Uncommon Allies: Bridging the Gap Between Auer Deference and the Rule of Lenity in Criminal Cases.

• Author: Ferrara, Lacey

1. INTRODUCTION

   Judicial deference to administrative agencies remains a highly contentious issue in administrative law. (1) Recently, the Supreme Court granted certiorari in Kisor v. Wilkie (2) to address whether it should abandon the long-standing judicial deference doctrine according to which courts must defer to an agency's interpretation of the agency's own ambiguous regulation unless the interpretation is "plainly erroneous or inconsistent with the regulation" (3)--referred to as Seminole Rock or Auer deference. (4) While the Court declined to overrule the doctrine, what emerged from Kisor is a deference rule far more limited in scope. (5) And while the Court made clear that Auer deference is not going away anytime soon, (6) it did not address whether Auer deference applies to the same extent and force--or at all--in criminal cases, or to civil regulations that carry potential criminal penalties. Justice Thomas and the late Justice Scalia suggested that they would take up this issue in the proper case, (7) but confusion remains among the circuit courts as to whether Auer deference is appropriate, or even constitutional, in the criminal context. (8)

   With the Court never squarely addressing this issue, circuit courts are left to rely on dicta in several Supreme Court decisions that lead to no clear answer. For example, in Ehlert v. United States, (9) the Court deferred to the Government's interpretation of a Selective Service regulation, affirming the defendant's criminal conviction for failing to submit to induction into the armed forces. (10) The Court explained, "since the meaning of the language is not free from doubt, we are obligated to regard as controlling a reasonable, consistently applied administrative interpretation if the Government's be such." (11) And in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, (12) the Court deferred to the Secretary of the Interior's interpretation of an ambiguous statute under Auer's counterpart doctrine, Chevron deference, (13) even though the statute carried criminal penalties. (14) The Court rejected the rule of the lenity--according to which courts must resolve ambiguous criminal laws in favor of defendants--in favor of deferring to the Secretary's interpretation, noting that "[w]e have 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." (15) In 1946, however, shortly after deciding Bowles v. Seminole Rock & Sand Co., the Court suggested that a strict rule of construction should apply in criminal cases. (16) In a number of subsequent cases, the Court further suggested that the rule of lenity should apply to statutes and regulations that carry both civil and criminal penalties. (17) And, perhaps most notably, the late Justice Scalia, joined by Justice Thomas, insisted that judicial deference to administrative agencies must give way to the rule of lenity because "[c]riminal statutes 'are for the courts, not for the Government, to construe.'" (18) Scalia further insisted that the Court's "drive-by ruling" in Sweet Home "deserves little weight." (19)

   The circuit courts have reached no consensus. The Eleventh Circuit held in United States v. Phifer that Auer does not apply in criminal cases and that the court should instead apply the rule of lenity. (20) The court declined to defer to the Drug Enforcement Administration's (DEA) interpretation of a regulation defining "positional isomer," a term with multiple and varying scientific definitions, and which was relevant to determining whether the defendant was guilty of possessing a controlled substance. (21) Similarly, in United States v. Moss, (22) the Fifth Circuit interpreted regulations authorized under the Outer Continental Shelf Lands Act (OCSLA) in favor of the defendants because the proposed interpretation of the regulations at issue was contradictory to the agency's earlier interpretation and carried criminal penalties. (23) The Fifth Circuit remarked, "[w]here, as here, a regulatory violation carries criminal penalties, the regulation must be strictly construed and cannot be enlarged by analogy or expanded beyond the plain meaning of the words used." (24) In NLRB v. Oklahoma Fixture Co., however, the Tenth Circuit found a statute that imposed criminal penalties for payments between employers and unions to be ambiguous and ultimately deferred to the National Labor Relations Board's interpretation. (25) The court reasoned that deference to the agency would be appropriate as long as deference was "not in conflict with interpretive norms regarding criminal statutes." (26) And in Esquivel-Quintana v. Lynch, the Sixth Circuit rejected the rule of lenity in favor of deferring to the Board of Immigration Appeals' interpretation of an ambiguous statute that carried both civil and criminal penalties. (27) While noting "compelling reasons" to apply the rule of lenity, the Sixth Circuit chose to follow Supreme Court precedent in applying Chevron deference to immigration laws in the absence of controlling authority to the contrary. (28) While the Supreme Court ultimately reversed this decision, it did so on the basis that the statutory language was not ambiguous. (29) The Court, therefore, did not reach the issue of whether Chevron deference or the rule of lenity should apply. (30)

