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

Background

Petitioner Douglas F. Whitman was criminally prosecuted under §10(b) of the Securities Exchange Act of 1934; his conviction was affirmed by the Second Circuit.
The Second Circuit relied on the Securities and Exchange Commission’s (SEC) interpretation of §10(b) when upholding the conviction.
The legal question presented (but not pressed for certiorari here) is whether courts must defer to executive agency interpretations of statutes that carry both criminal and administrative enforcement.
Justice Scalia, joined by Justice Thomas, filed a statement respecting the denial of certiorari arguing against deference to agency interpretations in the criminal context.
Scalia warned that Chevron-style deference in criminal cases undermines the separation of powers and the rule of lenity by allowing agencies to effectively define criminal liability.
He acknowledged prior decisions (notably Babbitt) where the Court deferred to agency interpretations of statutes with criminal penalties but argued those decisions were wrongly decided or limited in weight.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether courts should defer to agency interpretations of statutes that have both criminal and administrative applications	Whitman argued against deference; criminal statutes must be construed by courts and ambiguities resolved for defendants	Government/SEC urged deference to agency interpretation (Chevron) even where statute has criminal reach	Court denied certiorari; did not decide the question on the merits in this case
Whether Chevron deference permits agencies to define criminal liability	Whitman: Chevron cannot authorize agencies to create or expand crimes; legislature defines crimes	Government: deference appropriate to resolve statutory ambiguities, including in mixed-use statutes	Scalia: Strongly opposed; said deference would let agencies create/uncreate crimes; reserved judgment for a properly presented case
Interaction between Chevron deference and the rule of lenity	Whitman: Rule of lenity requires resolving ambiguity in favor of defendants, conflicting with deference	Government: prior precedents (e.g., Babbitt) allowed deference in similar contexts	Scalia: Deference would invert lenity into severity; Babbitt’s footnote insufficient to displace lenity broadly
Weight of prior precedents that deferred to agencies in criminally penalized statutes	Whitman: Many cases support applying lenity and judicial interpretation	Government: Relied on appellate decisions deferring to agencies and on Babbitt	Court: Declined to review; Scalia signaled willingness to grant future certiorari on the question

Key Cases Cited

Chevron U. S. A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (establishes doctrine of judicial deference to reasonable agency statutory interpretations)
Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687 (1995) (Court deferred to agency interpretation of a statute carrying criminal penalties; footnoted discussion of rule of lenity)
Crandon v. United States, 494 U.S. 152 (1990) (discussion of statutory construction principles in criminal context)
United States v. Grimaud, 220 U.S. 506 (1911) (Congress may criminalize violation of regulations)
Leocal v. Ashcroft, 543 U.S. 1 (2004) (applied rule of lenity to criminal immigration statute interpretation)
United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992) (plurality opinion discussing lenity and statutory ambiguity)
Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722 (6th Cir. 2013) (opinion cited regarding limits on agency power to define crimes)
United States v. Royer, 549 F.3d 886 (2d Cir. 2008) (Second Circuit decision deferring to SEC interpretation of §10(b), relied on below)