Federal enforcement policy and due process

Suppose you are operating a medical marijuana dispensary in California, or a recreational marijuana business in Colorado. State law allows your business. Under federal law, however, your activity is a crime - one potentially carrying a quite severe penalty. For the time being, an announced policy of the U.S. Justice Department treats state-compliant marijuana businesses as low priorities for enforcement. But what happens if the political winds shift? What if a future administration decides to prosecute you?

Now suppose you are one of the many immigrants who have received "deferred action" under an Obama administration initiative aimed at the "dreamers" - immigrants who came to this country without authorization as young children and have lived here ever since. Much like the marijuana policy, deferred action is a promise to put your case at the back of the line for enforcement. But again what happens if the political winds shift? Could a future administration renege and seek your immediate removal? Could it even use information from your own application against you?

These examples raise an important and under-appreciated question of due process: When, if ever, does due process protect reliance on federal enforcement policy?

This question in fact arises across a range of contexts. Undercover informants may rely on informal assurances that crimes committed to ferret out more serious crime won't be prosecuted. Taxpayers may rely on guidance from IRS helplines. And regulated industries may rely on agency promises to forbear from pursuing conduct they might have authority to punish.

Normally, the government keeps its promises and no due process question arises. But that could change. After all, current Republican presidential nominee Donald Trump has promised darkly that on his inauguration day Americans would "wake up in a country where the laws of the United States are enforced." Even if Trump loses, the increasingly polarized and erratic character of our politics makes it hard to believe enforcement policies will always remain consistent across administrations. At any rate, the question has already arisen in several marijuana-related prosecutions, yet case law to date addressing the problem is sparse and confused.

In my view, the due process analysis requires a nuanced balance between two conflicting objectives: restraining executive authority on the one hand, and assuring fair treatment of individuals on the other. Under governing case law, this balance generally tips in favor of preserving the enforceability of substantive laws. But in at least some contexts, the balance should tip the other way and courts should bar prosecution.

Why can't due process protect reliance across the board? For those sympathetic (as I am) to current marijuana and immigration policies, recognizing a general reliance defense is tempting. Having invited reliance on assurances of nonenforcement, it would be profoundly unexpected and unfair if the government suddenly prosecuted a marijuana entrepreneur or sought removal of a young dreamer, and fundamental fairness is a key consideration in due process.

Yet understanding due process to provide blanket protection in such circumstances would collide with key separation-of-powers limits on executive authority. Under our system of separated powers, presidents may hold discretion over how laws are executed, but they hold no inherent authority to alter or eliminate the law itself. The president can choose to focus enforcement resources on more important problems than marijuana businesses or law-abiding undocumented immigrants, but only Congress can wipe away statutes. Protecting reliance on nonenforcement across the board would obliterate this crucial limit on executive power. Executive officials could alter the governing law by inviting reliance on assurances that the law won't be enforced.

If you doubt the importance of this principle, just imagine what President Trump, or a like-minded successor, might do with nonenforcement policy. A number of states have "gun freedom" laws purporting to authorize local production of firearms in violation of federal law. Could a gun-friendly president preclude future prosecution by promising federal nonenforcement? The answer must be no, because the president can't cancel duly enacted firearms prohibitions. By the same token, however, President Barack Obama can't eliminate marijuana and immigration restrictions by inviting reliance on promises not to enforce them.

At the same time, though, even if due process doesn't protect reliance across the board, neither should a reliance defense always be unavailable. In some circumstances considerations of individual fairness should override separation-of-powers concerns.

For example, due process should prevent use of information from deferred-action applications for enforcement purposes, and it should likewise bar federal use of marijuana-related information voluntarily reported to state authorities. For separation-of-powers reasons, the government must remain free to enforce underlying substantive statutes. But its job shouldn't be made easier by the fact that officials earlier encouraged the conduct they're now seeking to punish. The government should need to build its cases the old fashioned way - through independent investigation and gumshoe detective work.

Similarly, due process should provide broader protection for reliance when non-enforcement is congressionally mandated. Congress has in fact temporarily barred use of Justice Department funds to prevent states from implementing laws authorizing medical marijuana. By completely halting federal criminal enforcement against medical marijuana, this appropriations restriction risks creating particularly severe confusion about what the law allows. At the same time, separation of powers concerns about executive overreach are absent because Congress has mandated the policy - and Congress can always change the substantive law if it wishes. Accordingly, due process should protect reliance by individuals, particularly low-level users, who can plausibly claim genuine confusion about whether their conduct was lawful.

Finally, if current marijuana and immigration policies (or other analogous policies) persist over a significant period of years, across multiple presidential administrations, the balance should eventually tip in favor of protecting reliance rather than preserving the law's enforceability. The longer an overt nonenforcement police endures, the stronger the reliance interests that build up around it. What is more, apparent popular ratification of the policies through repeated presidential elections could mitigate concerns about illegitimate executive override of substantive law.

Recognizing due process protection in these contexts could help mitigate the harsh effects on individuals of preventing executive officials from changing the law through enforcement policy. But it would be better for everyone, of course, if Congress and the president avoided these reliance problems altogether by amending the substantive laws at issue. Congress and the president should devote more energy to keeping the nation's substantive laws up to date with current public preferences. The continuing failure to change marijuana and immigration laws is shameful.

In the meantime, moreover, presidents have one important and under-used arrow in their quiver: They may pardon criminal offenses. While this power can't help with civil immigration enforcement, the president could issue a blanket pardon tomorrow for state-compliant marijuana entrepreneurs. Such action would not prevent prosecution for future conduct. But it would clear the deck for state-compliant marijuana entrepreneurs who relied to date on current enforcement policy. President Obama or his successor should do so without delay.

This column is based on Professor Price's forthcoming William & Mary Law Review article, "Reliance on Nonenforcement."