In “Reliance on Nonenforcement,” appearing in the William & Mary Law Review, my brilliant colleague Zach Price continues his leading work on executive–branch nonenforcement, an issue that has risen to the forefront in an era of divided and polarized politics.
The idea of executive nonenforcement is straightforward and has a long pedigree. Has a police officer ever stopped you for speeding but left you off with a warning? That’s executive nonenforcement (though at the state level). Less mundane and more charged examples exist at the federal level. The Obama Administration declined to enforce many federal marijuana laws and many federal immigration laws. Whether, when, how, and to what extent the executive branch can decline to enforce federal law, and what remedies for nonenforcement exist, are complicated questions that Professor Price has spent the last several years exploring.
This paper continues that trend with an equally compelling and pervasive problem. When the executive branch goes on record to articulate a policy of nonenforcement, to what extent can beneficiaries of nonenforcement rely on that policy? Nothing puts the question in such stark relief as President Trump’s decision to end DACA, the widely publicized Obama-era policy not to pursue deportation proceedings of certain undocumented immigrants.
One might think, at first blush, that the executive’s authority to enforce a valid law must be at least as great as the authority to not enforce that law—the power to create DACA must include the power to take it away. But things are not so simple. Announcing a policy of nonenforcement may also establish legitimate reliance interests that carry constitutional protections, including the constitutional obligation that the executive not retract that nonenforcement benefit without due process of law. (Presumably, limitations imposed by the Equal Protection Clause might also apply, if, for example, the President attempted to eliminate DACA only with respect to racial minorities.)
In his typically careful and intricate way, and analogizing to other instances in which the constitution protects reliance interests, Professor Price interrogates the constitutional protections for those who justifiable rely on executive assurances of nonenforcement. Although he finds such protections thin, he nonetheless articulates several instances in which the Due Process Clause protects reliance, such as if beneficiaries provide incriminating information in reliance on nonenforcement. In addition, he argues that reliance interests gain strength from other constitutional sources—such as the separation of powers—such as when Congress acts in support of nonenforcement. The result is an elegant and timely paper that adds much-needed clarity to the difficult problem of reliance on nonenforcement.