The United States' Supreme Court has never upheld a claim of estoppel against the government. A citizen relying on the government's advice does that at her peril: if the government wrongfully misrepresents or misinterprets a statute it can (and by some interpretations, must) go back on its word leaving the aggrieved citizen with no recourse. The Supreme Court has provided many arguments for this position, but the core of its rationale is premised on protecting what Europeans refer to as "the principle of legality." The principle of legality states that the Executive cannot waive requirements from primary legislation or deviate from statutes, even to protect an individual's reliance. This article demonstrates how similar concerns affect the legal systems of the United Kingdom, France, and Israel. However, embracing this principle comes with a price. There are costs to the (often innocent) citizen who relies on the government's advice and suffers monetarily or may find herself deprived of autonomy as well. There are also costs to the government: its legitimacy may be questioned and trust lost. The approach of the United States does not balance these costs; it completely favors the principle of legality. The other systems that are discussed here do a better job of balancing the interests of the government and individual while providing protection to the relying citizen. The U.K., France, and Israel not only protect reliance in a number of situations, these countries also provide monetary damages when forcing the government to adhere to its initial position would substantially harm the public interest. By drawing on comparative materials to underscore the interests at stake, this article demonstrates that it is unjustified for a system to fail to protect reliance. In offering an administrative law solution and a monetary remedy in cases where enforcement is inappropriate, I suggest an approach that both balances the principle of legality and also protects citizen interest.
Dorit Rubinstein Reiss,
Relying on Government in Comparison: What Can the United States Learn from Abroad in Relation to Administrative Estoppel,
38 Hastings Int'l & Comp. L. Rev. 75
Available at: https://repository.uchastings.edu/hastings_international_comparative_law_review/vol38/iss1/2