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Silent and Ambiguous

November 29, 2017

SILENT AND AMBIGUOUS: THE SUPREME COURT DODGES CHEVRON AND LENITY IN ESQUIVEL-QUINTANA V. SESSIONS

By: David Hahn, Volume 102 Staff Member[1]

Twenty-year-old Juan Esquivel-Quintana—a lawful permanent resident from Mexico—had consensual sex with his sixteen-year-old girlfriend.[2] This violated California’s statutory rape statute,[3] and he pled no contest in state court.[4]

The Immigration and Nationality Act makes “sexual abuse of a minor” a deportable offense.[5] The same statutory provision also has a criminal application; it could support an enhanced prison sentence if Esquivel-Quintana were deported and then convicted of illegal reentry.[6] When the federal government learned of his California conviction, it initiated removal proceedings, arguing Esquivel-Quintana had committed “sexual abuse of a minor.”[7] The Board of Immigration Appeals (“BIA”) agreed, concluding that the term “sexual abuse of a minor” included California’s statutory rape statute.[8] On appeal, a divided Sixth Circuit held that, because “sexual abuse of a minor” is ambiguous, the BIA’s permissible interpretation deserved deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.[9] Judge Jeffrey Sutton dissented, arguing that the rule of lenity—and not Chevron—applies to “hybrid” statutes that have both civil and criminal applications.[10] The Supreme agreed to hear the case,[11] teeing up a much-anticipated question: does Chevron apply to agency interpretations of hybrid statutes?

The Supreme Court unanimously avoided the issue. The Court held that “sexual abuse of a minor” has a “generic federal definition” that only applies to minors under age 16. Because that federal definition makes the INA unambiguous, the case implicated neither lenity nor Chevron.[12] Litigants hoping for clarity on these two seemingly contradictory doctrines would have to keep waiting.

This Post briefly outlines the controversy over Chevron and lenity, proposes that a distinction between agency rulemaking and adjudication provides a solution, and speculates on the prospects for a future ruling from the Court.

I. BACKGROUND ON CHEVRON AND LENITY

Chevron and lenity are foundational concepts of statutory interpretation. When an agency exercises its delegated authority to interpret an ambiguous statute with the force of law, Chevron requires courts to defer to the agency’s interpretation unless it is unreasonable.[13] Recognizing that some policymaking is inherent in statutory interpretation, Chevron keeps courts out of the policy decisions Congress meant to leave to agencies.[14] Courts commonly address Chevron in two steps, deciding (1) whether the statutory provision at issue is ambiguous; and (2) whether the agency’s interpretation of the provision is reasonable.[15]

The rule of lenity requires courts to construe ambiguous criminal statutes in favor of the defendant.[16] Lenity has its origins in principles of due process and legislative supremacy.[17] It recognizes that defining crimes is a job for Congress and that the resulting definitions should give defendants fair notice of the prohibited conduct.[18]

Typically, Chevron and lenity don’t step on each other’s toes; it is “well settled” that Chevron does not require deference to agency interpretations of purely criminal statutes,[19] and agencies usually interpret civil statutes that do not implicate lenity. But what if a civil statute has criminal applications? The Supreme Court has applied the rule of lenity to these “hybrid statutes” in civil cases if the statutory provision at issue could support a criminal prosecution in another context.[20] So does the possibility of a criminal prosecution make Chevron inapplicable to hybrid statutes?

The Supreme Court has offered little guidance. In Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon,[21] the Court extended Chevron deference to an agency interpretation of the Endangered Species Act even though the disputed provision had criminal applications.[22] Brushing off lenity in a footnote, the Court stated: “We have never suggested that the rule of lenity should provide the standard for reviewing facial challenges to administrative regulations whenever the governing statute authorizes criminal enforcement.”[23]

But in Leocal v. Ashcroft,[24] after finding that a statutory provision unambiguously favored an immigrant in removal proceedings, the Court noted that the rule of lenity would require it to resolve any ambiguity in the immigrant’s favor because the statute had criminal applications.[25] The Court made no mention of Chevron.[26] This lack of clarity has led to understandable inconsistency among the circuits.[27]

