Tuesday, December 4, 2018

Who, other than Congress, gets to define criminal law? The AG? The DEA? The USSC?

Three pending/recent cases remind us that there may be limits when federal agencies act in ways that extend the reach of the criminal law.
In Gundy v. United States, the Supreme Court will decide whether the nondelegation doctrine allows the attorney general to decide whether to apply SORNA’s registration requirements to pre-SORNA offenders. More generally, Gundy raises the question of who, other than Congress, gets to define criminal law.
In United States v. Phifer, the Eleventh Circuit recognized that the rule of lenity limits an agency’s power to extend the reach of criminal law through its interpretation of its own regulations. In 2014, the DEA exercised its delegated authority to add drugs to the schedules of controlled substances on an emergency basis to schedule butylone and its “positional ... isomers.” Phifer was later charged with possessing ethylone, which qualified as a controlled substance only if it constituted a positional isomer of butylone. DEA had earlier created a regulatory definition of “positional isomer,” and ethylone was a positional isomer of butylone under this definition. But by its terms that regulatory definition applied to permanently scheduled drugs, whereas butylone had been scheduled on a temporary basis. Phifer argued that the court should instead apply the definition of “positional isomer” that was accepted in the scientific community, under which ethylone was not a positional isomer of butylone.
The Eleventh Circuit found that the regulation defining “positional isomer” was ambiguous as to whether it governed temporarily scheduled drugs. The government argued for Auer deference, under which courts defer to the promulgating agency’s interpretation of an ambiguous regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Auer deference would have been fatal here. But the Eleventh Circuit rejected the doctrine, reasoning that in a criminal case whose outcome turns on the meaning of an ambiguous regulation, the rule of lenity trumps Auer. Regulations underpin many federal criminal prosecutions. Phifer recognizes an important limitation on the reach of regulations.

Finally, in United States v. Havis, the Sixth Circuit questioned circuit precedent that deferred to the Sentencing Commission's interpretation of the Guidelines (which are approved by Congress) via the commentary (which is not). As the concurring judge put it, deference to agency decisionmaking is problematic enough in civil cases, but when deference to the Sentencing Commission extends a defendant’s prison time, “alarm bells should be going off."

Thanks to Tom Bartee, Branch Chief, Kansas City, Kansas FPD for this post.

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