   With federal regulations encompassing an extraordinary range of conduct, whether courts should defer to agencies in criminal cases carries critical implications. Indeed, no one really knows how many federal regulations impose criminal penalties, (31) and regulations--even in the civil context--often have a more direct role in defining our legal rights than statutes passed by Congress. (32) Compounding this uncertainty is the fear that agencies can stretch the already expansive federal criminal landscape beyond the plain language of regulations by advancing new interpretations without engaging in rulemaking procedures. (33) Another concern is that deferring to agencies in the criminal context violates separation-of-powers principles, permitting agencies, rather than Congress, to define criminal conduct. (34) Eliminating deference to administrative agencies in criminal cases may seem to be an obvious solution, especially when the rule of lenity instructs courts to construe ambiguous criminal laws narrowly. But an all-or-nothing approach fails to accommodate the complex reality of the modern administrative state and the necessary role that agencies play in implementing statutory schemes when authorized by Congress. (35) This approach also fails to acknowledge that, while only Congress has the constitutional authority to define new crimes, language has its limits, and even courts engage in delegated lawmaking when interpreting criminal statutes and regulations. (36)

   This Article argues that Auer deference, as limited in Kisor v. Wilkie, has a necessary and important place in federal criminal jurisprudence under certain limited circumstances. Specifically, courts should utilize the three-step framework set forth in Kisor to determine whether Auer deference or the rule of lenity is most appropriate based on the circumstances of a specific case, rather than rejecting agency deference altogether at the outset. The "character and context" inquiry under the final phase of the Kisor framework balances the normative values justifying Auer deference against the values justifying the rule of lenity. (37) In this way, courts can choose between Auer deference and the rule of lenity based on what makes more sense on a case-by-case basis.

   This Article proceeds as follows: Part II provides a brief overview of the evolution of Auer deference and the rule of lenity. (38) Part III compares these rules, revealing similarities that may allow both rules to work together. (39) Part IV explains how Kisor's three-step framework allows courts to balance the justifications underpinning each rule to determine which rule is more appropriate given the specific circumstances at issue. (40) Part IV also provides an example of a case in which Auer deference would be more appropriate and a case in which the rule of lenity would be more appropriate. (41) And finally, Part V briefly addresses other normative canons of construction that may not work as well in conjunction with Auer deference. (42)

2. BACKGROUND

   1. Auer Deference

      Judicial deference to agencies first took hold in the early twentieth century, (43) and by 1945, it was a "'common sense' idea" that agencies occupied a superior position as compared to courts when it came to determining what an agency meant when it promulgated a rule, and how an agency could best effectuate its purposes under a given rule. (44) This view was expressed in Bowles v. Seminole Rock & Sand Co. (45) and then affirmed fifty years later in Auer v. Robbins. (46)

      In Seminole Rock, a crushed-stone manufacturer challenged a regulation promulgated by the Administrator of the Office of Price Administration under the Emergency Price Control Act of 1942. (47) The Court declared that it "must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt." (48) The Court noted that, while congressional intent or constitutional principles may be relevant when choosing between different interpretations, "the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation." (49) As a result, a court's "only tools" when interpreting a regulation "are the plain words of the regulation and any relevant interpretations of the [agency]." (50) After consulting an agency bulletin, the Court interpreted the regulation so as to be consistent with the agency's guidance. (51)

      Half a century later, Justice Scalia wrote the unanimous opinion of the Supreme...