Judge Jeffrey Sutton, the dissenter in Esquivel-Quintana, has been one of the most vocal advocates for prioritizing lenity over Chevron when interpreting hybrid statutes. In Carter v. Welles-Bowen Realty, Inc.,[28] Judge Sutton laid out his case in a concurring opinion: the rule of lenity prohibits deference to the executive branch’s interpretation of a criminal law.[29] Because statutes must have a single meaning across cases, courts must look to a hybrid statute’s “lowest common denominator”—that is, its criminal application.[30] The rule of lenity must therefore trump Chevron when agencies interpret hybrid statutes.[31] According to Judge Sutton, applying Chevron leads to the same result; agencies are bound by the same interpretive principles as courts, so an agency interpretation that ignores the rule of lenity would be inherently unreasonable and thus undeserving of deference.[32] Judge Sutton’s position has garnered judicial and academic support,[33] and he revived it in his dissenting opinion in Esquivel-Quintana.[34]

Critics rely on the Babbitt footnote as evidence that lenity does not trump Chevron, at least when dealing with notice-and-comment regulations.[35] According to this view, applying lenity before Chevron is inconsistent with lenity’s status as a canon of “last resort.”[36] Allowing the mere possibility of a criminal prosecution to dictate interpretations of primarily civil statutes could result in the same type of judicial policymaking that Chevron is meant to prevent.[37] Lenity could still play a meaningful role either as part of Chevron’s second step (as a factor in deciding whether the agency’s interpretation is reasonable[38]) or to resolve the case after an agency’s interpretation is determined to be unreasonable.[39] Perhaps most importantly, because hybrid statutes are increasingly common, requiring lenity to trump Chevron could render Chevron virtually inoperative in many regulatory contexts.[40]

Judge Sutton counters that the “sticker shock” involved in placing lenity over Chevron need not give courts pause.[41] On the contrary, lenity would fit easily into the list of existing exceptions to Chevron deference.[42] And far from giving courts policymaking power, applying the rule of lenity merely ensures that the power to define crimes stays with Congress alone.[43]

As long as hybrid statutes continue to play a significant role in the administrative state, the tension between these views is bound to persist.

II. A MIDDLE WAY

Reconciling Chevron and lenity requires sensitivity to both doctrines’ purposes. Either blanket rule (Chevron trumps lenity; lenity trumps Chevron) presents problems. Applying Chevron to all hybrid statutes flips lenity on its head, depriving criminal defendants of fair notice and the benefit of the doubt. Applying lenity to all hybrid statutes deprives agencies of the ability to exercise their delegated power, conflicts with Congress’s intent to have the agency resolve the ambiguity,[44] and undermines the goal of keeping policy choices out of courtrooms. Both Chevron and lenity are meant to protect legislative supremacy, but lenity goes further to promote fair notice.[45] An ideal solution must balance both of these goals.

Distinguishing between the agency powers of rulemaking and adjudication may help weave Chevron and lenity together. Rulemaking typically involves public notice and the opportunity to comment on a proposed rule.[46] Final rules are then published in the Code of Federal Regulations.[47] In theory at least, these procedures should provide fair notice to defendants convicted under hybrid statutes.[48] Adjudications, on the other hand, allow agencies to adopt rules in the common-law style.[49] An agency could broadly construe a hybrid statute in an enforcement proceeding to create a contemporaneous rule without giving the public—including the defendant in that case—notice or a chance to participate.

Chevron should trump lenity for final rules promulgated after notice and comment rulemaking procedures. This would give potential criminal defendants fair notice of the prohibited conduct but would allow agencies the freedom to resolve statutory ambiguity to make civil policy with minimum judicial interference.[50]

But lenity should trump Chevron for agency adjudications, particularly when those adjudications require interpreting an ambiguous statutory provision for the first time. In contrast to notice and comment rulemaking, in which agencies prospectively resolve statutory ambiguity, agency adjudicators must attempt to apply ambiguous statutes retroactively.[51] Applying the rule of lenity in these cases acknowledges that defendants lacked fair notice at the time of the conduct at issue.

