Waivers, Exemptions, and Prosecutorial Discretion

This is a guest post authored by Aaron Nielson and reprinted from the Yale Journal on Regulation's Notice and Comment blog.  Aaron Nielson is an Associate Professor at Brigham Young University Law School.  This post is the result of the author’s independent research and does not necessarily represent the views of the Administrative Conference or its Members, or the United States.

I’m pleased to announce that the Administrative Conference of the United States has recently posted a report I was commissioned to author. The report “draws conceptual distinctions among waivers, exemptions, and prosecutorial discretion; examines current practices in agencies that grant waivers and exemptions; reviews statutory and doctrinal requirements; and makes concrete procedural recommendations for implementing agency best practices.”

I hope you’ll find it interesting for a couple of reasons.

First, nonenforcement is important in its own right. Whether the subject is immigration, marijuana, healthcare, or the financial sector, in recent years federal decisions to not enforce the law have been the battleground for important disputes. Even aside from the constitutional implications, nonenforcement raises significant questions about fairness and predictability. On one hand, nonenforcement discretion can be put to good ends and sometimes is inevitable. On the other hand, it can also be put to bad ends. As Richard Epstein has explained, for instance, “when currying the favor of capricious government officials is required for a person’s well-being or a firm’s very existence, government abuse becomes nearly impossible to oppose.”

Second, nonenforcement matters because it provides insights into administrative law more generally. For example, it may not make sense to treat nonenforcement and retrospective review as distinct aspects of “admin law.” Rather, nonenforcement should be a trigger for retrospective review. If a prohibition no longer makes sense, it is understandable that agencies may employ their nonenforcement authority. But rather than rely too much on nonenforcement, the better path may be simply to change the law for everyone.

My report covers a lot of ground, including presenting some novel empirical findings and case studies. But I also think it makes an important conceptual contribution. In particular, it offers a visual taxonomy of nonenforcement. All too often, we speak of nonenforcement as if it were a monolithic concept. In fact, however, there are many context-specific considerations that should influence how we think about a particular nonenforcement decision. Some nonenforcement decisions are more dangerous than others. Here is that taxonomy:

The report has already gone through the Committee process within ACUS and various recommendations have been prepared. In December, the full Conference will vote on those recommendations during the plenary session. I learned a lot while researching and drafting this project; I hope you find it useful.