Relying on Government in Comparison: What Should the United States Learn from Abroad in Relation to Administrative Estoppel?

Abstract

The United States’ Supreme Court had never upheld a claim of estoppel against the government. A citizen relying on government’s advice does that at her peril: if the government was wrong, if it misrepresented the statute or interpreted it wrongly, it can (by some interpretations, must) go back on its word and the citizen has no recourse. The Supreme Court provided many arguments for that position, but the core of them involves protection of what the Europeans refer to as “the principle of legality”: the executive does not have the ability to waive requirements from primary legislation or deviate from statutes, even to protect reliance. Similar concerns enter the law in other systems – as demonstrated in this article for the U.K., France and Israel. However, this position comes with a price. There are costs to the (usually innocent) relying citizen, both in money and in autonomy. There are costs to the government, in loss of trust and potential loss of legitimacy. The United States’ approach does not balance these costs; it completely privileges the principle of legality. The other systems discussed here do a better job balancing both interests and providing some protection to the relying citizen. They protect reliance in a number of situations. And they provide monetary damages in other cases, where forcing the government to adhere to its initial position would harm the public interest too much. This article suggests that not protecting reliance is unjustified, and draws on the comparative materials to demonstrate the interests at stake and offer a solution to the dilemma that allows the court to protect the principle of legality while also protecting the citizen’s interest: by suggesting an administrative law solution, and by providing a monetary remedy in appropriate cases.

Keywords: Estoppel, Administrative Law, Comparative Law

JEL Classification: D73, K23