Liberty's Nemesis by Dean Reuter

Author:Dean Reuter
Language: eng
Format: epub
ISBN: 9781594038389
Publisher: Encounter Books
Published: 2016-01-01T16:00:00+00:00

Congress could, of course, have restricted the jurisdictional reach of the Clean Water Act by providing a narrow definition to the term “waters of the United States” so that it extended only to the traditional definition of navigable waters, that is, those used or susceptible to use in interstate or foreign commerce. Instead, Congress delegated authority to two federal agencies to define that term in order to avoid the pushback from irate landowners that would naturally follow any such congressional action. Indeed, the EPA and the Corps of Engineers have tried on many occasions since the passage of the Clean Water Act to expand their reach over wetlands and other “waters of the United States,” to include remote, non-navigable creeks, streams, wetlands, and floodplains.25

This process results in the delegation of immense power to regulators, including the power to promulgate regulations that carry criminal penalties.26 With two notable exceptions in 1935,27 the Supreme Court has upheld every delegation to a regulatory agency, even in cases where congressional guidance has been virtually nonexistent or at best nebulous.28

The problem is compounded when courts defer, as some have done,29 to an agency’s interpretation of ambiguous statutes that contemplate criminal penalties under the Chevron doctrine.30 However, Justices Antonin Scalia and Clarence Thomas have indicated that they are skeptical about whether Chevron deference should apply when an agency interprets a vague criminal statute. In Whitman v. United States,31 the Supreme Court denied a criminal defendant’s petition for a writ of certiorari challenging his insider trading conviction. While agreeing with the denial, Justice Scalia, joined by Justice Thomas, issued a statement indicating that he would be “receptive to granting” a petition seeking review on the issue of how much deference is due to an agency’s interpretation of an ambiguous criminal law. He stated,

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.” James I, however, did not have the benefit of Chevron deference. With deference to agency interpretations of statutory provisions to which criminal prohibitions are attached, 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, 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. The Government’s theory [that agencies are entitled to such deference] . . . would . . . upend ordinary principles of interpretation. The rule of lenity requires interpreters to resolve ambiguity 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.

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