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by relying instead on executive clemency, administrative measures, and legislative reforms to moderate the scope of outdated or unpopular laws.