You might never have heard of Esquivel-Quintana v. Lynch, but it’s potentially the darkhorse case of this year’s Supreme Court Term. Judge Gorsuch’s recent concurrence in Gutierrez-Brizuela v. Lynch questioned the soundness of the Chevron doctrine itself—and in doing so kicked the hornet’s nest of administrative law scholars. Yet Esquivel-Quintana threatens to take a big bite out of Chevron—and has gone almost entirely under the radar. It’s worth your attention.
At issue in Esquivel-Quintana v. Lynch is whether a conviction for consensual sexual intercourse between a twenty-one-year old and a seventeen-year old constitutes the “aggravated felony” of “sexual abuse of a minor” under the Immigration and Nationality Act—thereby trigging the Act’s mandatory removal provision. Under federal law, the Model Penal Code, and the laws of forty-three states (plus Washington D.C.), this conduct would not even be illegal—let alone an aggravated felony.
A divided panel of the Sixth Circuit, however, concluded otherwise. Under the Immigration and Nationality Act, a noncitizen may not seek discretionary relief from removal when he or she has been convicted of a crime that the Act classifies as an “aggravated felony.” The Act defines “aggravated felony,” in turn, to include the “murder, rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). And the Board of Immigration Appeals, in turn, interpreted “sexual abuse of a minor” to include California Penal Code § 261.5(c), which makes it a crime for an adult to have sex with an individual “under the age of 18 years” whenever the age difference between the parties is more than 3 years.
Although acknowledging that this civil statute also had criminal applications, the majority deferred to the Board’s interpretation under Chevron based on a footnote in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), which explained that the Court had “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,” id. at 704 n.18.
On this point, Judge Sutton dissented. He would have applied the rule of lenity rather than Chevron deference and construed the ambiguity in the term “aggravated felony” in favor of Mr. Esquivel-Quintana, rather than against him—as the Board did. There are two pillars to his analysis. First, Chevron deference is inappropriate when it comes to criminal statutes, which “are for courts, not for the Government, to construe.” Abramski v. United States, 134 S. Ct. 2259, 2274 (2014). Second, statutes have only one meaning, whether in a criminal or civil context. See, e.g., Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004). As Judge Sutton memorably put it in an earlier case, “[s]tatutes are not ‘chameleons’ that mean one thing in one setting and something else in another.” Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 730 (2013) (Sutton, J., concurring). Putting these two principles together, he concluded that Chevron deference was inappropriate to a hybrid civil-criminal statute.
I think that it is likely that the Supreme Court will grant certiorari in Esquivel-Quintana—Professor Jeff Fisher has written an excellent certiorari petition, there are a two independently certiorari-worthy issues, and the Supreme Court needs more cases which aren’t likely to split 4-4.
Of course, even if the Court grants certiorari, it does not necessarily need to decide the Chevron issue. There are several plausible resolutions: (1) The Court could hold that the Sixth Circuit misapplied the categorical approach and reverse on that ground. (2) The Court could hold that deference is appropriate in Esquivel-Quintana because it involves a civil proceeding and leave open the issue of whether the statute could be interpreted more narrowly in the criminal context due to the rule of lenity. (3) The Court could decide that deference is inappropriate when it comes to a hybrid statute even in a civil proceeding.
In my view, the Court should take this third approach and hold that deference is inappropriate when it comes to a hybrid statute regardless of whether the issue arises in a criminal or civil proceeding.
First, the Supreme Court has made clear that an agency does not receive Chevron deference in interpreting an ambiguity in a criminal statute. As Abramski explains, “criminal laws are for courts, not for the Government, to construe.” 134 S. Ct. at 2274. And as Justice Scalia has observed, to afford Chevron deference in interpreting a criminal statute’s ambiguity “would turn the normal construction of criminal statutes upside-down, replacing the doctrine of lenity with a doctrine of severity.” Crandon v. United States, 494 U.S. 152, 178 (1990) (Scalia, J., concurring in the judgment).
This rule makes good sense. The policies underlying the rule of lenity and Chevron deference both suggest as much. The rule of lenity promotes due process values because it ensures that an individual has fair notice of what the law is before they are branded a criminal and suffer all the collateral consequences both tangible (penalties) and intangible (moral condemnation). Fair notice, in turn, is promoted by a neutral and detached magistrate providing the fairest reading of the law—not just a reasonable one. This rule also promotes equal protection values by ensuring that our most representative branch of government makes crimes (or speaks clearly and with specificity in delegating authority to do so)—not executive agencies, who are less accountable, more partisan, and have greater motivation and ability to gore someone’s ox. Indeed, an important reason why the founders limited the legislature’s ability to delegate its authority to the executive had to do with the criminal law—they had experienced “tyranny … at the hands of a whimsical king” as a result of this sort of accumulated power. United States v. Nichols, 784 F.3d 666, 670 (10th Cir. 2015) (Gorsuch, J., dissenting from the denial of rehearing en banc).
