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Should Chevron deference apply to agency interpretations of statutes with criminal applications?


Under the Chevron doctrine, when a federal statute is ambiguous, courts are supposed to defer to the implementing agency's interpretation of the statute, provided the interpretation is reasonable. The idea is that such statutory ambiguities represent implicit delegations of authority, by Congress to federal agencies, to resolve the issue. There are exceptions to this general rule, however. For instance, if the statutory ambiguity concerns an extraordinary question of great magnitude, courts may presume that Congress would not have meant to delegate interpretive authority to the agency. This was an important element of the Supreme Court's decision in King v. Burwell.

There is substantial debate over when Chevron should apply. One common concern is that it is inappropriate to apply Chevron in the context of a criminal statute, as this could deprive those subject to such laws of fair notice and conflict with other principles, such as the rule of lenity, that encourage courts to adopt narrower interpretations of laws imposing criminal penalties. But what about laws that have both civil and criminal applications? This is an important question because many regulatory statutes provide both civil and criminal penalties.

Today, in Esquivel-Quintana v. Lynch, the U.S. Circuit Court of Appeals for the Sixth Circuit split over whether Chevron deference is appropriate for such "dual" statutes. At issue was whether a state law conviction of unlawful sexual intercourse with a minor constituted a conviction for "sexual abuse of a minor" under the Immigration and Nationality Act. The majority, in an opinion by Judge Danny Boggs (and joined by Judge Deborah Cook) concluded Chevron deference was appropriate and that such a conviction did qualify. Judge Jeffrey Sutton dissented on this point, finding Chevron deference inappropriate.

Because the underlying issue is of particular importance, and is likely to be addressed by the Supreme Court in the near future, Judge Sutton's opinion concurring-in-part and dissenting-in-part offers much to consider.

First, here is Judge Sutton's discussion of areas of agreement with the majority:

Chevron permits agencies to fill gaps in civil statutes that Congress has delegated authority to the agency to interpret. Under the doctrine, courts presume that, when Congress leaves an ambiguity in an agency-administered statute, it intends the agency to fill the gap.

But Chevron has no role to play in construing criminal statutes. In 227 years and counting, the federal courts have never presumed that, when an ambiguity arises in a criminal statute, the congressional silence signals that Congress wants an executive-branch agency to fill the gap. For all of the theories of Chevron that have filled the U.S. Reports and the Federal Reporter, to say nothing of the law journals, the idea that Chevron is a tool for construing criminal statutes has yet to make an appearance. That is because criminal statutes "are for courts, not for the Government, to construe." Abramski v. United States. The doctrine does not give the Department of Justice (or for that matter any other federal agency) implied gap-filling authority over ambiguous criminal statutes.

Otherwise, that would leave this distasteful combination: The prosecutor would have the explicit (executive) power to enforce the criminal laws, an implied (legislative) power to fill policy gaps in ambiguous criminal statutes, and an implied (judicial) power to interpret ambiguous criminal laws. And it would permit this aggregation of power in the one area where its division matters most: the removal of citizens from society.

There may be good reason to debate the merits of Chevron today. Compare Philip Hamburger, Is Administrative Law Unlawful? (2014), with Adrian Vermeule, No, 93 Tex. L. Rev. 1547 (2015) (book review). But all can agree that, whatever the connection between ancient royal prerogatives and the like to modern agency law, Chevron has no role to play in the interpretation of criminal statutes.

As Judge Sutton says, "so far, so good." But then the disagreement begins, as the questions become more difficult.

But what happens when the same statute has criminal and civil applications? May Congress sidestep these requirements by giving criminal statutes a civil application? The answer is no. The courts must give dual-application statutes just one interpretation, and the criminal application controls. Statutes are not "chameleon[s]" that mean one thing in one setting and something else in another. Because a single law should have a single meaning, the "lowest common denominator"-including all rules applicable to the interpretation of criminal laws-governs all of its applications. That explains why United States v. Thompson/Center Arms Co. applied the rule of lenity to a civil tax case that turned on language that had civil and criminal applications. Time, time, and time again, the Court has confirmed that the one-interpretation rule means that the criminal-law construction of the statute (with the rule of lenity) prevails over the civil-law construction of it (without the rule of lenity). When a single statute has twin applications, the search for the least common denominator leads to the least liberty-infringing interpretation. . . .

