Chevron deference: the legal principle that courts typically defer to an agency's interpretation of a statutory scheme that the agency is entrusted to administer. No doubt the doctrine applies to civil statutes. Chevron itself involved the Clean Air Act and EPA regulations interpreting the Act.
But what if the statute interpreted by an agency is a criminal statute? Should courts defer to agency interpretations then as well? The Tenth Circuit has said yes, relying on a Supreme Court decision from 1995. Three Justices dissented in that case, including Justices Scalia and Thomas.
Fast forward almost 20 years to this 3-page Statement, authored by Justice Scalia and joined by Justice Thomas, respecting the denial of certiorari in Whitman v. United States. This is a must read for criminal defense attorneys. This is how it begins: "A court owes no deference to the prosecution's interpretation of a criminal law. Criminal statutes 'are for the courts, not for the Government, to construe.'"
Indeed. Justice Scalia continues, stating the unexceptional proposition that legislatures, and not executive officers, define crimes. And, if that is so, then an executive agency has no business interpreting the reach of a criminal prohibition. It is difficult to argue with this logic. It is even more difficult to understand that this logic is not the law. A modern-day example of deference to an agency's interpretation of a criminal statute is the Sex Offender Registration and Notification Act (SORNA) and its application to pre-enactment offenders. SORNA, on its own, does not apply to pre-enactment offenders. But the Attorney General has said it does (and now he prosecutes pre-enactment offenders). In other words, the Attorney General has defined the crime, and now he enforces it. And courts are ok with this.
But, with Justice Scalia's Statement in Whitman, we know (or are reminded) that two Justices are not. The Statement is powerful stuff. If an executive agency has interpreted a criminal statute to allow the executive to prosecute your defendant, you should not be ok with that. And you should challenge it, knowing that you have two Justices on your side (if nothing else). That challenge could be based on the nondelegation doctrine, and/or, as Justice Scalia suggests, the Rule of Lenity (the statute itself being ambiguous, the rule of lenity would resolve that ambiguity in the defendant's favor). As always, contact us with questions.