Under the theory of Chevron, moreover, courts presume that Congress intends to delegate policy-making authority to executive agencies through statutory ambiguity. But there is tension, if not outright contradiction, in presuming that Congress intended to delegate authority to create crimes through ambiguity. See, e.g., Merck & Co. Inc. v. Reynolds, 130 S. Ct. 1784 (2010). For over one hundred years, the Supreme Court has explained that executive agencies lack authority to define crimes unless Congress has expressly afforded them such authority—courts do not presume Congress has afforded agencies this power. See, e.g., United States v. Grimaud, 220 U.S. 506 (1911). Separately but relatedly, for over forty years the Supreme Court has suggested that the nondelegation doctrine might require a greater degree of specificity than an intelligible principle in order for Congress to delegate authority to executive agencies to define crimes—a standard that may not be satisfied by a statutory ambiguity. See also Touby v. United States, 500 U.S. 160, 165-66 (1984); see also, e.g., Fahey v. Mallonee, 332 U.S. 245, 249-50 (1947).
Second, it is no answer to the above point to respond that the statute might have one meaning in the civil context but another narrower one in the criminal context. A statute only has one interpretation—whether in a civil or criminal proceeding. See, e.g., Leocal v. Ashcroft, 543 U.S. 1, 11-12, n.8 (2004) (explaining that, if a statute has criminal applications, “the rule of lenity applies” to the Court’s interpretation of the statute even in immigration cases “[b]ecause we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context”); United States v. Thompson/Arms Co., 504 U.S. 505, 518, n.10 (1992) (plurality opinion) (explaining that “[t]he rule of lenity … is a rule of statutory construction whose purpose is to help give authoritative meaning to statutory language. It is not a rule of administration calling for courts to refrain in criminal cases from applying statutory language that would have been held to apply if challenged in civil litigation”). This principle goes back over 70 years. As Chief Justice Warren wrote, “[t]here cannot be one construction for the Federal Communications Commission and another for the Department of Justice.” FCC v. ABC, 347 U.S. 284, 296 (1954).
It’s true that context matters a great deal in statutory interpretation. But “context” in this sense refers to the textual context—not whether the case arises in the civil or criminal context. Textual context matters because it provides clues about how an ordinary English speaker would understand the language. So while the same word in a different statute may mean different things in different contexts, the same word in the same statute should not mean different things.
Third, privileging the rule of lenity over Chevron brings clarity to the criminal law and promotes reasonable reliance. If Chevron prevails over the rule of lenity, “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.” See Whitman v. United States, 135 S. Ct. 352, 353 (2014) (Scalia, J., statement respecting denial of certiorari) (analyzing this issue through the framework of whether the legislature or executive may “define crimes”). But if an agency interprets a statute according to the rule of lenity that rule is more stable under the doctrine of stare decisis. Additionally, United States v. Mead Corp., 533 U.S. 218 (2001), provides a multi-factor balancing test to determine whether an agency’s interpretation of a statute should receive Chevron deference. And there are serious notice problems if a person “must first endure the ‘open-ended rough-and-tumble of factors’ to determine ‘whether it commits a crime by falling afoul of a policy statement.” Carter, 736 F.3d at 732 (Sutton, J., concurring) (quoting Medellin v. Texas, 552 U.S. 491, 514 (2008)).
Clarity and reasonable reliance are especially important values to promote in light of recent trends in criminal law. As Professor Coffee explains, “a trend is evident toward the diminution of the mental element (or “mens rea”) in crime, particularly in many regulatory offenses.” John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. Rev. 193, 198 (1991). That trend is exacerbated by another—the sheer number of crimes on the books. There are now more than 4,000 criminal statutes and many more crimes are being enacted every day. John S. Baker, Jr., The Federalist Soc’y for Law & Pub. Policy Studies, Measuring the Explosive Growth of Federal Crime Legislation 3 (2004). James Madison long ago saw the dangers of these trends. See The Federalist No. 62, at 381 (James Madison) (Clinton Rossiter ed., 1961) (“It will be of little avail to the people, that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”). Privileging lenity over Chevron at least does a small part to mitigate these issues and promote fair notice of the law.
So what happens if the Court decides that Chevron deference is inappropriate for a hybrid civil-criminal statute? It is likely that Chevron will lose a good deal of its bite. Though there does not yet appear to be a definitive empirical study, anecdotal evidence suggests that there are a good number of these sorts of statutes—and they’re very familiar ones. Leading examples include the Clean Water Act, 33 U.S.C. § 1251 et seq.; the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.; the Truth in Lending Act, 15 U.S.C. § 1601 et seq.; and the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq. See Margaret V. Sachs, Harmonizing Civil and Criminal Enforcement of Federal Regulatory Statutes: The Case of the Securities Exchange Act of 1934, 2001 U. Ill. L. Rev. 1025, 1026. Accordingly, for those interested in the debate over Chevron, Esquivel-Quintana remains an important case to keep an eye on.
Disclosure: I, along with other lawyers at my firm, represented the National Association of Criminal Defense Lawyers as amicus curiae in connection with their amicus brief in support of Mr. Esquivel-Quintana’s petition for certiorari.
David Feder earned his J.D. summa cum laude from Harvard Law School in 2014. He previously served as a judicial law clerk to Judge Gorsuch. He currently works as an associate at Munger, Tolles & Olson in Los Angeles. He is also currently an Olin-Searle Fellow at Harvard Law School and he thanks the Olin-Searle Fellows in Law program for support in writing this post. This post reflects the views only of the author and not any employer—past or present. Readers may contact the author at firstname.lastname@example.org.