Case Information
*1 SUPREME COURT OF THE UNITED STATES
DOUGLAS F. WHITMAN 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 J USTICE S , with whom J USTICE T HOMAS 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 , 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 Atandi (CA10 2004); NLRB Oklahoma Fixture Co. , 332 F. 3d 1284, 1286–1287 (CA10 2003); In re Sealed Case , 223 F. 3d 775, 779 (CADC 2000); United States Kanchanalak , 192 F. 3d 1037, 1047, and n. 17 (CADC 1999); National Rifle *2 WHITMAN 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 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 Welles-Bowen Realty, Inc. (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 , 494 U. S. 152, 178 (1990) (S , J., concurring in judgment).
The best that one can say for the Government’s position is that in 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 *3 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 Ashcroft , 543 U. S. 1, 11–12, n. 8 (2004); v. Thompson/Center Arms Co. , 504 U. S. 505, 518, n. 10 (1992) (plurality opinion); id., at 519 (S , J., concur- ring in judgment). The footnote in 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 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.