Accountability for Nonenforcement

Urska Velikonja*

In recent decades, almost every new presidential administration has come into office after having made campaign promises to deregulate some area of social or economic activity. Democratic candidates promise to lessen the burden on those living in poverty, including limiting enforcement against law-abiding undocumented immigrants. Republican candidates promise to lighten the regulatory burden on business: to pare back laws perceived as excessively costly, to reduce environmental and workplace safety standards, or to deregulate regulated markets. The current administration is no different.

Even large changes in enforcement can generally be defended as reasoned policy shifts, and protected from judicial review by Heckler v. Chaney,¹ a 1985 Supreme Court decision that affords agencies considerable enforcement discretion, so long as the change is not a prospective categorical program of nonenforcement, such as President Obama’s immigration policies (Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA)). This Article suggests that the choice between discretionary nonenforcement, which courts cannot touch, and categorical nonenforcement, which they can, is not binary. Enforcement priorities can result in enforcement declines that are substantial, but not down to zero, even in the absence of a public declaration of nonenforcement. If the availability of judicial review hinges on a public declaration of nonenforcement, the doctrine has a built-in bias in favor of well-heeled, well-connected classes of defendants. When the universe of those affected by the nonenforcement policy is small, an agency can communicate such a shift quietly, without a public declaration, and thus effectively immunize itself from judicial review under Heckler. An agency cannot do so when the universe of those affected includes several million undocumented immigrants or a large market of marijuana growers, sellers, and users.

But many significant shifts in enforcement are not categorical in the sense that enforcement does not decline to zero. Instead, enforcement declines by a substantial amount, observable as a pattern of low-priority enforcement. Like a categorical program, large shifts in enforcement over a short period of time are, in effect, similar to rule changes. Unlike categorical shifts, large changes in enforcement are immune from judicial review, and should be immune. Their adoption in the dark, however, is not consistent with the ideas that underpin the rule of law, including transparency, predictability, and accountability.

Changes in enforcement can move in more than one direction: enforcement can increase significantly as the Securities and Exchange Commission saw in the aftermath of the accounting scandals or the Madoff Ponzi scheme, and decrease precipitously, as evidenced at the Consumer Financial Protection Bureau under Acting Director Mick Mulvaney. There is no reason in constitutional or administrative law to treat changes in enforcement policy differently depending on whether enforcement increases or decreases.² Policy choices raise similar questions about reviewability and accountability, regardless of whether they increase or decrease enforcement. They also raise symmetrical questions about fair notice and due process and about the separation of powers. We demand that agencies give reasons for changes in rules; reason giving seems appropriate for significant shifts in enforcement, in order to match given reasons with observed enforcement practices, and to subject those reasons to political scrutiny through media coverage and congressional attention, even when judicial review is not available or appropriate.

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© 2018 Urska Velikonja. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, Georgetown University Law Center. For generous commentary and suggestions, I thank John Nagle, Zachary Price, Hillary Sale, Ed Rock, symposium participants at the Notre Dame Law School, the Tulane Corporate and Securities Law Conference, and the Institute of Criminology at the Faculty of Law, Ljubljana (Slovenia). All errors of law and fact are mine.

1 470 U.S. 821 (1985).

2 At the same time, individual decisions to bring an action are not subject to the same review as individual decisions not to bring an action. Defendants can defend, whereas individuals who are not targeted or victims of misconduct generally do not have a right to sue.