Whitman v. United States , 190 L. Ed. 2d 381 ( 2014 )

Cite as: 574 U. S. ____ (2014) 1
Statement of SCALIA, J.
SUPREME COURT OF THE UNITED STATES
DOUGLAS F. WHITMAN v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 14–29 Decided November 10, 2014
The petition for a writ of certiorari is denied.
Statement of JUSTICE SCALIA, with whom JUSTICE
THOMAS joins, respecting the denial of certiorari.
A court owes no deference to the prosecution’s interpre-
tation of a criminal law. Criminal statutes “are for the
courts, not for the Government, to construe.” Abramski v.
United States, 573 U. S. ___, ___ (2014) (slip op., at 21).
This case, a criminal prosecution under §10(b) of the Secu-
rities Exchange Act of 1934, 48 Stat. 491, as amended, 15
U.S. C. 78j(b), raises a related question: Does a court
owe deference to an executive agency’s interpretation of a
law that contemplates both criminal and administrative
enforcement?
The Second Circuit thought it does. It deferred to the
Securities and Exchange Commission’s interpretation of
§10(b), see United States v. Royer, 549 F.3d 886, 899
(2008), and on that basis affirmed petitioner Douglas
Whitman’s criminal conviction, see 555 Fed. Appx. 98, 107
(2014) (citing Royer, supra, at 899). Its decision tilled no
new ground. Other Courts of Appeals have deferred to
executive interpretations of a variety of laws that have
both criminal and administrative applications. See, e.g.,
United States v. Flores, 404 F.3d 320, 326–327 (CA5
2005); United States v. Atandi, 376 F.3d 1186, 1189
(CA10 2004); NLRB v. Oklahoma Fixture Co., 332 F.3d
1284, 1286–1287 (CA10 2003); In re Sealed Case, 223 F.3d
775, 779 (CADC 2000); United States v. Kanchanalak, 192
F.3d 1037, 1047, and n. 17 (CADC 1999); National Rifle
2 WHITMAN v. UNITED STATES
Statement of SCALIA, J.
Assn. v. Brady, 914 F.2d 475, 479, n. 3 (CA4 1990).
I doubt the Government’s pretensions to deference.
They collide with the norm that legislatures, not executive
officers, define crimes. When King James I tried to create
new crimes by royal command, the judges responded that
“the King cannot create any offence by his prohibition or
proclamation, which was not an offence before.” Case of
Proclamations, 12 Co. Rep. 74, 75, 77 Eng. Rep. 1352,
1353 (K. B. 1611). James I, however, did not have the
benefit of Chevron deference. See Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). With deference to agency interpretations of statu-
tory provisions to which criminal prohibitions are at-
tached, 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. Undoubtedly
Congress may make it a crime to violate a regulation, see
United States v. Grimaud, 220 U.S. 506, 519 (1911), but it
is quite a different matter for Congress to give agencies—
let alone for us to presume that Congress gave agencies—
power to resolve ambiguities in criminal legislation, see
Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 733
(CA6 2013) (Sutton, J., concurring).
The Government’s theory that was accepted here would,
in addition, upend ordinary principles of interpretation.
The rule of lenity requires interpreters to resolve ambi-
guity in criminal laws in favor of defendants. Deferring to
the prosecuting branch’s expansive views of these statutes
“would turn [their] normal construction . . . 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 judgment).
The best that one can say for the Government’s position
is that in Babbitt v. Sweet Home Chapter, Communities for
Great Ore., 515 U.S. 687 (1995), we deferred, with scarcely
any explanation, to an agency’s interpretation of a law
Cite as: 574 U. S. ____ (2014) 3
Statement of SCALIA, J.
that carried criminal penalties. We brushed the rule of
lenity aside in a footnote, stating that “[w]e have never
suggested that the rule of lenity should provide the stand-
ard for reviewing facial challenges to administrative regu-
lations.” Id., at 704, n. 18. That statement contradicts the
many cases before and since holding that, if a law has both
criminal and civil applications, the rule of lenity governs
its interpretation in both settings. See, e.g., Leocal v.
Ashcroft, 543 U.S. 1, 11–12, n. 8 (2004); United States v.
Thompson/Center Arms Co., 504 U.S. 505, 518, n. 10
(1992) (plurality opinion); id., at 519 (SCALIA, J., concur-
ring in judgment). The footnote in Babbitt added that the
regulation at issue was clear enough to fulfill the rule of
lenity’s purpose of providing “fair warning” to would-be
violators. 515 U.S., at 704, n. 18. But that is not the only
function performed by the rule of lenity; equally im-
portant, it vindicates the principle that only the legislature
may define crimes and fix punishments. Congress cannot,
through ambiguity, effectively leave that function to the
courts—much less to the administrative bureaucracy. See
United States v. Wiltberger, 5 Wheat. 76, 95 (1820). Bab-
bitt’s drive-by ruling, in short, deserves little weight.
Whitman does not seek review on the issue of deference,
and the procedural history of the case in any event makes
it a poor setting in which to reach the question. So I agree
with the Court that we should deny the petition. But
when a petition properly presenting the question comes
before us, I will be receptive to granting it.