In his concurring opinion today in Carter v. Welles-Bowen Realty, Judge Sutton addresses a very interesting legal question: If an administrative agency is charged with administering a statute with criminal sanctions, and the agency adopts a broad reading of the statute that ordinarily would be entitled to Chevron deference absent the criminal sanctions, does the rule of lenity that applies to the interpretation of criminal statutes change what interpretation the court must give to the statute?
Great issue. Off the top of my head, I think Judge Sutton’s answer is right. Congress does not delegate the meaning of criminal statutes to the executive branch. If an agency has promulgated an interpretation of the elements of a crime, the rule of lenity trumps Chevron; the agency doesn’t have interpretive authority over the crime, and Chevron is inapplicable. Granted, some Westlaw-surfing reveals an apparently contrary decision dealing with sentencing, Yi v. Federal Bureau of Prisons, 412 F.3d 526, 353 (4th Cir. 2005), but I think Yi is mistaken. Note that the agency’s view would still be controlling when Congress adds a general criminal prohibition that violating an agency regulation is a crime. See, e.g., 16 U.S.C. ยง 3. In that case, the agency is enacting its own regulation within its zone of delegation, though, not interpreting a statute.
Thanks Howard Bashman for the link.