failing to protect individual...