Yesterday in a short statement respecting the denial of certiorari in Whitman v. United States, Justice Scalia — joined by Justice Thomas — raised an interesting question about whether “a court owe[s] deference to an executive agency’s interpretation of a law that contemplates both criminal and administrative enforcement.”  Here are some highlights (citations omitted):

I doubt the Government’s pretensions to deference.  They collide with the norm that legislatures, not executive officers, define crimes.  When King James I tried to create new crimes by royal command, the judges responded that“the King cannot create any offence by his prohibition or proclamation, which was not an offence before.”  James I, however, did not have the benefit of Chevron deference.  With deference to agency interpretations of statutory provisions to which criminal prohibitions are attached, federal administrators can in effect create (and uncreate) new crimes at will, so long as they do not roam beyond ambiguities that the laws contain.  Undoubtedly Congress may make it a crime to violate a regulation, but it is quite a different matter for Congress to give agencies—let alone for us to presume that Congress gave agencies—power to resolve ambiguities in criminal legislation.

It’s interesting how this position squares with Justice Scalia’s opinion for the Court in City of Arlington v. FCC , in which he rejected the argument that jurisdictional questions are not subject toChevron deference and instead adopted a brightline rule: “the preconditions to deference underChevron are satisfied because Congress has unambiguously vested the FCC with general authority to administer the Communications Act through rulemaking and adjudication, and the agency interpretation at issue was promulgated in the exercise of that authority.”  On the other hand, it does seem consistent with his approach to the major-questions doctrine, which he has famously framed as the rule that Congress “does not, one might say, hide elephants in mouseholes.”

No doubt his concerns here are motivated, in part, by the conflicting commands of Chevron deference and the rule of lenity, as he explains:

The Government’s theory that was accepted here would, in addition, upend ordinary principles of interpretation.  The rule of lenity requires interpreters to resolve ambiguity in criminal laws in favor of defendants.  Deferring to the prosecuting branch’s expansive views of these statutes “would turn [their] normal construction . . . upside-down, replacing the doctrine of lenity with a doctrine of severity.”

Justice Scalia is expanding on a fascinating concurrence by Judge Sutton (Sixth Circuit) — which Justice Scalia cites — in which Judge Sutton declares that the rule of lenity trumps Chevron deference.  Here’s a snippet from that concurrence (paragraph break and citations omitted), though the concurrence is worth reading in its entirety:

An agency’s interpretation of a statute does not prevail whenever the face of the statute contains an ambiguity.  Deference comes into play only if a statutory ambiguity lingers after deployment of all pertinent interpretive principles.  If you believe that Chevron has two steps, you would say that the relevant interpretive rule—the rule of lenity—operates during step one.  Once the rule resolves an uncertainty at this step, “there [remains], for Chevron purposes, no ambiguity … for an agency to resolve.”  If you believe that Chevron has only one step, you would say that Chevron requires courts “to accept only those agency interpretations that are reasonable in light of the principles of construction courts normally employ.”   If an interpretive principle resolves a statutory doubt in one direction, an agency may not reasonably resolve it in the opposite direction.  But the broader point, the critical one, transcends debates about the mechanics of Chevron:  Rules of interpretation bind all interpreters, administrative agencies included. That means an agency, no less than a court, must interpret a doubtful criminal statute in favor of the defendant.  Precedents in related areas confirm this conclusion.  All manner of presumptions, substantive canons and clear-statement rules take precedence over conflicting agency views.

As I have written elsewhere  in the context of Chevron and modern constitutional avoidance, I’m skeptical that substantive canons should apply at Chevron step one because they do not shed light on whether Congress has spoken on the precise question at issue.  Unlike semantic canons which are textual rules about how language is assumed to be used, substantive canons are courts’ attempts to put a thumb on the scale in favor of judicially preferred normative outcomes.  Under Chevron, by contrast, it is assumed that agencies — not courts — are the primary interpreters of the statutes they administer and thus should not be bound by judicially imposed policy preferences.

That said, perhaps the rule of lenity is different.  Or perhaps, as Justice Scalia suggests in this short statement in Whitman, this isn’t really a Chevron step one question about which interpretive tools should be used to resolve ambiguities, but a Chevron step zero question about whether Congress intended to delegate interpretive authority to federal agencies with respect to statutes that impose criminal penalties.

What I am confident about is that, now that Justice Scalia (and Justice Thomas) has expressed interest in this question, we will see more litigants presenting this question to the Court for its review and resolution.  [As Justice Scalia notes, the petitioner in Whitman did not raise this question.]