Important En Banc Sixth Circuit Divide on Whether Criminal Statutes Receive Chevron Deference

In an order last Friday (in Gun Owners of America v. Garland), the en banc Sixth Circuit reported that it had divided evenly, eight to eight, on the question whether the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (widely known as ATF) properly classified a bump stock as a machine gun as defined by 26 U.S.C. § 5845(b). Such a divide results in the affirmance of the judgment below. In this case, that means that the district court’s ruling denying plaintiff’s request for a preliminary injunction against ATF stands.

Fourteen of the sixteen judges who took part in the case issued or joined opinions that explained their position. Notably, they divided seven to seven, broadly along ideological lines, on the question whether ATF is entitled to Chevron deference in interpreting the criminal provision at issue.

Under Chevron deference, if a statute is ambiguous, the administrative agency charged with applying the statute is entitled to adopt a reasonable interpretation of the statute, even if that interpretation is not the best interpretation. Chevron deference most commonly arises in the civil context, and its application in the criminal context would seem in tension with the rule of lenity, which holds that where a criminal statute is ambiguous, the most lenient interpretation of that statute should be adopted.

I have not yet had time to read the competing opinions with care. I offer here an excerpt from Judge Eric Murphy’s opinion (joined by six of his conservative colleagues):

Since the early days of our Republic, it has been a bedrock legal principle that our government cannot criminalize conduct and send people to prison except through democratically passed laws that have made it through both Houses of Congress and been signed by the President. Yet the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has sought to ban “bump stocks” in a far different way: through a regulation adopted by a federal agency alone….

The circuit courts that have upheld the Bump-Stock Rule have not suggested that the ATF’s contrary view “is the better reading of the statute.” Indeed, they have not even felt the need to ask which is the better reading. Id. They have instead held that they must review the ATF’s reading under Chevron’s “two-step” approach….

I find three problems with this approach. First, the courts justify their use of Chevron with irrelevant cases that interpret statutes expressly delegating power to an agency to enact criminal regulations. Second, the courts wrongly expand Chevron’s domain by holding that Congress impliedly delegated to the Attorney General the power to interpret a criminal law merely because it gave him a general authority to enact regulations. Third, even under Chevron’s regime, the courts improperly find ambiguity without attempting to figure out the statute’s meaning.

Murphy goes on to explain (among other things) that courts must apply the rule of lenity at Chevron’s step one in order to determine whether it resolves any ambiguity in the criminal statute. In other words, the rule of lenity can operate to render unambiguous, for purposes of Chevron, a criminal provision that would otherwise be ambiguous.