Admittedly, this solution presents its own problems. Applying different standards of review to rulemakings and adjudications arguably infringes on agencies’ traditional freedom to choose the form of their action.[52] But this drawback is more doctrinal than practical. Agencies would still be free to choose whether rulemaking or adjudication were more consistent with their policy goals, and an agency confronted with statutory ambiguity in an adjudication should be bound by the rule of lenity no less than courts.[53]

Distinguishing between rulemaking and adjudication is also consistent with the Court’s treatment of Chevron and lenity to date. In Sweet Home, the Court applied Chevron to a notice-and-comment rule,[54] but in Leocal it observed that the rule of lenity should govern an immigration removal adjudication.[55] The rulemaking/adjudication distinction is one way to promote the best (and minimize the worst) that Chevron and lenity have to offer while reconciling the Court’s otherwise contradictory precedent.

III. PROSPECTS FOR FUTURE RULINGS

Agencies, defendants, and lower courts would all benefit from a clear statement from the Supreme Court about Chevron’s applicability to hybrid statutes. The unanimous opinion in Esquivel-Quintana might reflect a lack of interest among the Justices in confronting Chevron’s doctrinal idiosyncrasies, but there is reason to believe the Court will take up the issue before too long.

In 2014, the late Justice Scalia, joined by Justice Thomas, issued a statement respecting the denial of certiorari in Whitman v. United States.[56] Citing Judge Sutton’s concurrence in Welles-Bowen, he suggested he would be open to deciding the issue.[57] Justice Neil Gorsuch, the newest member of the Court, has been highly critical of Chevron in the past, even calling for it to be overturned.[58] Notably, Justice Gorsuch was not on the Court in time to participate in Esquivel-Quintana. While it is not clear whether he could have persuaded his colleagues to reach the Chevron/lenity issue in that case, he will almost certainly push to pare back Chevron where he can in the future.

Enter Scenic America, Inc. v. Department of Transportation. In a statement respecting the denial of certiorari, Justice Gorsuch, joined by Justice Alito and Chief Justice Roberts, suggested he would be open to adding “contract interpretation” to the list of exceptions to Chevron.[59] The statement might offer some clues into how Justice Gorsuch would treat the lenity issue. Both implicate competing “canons” (in this case, the principle that courts interpret ambiguous contracts against the drafter).[60] Both also cast doubt on the scope of Congress’s intent in delegating power to agencies.[61] Moreover, before joining the Court, Justice Gorsuch cited Judge Sutton’s view of Chevron and lenity favorably.[62] The odds are he will jump at the next chance to confront the issue. Combined with Chief Justice Roberts and Justices Thomas and Alito, who have shown willingness to prioritize substantive canons over Chevron in the past, he could grant certiorari in the next case that pits Chevron against lenity.

If certiorari is granted, the result is anyone’s guess. There is considerable variation in the Justices’ views of Chevron,[63] which may make it difficult to build a consensus on the Court. The middle approach laid out above could be an acceptable compromise. But even if the Court decisively declares that lenity trumps Chevron for all hybrid statutes, Chevron’s proponents can rest easy. Despite calls for its demise, Chevron is going nowhere.[64]

