The Sweet Fumes of Chevron

Can you still hear it?  It was the thunderous applause of the 99% when first The Intercept, then the New York Times, ripped the proposal that a mens rea requirement of “knowing” be imposed upon regulatory offenses. All because the Koch Brothers supported the bill, and anything the Koch Brothers support must be evil.  So can you still hear it?

Wanna bet it’s still ringing in Juan Esquivel-Quintana’s ears? He’s no corporation, and it wouldn’t have helped him anyway, but he probably gets it after the Sixth Circuit’s split decision in Esquivel-Quintana v. Lynch.  He lost, after the majority held that they’re bound by the Supreme Court’s ruling in Babbitt v. Sweet Home Chapter, Communities for Great Oregon. At Volokh Conspiracy, Jonathan Adler explains.

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.

What’s Chevron deference?  When Congress leaves it to an administrative agency to interpret vagaries in the law, under the premise that the agency has an expertise in the specific area at issue, courts will defer to the administrative agency’s interpretation. After all, they know stuff.

And so when regulations are backed up by criminal sanctions — because how else are you going to make people do what the government wants them to do? — the regulatory agencies charged with enforcement get to decide what all the words mean, and shockingly, they do so to their own benefit.  As in, they win, you lose, because they get to Humpty Dumpty the law.  And for those who want to write this problem off as just a corporate thing, tell that to Juan Esquivel-Quintana.

Under the canons of interpretation of criminal laws, vagueness is subject to the Rule of Lenity, which requires that the law be interpreted in favor of the accused.  While that applies with greater ease to laws that are purely criminal, what about civil regulations enforced by criminal penalties?  That’s where Sweet Home comes into play, where the Court said “defer, baby.” Of course, that case involved woodpeckers. Esquivel-Quintana’s case only involved peckers.

In dissent, Judge Jeffrey Sutton called bullshit.

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….

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.

Or, to lay it out a bit more plainly:

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). 

It’s not exactly that simple, but it kinda makes the point.  Even Orin Kerr, whose slavish adherence to precedent tends to give rise to the defendant getting screwed most of the time, agrees that Chevron deference shouldn’t always trump the Rule of Lenity.

Congress does not delegate the meaning of criminal statutes to the executive branch. If an agency has promulgated an interpretation of the elements of a crime, the rule of lenity trumps Chevron; the agency doesn’t have interpretive authority over the crime, and Chevron is inapplicable.

Of course, when the criminal sanction is used to enforce an administrative regulation rather than a statute, Orin thinks deference still should apply.

Note that the agency’s view would still be controlling when Congress adds a general criminal prohibition that violating an agency regulation is a crime. See, e.g., 16 U.S.C. § 3. In that case, the agency is enacting its own regulation within its zone of delegation, though, not interpreting a statute.

After all, shouldn’t every federal agency be allowed to make crimes at will, because they have dragons to slay, and it would be way too much work for Congress to do its job legislating such a big, complicated country like the United States without unelected back-office elves coming up with tens of thousands of ways to put people in prison for doing horrible things like selling “Turkey Ham” as “Ham Turkey” or with the words “Turkey” and “Ham” in different fonts.

Okay, too corporate-ish for you? How about injuring a federal shrub?  That ought to reasonate with the Occupy Shrubbery crowd, even if selling pasteurized process cheese without “a pleasing and desirable mild cheese taste” smells of a Koch Brothers’ scheme for world hegemony.

The notion of Chevron deference has always been troubling, in that it relies on an assumption that the people appointed (and the people they hire) to run federal administrative agencies actually have a clue what they’re doing, or aren’t zealots bent on using their clout to ram their politics down the throats of their agency’s constituency. Think Catherine Lhamon at the Office of Civil Rights in the Department of Education. Wonder why colleges (to the extent they don’t pray at her altar) fall to their knees at her command?  Experts?  Heckuva job, Brownie.

But when it comes to the confluence of civil administrative regulation and enforcement by imprisonment, the problem reaches entirely new depths. Some poor schmuck like Juan Esquivel-Quintana, who is unlikely to get invited to the Koch Brothers’ parties, found out that his life is subject to interpretation by some agency gnome.  And the Supreme Court approves, so the Sixth Circuit, not unsympathetically, shrugged.

What can they do when the Rule of Lenity meets this morass of administrative malarkey? If the courts don’t defer to the experts at administrative agencies, the Koch Brothers win. But so do guys like Juan, not that you care.


4 thoughts on “The Sweet Fumes of Chevron

  1. Levi

    I had a feeling that some of the snippets from A Crime A Day had been too good lately for you to pass up in a post.

    1. William Doriss

      We were wondering how long it would take for someone to post a comment? Almost twelve hours may not be unprecedented, but it’s pretty long for SJ with its thousands of followers. We were going to wait 24 hours before submitting. Ha. Submit what?!?
      We wonder why? A: Too complicated. Thanx for the Chevron Deference. We did not know, nor do we really care. “Strict Liability” and such; yes, we can relate. That Adler fellow is too much! Now we know why we did not go into “law”, as previously submitted. Good Grief, I got better things to do.

  2. Pingback: Crime and punishment roundup - Overlawyered

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