The Supreme Court has denied certiorari in Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, also known as the bumpstocks case. The D.C. Circuit relied on Chevron deference in upholding the regulations banning bumpstocks. In a statement respecting the denial of certiorari, Justice Gorsuch objected to the D.C. Circuit’s reliance on Chevron deference.

One of Justice Gorsuch’s reasons for objecting to Chevron deference in Guedes is well known to Chevron observers. Specifically, the interpretation of the relevant statute contained in the regulation could lead to criminal penalties in the future. I wrote about this concern many years ago. Since then, Judge Jeffrey Sutton of the Sixth Circuit has written eloquently about this issue, first in Carter v. Welles-Bowen Realty, and subsequently in Esquivel-Quintana v. Lynch, arguing that the rule of lenity should take precedence over Chevron deference. The Supreme Court dodged that issue in Esquivel-Quintana by concluding that the statute in that case was otherwise clear. Oddly, although Justice Gorsuch in his Guedes statement cited Judge Sutton’s opinion in Esquivel-Quintana, Justice Gorsuch did not mention the rule of lenity by name. The Supreme Court’s statements regarding Chevron, civil cases, and the rule of lenity have been mixed over the years. In 2014, in a statement regarding the Supreme Court’s denial of certiorari in Whitman v. United States, Justice Scalia called upon the Court in future to consider whether courts “owe deference to an executive agency’s interpretation of a law that contemplates both criminal and administrative enforcement,” also citing Judge Sutton. Although Esquivel-Quintana did not yield such consideration, perhaps Justice Gorsuch’s statement in Guedes will prompt litigants to try again regarding the relationship between Chevron and lenity.

Justice Gorsuch’s other point, however, was that the government had waived Chevron deference. He emphasized the government’s statement to the D.C. Circuit that, if the only way that court would sustain the regulation was by extending Chevron deference, then the government would rather the court reject the rule. He then claimed that the Supreme Court “has often declined to apply Chevron deference when the government fails to invoke it.” Well, maybe sort of, but perhaps not exactly.

On numerous occasions, the Supreme Court has ignored or failed to speak of Chevron deference when the Court arguably could have invoked it. Such judicial silence was the case in BNSF Railway Co. v. Loos, which Justice Gorsuch cited, and in which he dissented. Sometimes, even when the Court finds a statute to be clear, it nevertheless will mention that it is viewing the case through the prism of Chevron. But if the Court finds the statute to be clear using traditional tools of statutory interpretation, Chevron has no role to play, so even if the Court would have deferred under Chevron had it found the statute to be ambiguous, the Court need not say so expressly, or even to mention Chevron at all. Judicial silence regarding a doctrine is not precisely the same as expressly declining to apply it. Moreover, judicial silence typically lacks the stare decisis effect of an express statement. To my knowledge, the Court has never expressly declined to apply Chevron deference merely because the government has failed to argue for it. I do not believe that either of the academic articles that Justice Gorsuch cited suggests otherwise.

Nevertheless, beyond Guedes, the issue of Chevron waiver has been sweeping the circuit courts of appeals. Justice Gorsuch’s short statement in Guedes notwithstanding, whether the government actually can waive Chevron deference remains an open question. Richard Pierce and I have been tracking this issue in our bi-annual supplements to the Administrative Law Treatise. As David Hahn and I observe in a forthcoming article entitled Categorizing Chevron, 81 Ohio St. L.J. (to be published in 2020, but unfortunately not quite ready to be posted on SSRN), how one contemplates that question depends largely on whether one thinks of Chevron as rule of decision, a standard of review, or a canon of construction. We believe the bulk of the doctrinal evidence supports categorizing Chevron as a standard of review, and we argue that standards of review cannot be waived, but rather are to be determined by the reviewing court irrespective of the arguments, or the silence, of the litigants. Regardless, as Justice Gorsuch’s statement in Guedes makes obvious, Chevron waiver is yet another issue regarding Chevron‘s scope to watch.

Cross-posted at OfInterest.blog.