  1. J.D. Candidate, 2019, University of Minnesota. Thank you to Professor Kristin Hickman and Nicholas Bednar for their advice and feedback. ↑
  2. Brief for Petitioner at 6, Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) (No. 16-54). ↑
  3. See Cal. Penal Code § 261.5(c) (West 2014) (criminalizing “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator”). ↑
  4. Esquivel-Quintana, 137 S. Ct. at 1567. ↑
  5. See 8 U.S.C. § 1227(a)(2)(A)(iii); see also 8 U.S.C. § 1101(a)(43)(A). ↑
  6. See 8 U.S.C. § 1326(b)(2). ↑
  7. See Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1021 (6th Cir. 2016). ↑
  8. Matter of Juan Esquivel-Quintana, 26 I&N Dec. 469, 477 (BIA 2015). ↑
  9. Esquivel-Quintana, 810 F.3d at 1026–27. See generally Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). ↑
  10. Esquivel-Quintana, 810 F.3d at 1027 (Sutton, J., concurring in part and dissenting in part). ↑
  11. See generally Esquivel-Quintana v. Lynch, 810 F.3d 1019 (6th Cir. 2016), cert. granted, 137 S. Ct. 628 (Mem) (Oct. 28, 2016) (No. 16–54). ↑
  12. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1572 (2017). ↑
  13. United States v. Mead Corp., 533 U.S. 218, 226–27 (2001). ↑
  14. Chevron, 467 U.S. at 865–66. ↑
  15. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124–25 (2016). Judges and scholars have posited other ways to think about Chevron. See, e.g., Christensen v. Harris Cty., 529 U.S. 576, 596–97 (2000) (Breyer, J., dissenting) (advocating a multi-factor approach); Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 Va. L. Rev. 597, 599 (2009). ↑
  16. United States v. Santos, 553 U.S. 507, 514 (2008). ↑
  17. See Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 729 (6th Cir. 2013) (Sutton, J., concurring). ↑
  18. Id. ↑
  19. See, e.g., Abramski v. United States, 134 S. Ct. 2259, 2274 (2014) (“[C]riminal laws are for courts, not for the Government, to construe.”). ↑
  20. See United States v. Thompson/Center Arms Co., 504 U.S. 505, 517–18 (1992) (applying the rule of lenity in a civil tax case where the provision at issue could support criminal prosecution in another context). ↑
  21. 515 U.S. 687 (1995). ↑
  22. Id. at 721 (Scalia, J., dissenting). ↑
  23. Id. at 704 n.18 (majority opinion). ↑
  24. 543 U.S. 1 (2004). ↑
  25. Id. at 11 n.8 (citing Thompson/Center Arms, 504 U.S. at 517–18). ↑
  26. See id. ↑
  27. See Kristin E. Hickman & Nicholas R. Bednar, Chevron’s Inevitability, 85 Geo. Wash. L. Rev. 101, 135 n.264 (forthcoming 2017) (describing several approaches circuits have adopted to resolve cases that implicate both Chevron and lenity). ↑
  28. 736 F.3d 722 (6th Cir. 2013). ↑
  29. Id. at 730 (Sutton, J., concurring in part and dissenting in part). ↑
  30. A statute whose meaning shifts depending on the context would be of little use to regulated parties wanting to know what is lawful and what is not. See id. (“A statute is not a chameleon. Its meaning does not change from case to case.”). When a substantive canon requires a court to adopt a limiting construction, that interpretation must govern in all cases. Clark v. Martinez, 543 U.S. 371, 380 (2005). ↑
  31. Id. at 736. ↑
  32. Id. at 731. ↑
  33. See United States v. Whitman, 555 F. Appx. 98 (2d Cir. 2014), cert. denied, 135 S. Ct. 352, 353–54 (Nov. 10, 2014) (No. 14–29) (Scalia, J., statement respecting the denial of certiorari); Hill v. Coggins, 867 F.3d 499, 514 (4th Cir. 2017) (Bailey, J., dissenting); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1156 (10th Cir. 2016) (Gorsuch, J., concurring); Stewart v. NLRB, 851 F.3d 21, 35 (D.C. Cir. 2017) (Silberman, J., concurring in the judgment and dissenting) (describing the potential for criminal liability as “yet another reason for withholding deference”); Lisa Schultz Bressman, Chevron’s Mistake, 58 Duke L.J. 549, 578 (2009); Kristin E. Hickman, Of Lenity, Chevron, and KPMG, 26 Va. Tax Rev. 905, 933–34 (2007). ↑