The provision at issue in today's case is subject to the one-statute/one-interpretation rule because it has criminal and civil applications. The Immigration and Nationality Act makes a state or federal conviction for "sexual abuse of a minor" an "aggravated felony." The Act subjects aliens who have committed aggravated felonies (1) to civil consequences, most notably removal from the country, and (2) to criminal consequences, most notably increasing the maximum prison term for illegal reentry into the United States. . . .

the application of Chevron in this setting, as the court acknowledges, "threatens a complete undermining of the Constitution's separation of powers," while the application of the rule of lenity "preserves" them by maintaining the legislature as the creator of crimes. Lenity also ensures fair notice of criminal consequences, precludes the same agency from altering criminal laws back and forth over time (even over conflicting judicial interpretations and even without input from Congress), and ensures that the same "[r]ules of interpretation bind all interpreters, administrative agencies included." Lenity also avoids several "uninvited oddities [that] arise if courts but not agencies must adhere to the rule of lenity." By applying lenity in this setting, last of all, courts would avoid incentivizing Congress to enact hybrid statutes that duck under lenity's imperatives, to say nothing of other imperatives in construing criminal laws.

Where I part ways with the court is over its conclusion that, even though the rule of lenity ought to control here, we must defer to the government's position under Chevron all the same.

As Judge Sutton notes, the majority is not wholly unsympathetic to these concerns, but feels bound by the approach to this question apparently adopted in Babbitt v. Sweet Home, which involved a facial challenge to an agency interpretation of a provision that could be enforced with both civil and criminal penalties. As Sutton notes, courts have not been entirely consistent on this particular point, which could lead to Supreme Court review in an appropriate case - perhaps this case even.

Here's a little more from Judge Sutton's opinion that provides worthy food for thought over the long weekend.

Perhaps something else gives the court pause today-the potential sticker shock of transforming a government-always-wins canon (Chevron) into a government-always-loses canon (rule of lenity). But that may not be where the Court's cases necessarily lead. The Court's recent cases, as shown, just require two things: that the one-statute/one-interpretation rule governs dual-role statutes, and Chevron does not apply to that one interpretation. Those two requirements, however, may not dictate when the rule of lenity governs and when it does not. Yes, the rule of lenity frequently may dictate that one interpretation but that need not invariably be the case. Statutory "ambiguity" may mean one thing under Chevron and something else under the rule of lenity. If American Inuits have more than one way to describe snow, American lawyers may have more than one way to describe ambiguity. . . . Under Chevron, courts will defer to an agency interpretation if the relevant statute "is silent or ambiguous with respect to the specific issue." It
remains to be seen whether the same type of ambiguity triggers the rule of lenity. Chevron's domain and the rule of lenity's domain thus may not necessarily overlap in some cases.

What matters for present purposes is that Chevron has no role to play in construing hybrid statutes. Whether the rule of lenity necessarily will provide the answer in all of these cases is another matter, one for the Court ultimately to decide. In some settings, it may turn out, the Court simply will apply the normal rules of construction unaided by a zero-sum default rule, and will look to the rule of lenity only in the kinds of interpretive disputes that require it.

One last point. An exception to Chevron for dual-role statutes would not be the least bit unusual. Deference under that rule is categorically unavailable, the Supreme Court has held, in many settings: (1) agency interpretations of statutes the agency is not "charged with administering"; (2) agency interpretations of "the scope of the judicial power vested by [a] statute," such as the availability of a private right of action, (3) agency interpretations that result from procedures that were not "in the exercise" of the agency's authority "to make rules carrying the force of law," (4) agency interpretations with respect to "extraordinary cases" where it is unlikely Congress "intended . . . an implicit delegation" to the agency, and (5) agency interpretations of criminal statutes. An exception for statutes with civil and criminal consequences fits easily alongside these exceptions and originates from the same place as the last one. Indeed, it is exceedingly difficult to understand how Chevron could prevail in a dual-statute case. Since the founding, it has been the job of Article III courts, not Article II executive-branch agencies, to have the final say over what criminal laws mean. I would honor that imperative here and reject the idea that Congress can end-run this principle by giving a criminal statute a civil application.

[Note: I largely omitted the citations in the case excerpts for readability. The citations can be found in the opinion.]