1
`
`
`
`
`
`
`
` Cite as: 574 U. S. ____ (2014)
`
`Statement of SCALIA, J.
`
`
`SUPREME COURT OF THE UNITED STATES
`DOUGLAS F. WHITMAN v. UNITED STATES
`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 JUSTICE SCALIA, with whom JUSTICE
`
`
`
`THOMAS 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 v.
`
`United States, 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 v. Atandi, 376 F. 3d 1186, 1189
`
`(CA10 2004); NLRB v. Oklahoma Fixture Co., 332 F. 3d
`1284, 1286–1287 (CA10 2003); In re Sealed Case, 223 F. 3d
`775, 779 (CADC 2000); United States v. Kanchanalak, 192
`F. 3d 1037, 1047, and n. 17 (CADC 1999); National Rifle
`
`
`
`
`
`
`
`

`
`2
`
`
`WHITMAN v. UNITED STATES
`
`Statement of SCALIA, J.
`
`
`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 v. 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 v. Welles-Bowen Realty, Inc., 736 F. 3d 722, 733
`
`
`(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 v. United States, 494 U. S. 152, 178 (1990)
`(SCALIA, J., concurring in judgment).
`
`
`The best that one can say for the Government’s position
`is that in Babbitt v. 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
`
`
`
`
`
`
`
`
`
`

`
`
`
` Cite as: 574 U. S. ____ (2014)
`
`Statement of SCALIA, J.
`
`
`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 v.
`Ashcroft, 543 U. S. 1, 11–12, n. 8 (2004); United States v.
`
`Thompson/Center Arms Co., 504 U. S. 505, 518, n. 10
`(1992) (plurality opinion); id., at 519 (SCALIA, J., concur-
`ring in judgment). The footnote in Babbitt 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 v. 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.
`
`
`
`
`
`3