  34. Esquivel-Quintana, 810 F.3d at 1027–32 (Sutton, J., concurring in part and dissenting in part). ↑
  35. Id. at 1024 (majority opinion); see also Patrick J. Glen & Katie E. Stillman, Chevron Deference or the Rule of Lenity? Dual-Use Statutes and Judge Sutton’s Lonely Lament, 77 Ohio St. L.J. Furthermore 129, 137–38 (2016). ↑
  36. See Shaw v. United States, 137 S. Ct. 462, 469 (2016) (observing that the rule of lenity applies “at the end of the process of construing what Congress has expressed”); see also David S. Rubenstein, Putting the Immigration Rule of Lenity in Its Proper Place: A Tool of Last Resort After Chevron, 59 Admin. L. Rev. 479, 493 (2007). ↑
  37. Nicholas R. Bednar, The Clear-Statement Chevron Canon, 66 DePaul L. Rev. 819, 865–66 (2017); Rubenstein, supra note 36, at 506. ↑
  38. Brian G. Slocum, The Immigration Rule of Lenity and Chevron Deference, 17 Geo. Immigr. L.J. 515, 576–77 (2003). ↑
  39. Rubenstein, supra note 36, at 517. ↑
  40. Bednar, supra note 37, at 865 (“Due to the prevalence of hybrid statutes, Congress would lose the authority to delegate interpretive questions to many agencies.”). ↑
  41. Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1031 (6th Cir. 2016) (Sutton, J., concurring in part and dissenting in part). Concerns that Judge Sutton’s position would deal a death blow to Chevron deference are likely overblown. As Kristin Hickman and Nicholas Bednar show in a forthcoming article, some form of deference will likely always follow from statutory ambiguity, and statutory ambiguity is here to stay. Hickman & Bednar, supra note 27, at 169–70. ↑
  42. Id. at 1031–32 (listing exceptions to Chevron). ↑
  43. Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 732 (6th Cir. 2013) (Sutton, J., concurring). ↑
  44. See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 994 (2013) (finding that congressional staffers use both textual and extratextual means to signal Congress’s intent for agencies to resolve ambiguities). ↑
  45. See Welles-Bowen, 736 F.3d at 731–32 (citing United States v. Bass, 404 U.S. 336, 348 (1971); McBoyle v. United States, 283 U.S. 25, 27 (1931)); Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865–66 (1984). ↑
  46. See 5 U.S.C. § 553. ↑
  47. See id. § 553(d). ↑
  48. Bednar, supra note 37, at 865–66. ↑
  49. SEC v. Chenery Corp., 332 U.S. 194, 203 (1947). ↑
  50. Bednar, supra note 37, at 865–66. ↑
  51. Id. at 866–67. ↑
  52. See Chenery, 332 U.S. at 203 (“[T]he choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.”). ↑
  53. Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 736 (6th Cir. 2013) (Sutton, J., concurring). ↑
  54. Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or., 515 U.S. 687, 703–04 (1995). ↑
  55. Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004). ↑
  56. United States v. Whitman, 555 Fed. App’x. 98 (2nd Cir. 2014), cert. denied, 135 S. Ct. 352, 353–54 (Nov. 10, 2014) (No. 14–29) (Scalia, J., statement respecting the denial of certiorari) (acknowledging that the Whitman’s procedural history made it a poor vehicle for confronting Chevron and lenity but expressing openness to deciding the issue in the future). ↑
  57. Id. at 353–54. ↑
  58. Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring). ↑
  59. Scenic America, Inc. v. U.S. Dep’t of Transp., 836 F.3d 42 (D.C. Cir.), cert. denied, No. 16-739, 2017 WL 4581902 (Oct. 16, 2017) (No. 16–739) (Gorsuch, J., statement respecting the denial of certiorari). ↑
  60. Id. (“[W]hat’s the case for supposing that Congress implicitly delegates to agencies the power to adjudicate their own contractual disputes . . . ?”). ↑
  61. Id. ↑
  62. Gutierrez-Brizuela, 834 F.3d at 1156 (Gorsuch, J., concurring). ↑
  63. See Hickman & Bednar, supra note 27, at 126–50 (describing eight of Chevron’s doctrinal variations). ↑
  64. See id. at 169–70. ↑
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