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Tuesday, May 30, 2017

SCOTUS OT Symposium: Anticipating Which Canon Will Fire First in Esquivel-Quintana

Responding to Howard's call to identify our most anticipated cases from SCOTUS, I cannot decide between Esquivel-Quintana v. Sessions and Trinity Lutheran Church v. Comers. Since Esquivel-Quintana involves arcana of statutory interpretation, my excitement over the former case needs just a bit of explanation.

Every Spring when I teach Legislation & the Regulatory State (a mandatory 1L course here at NYU), I tell my students that there really are only two things to remember about the so-called "Lenity canon." First, the canon almost never does any useful work in resolving statutory meaning, because the courts use it only as a last resort when every other canon and interpretative technique has been tried and has failed. Second, if the canon has any function at all, it is to place a limit on Chevron deference by signaling that executives get no deference in construing criminal statutes.

Judging from oral argument, Esquivel-Quintana might very well reject or at least narrow that second proposition, making lenity even more insignificant than it already is. [UPDATE: Well, I did not have to wait long: SCOTUS handed down its opinion this morning, and -- surprise! -- neither canon won: It turns out that the statute is "unambiguous"!].

Esquivel-Quintana had been convicted of statutory rape for having sex with his sixteen-year-old girlfriend when he was 21 years old, thereby violating a California statute prohibiting any such equal intercourse between anyone and "a minor who is more than three years younger than the perpetrator." The question in Esquivel-Quintana is whether such a conviction counts as "sexual abuse of a minor" under 8 U.S.C. §1227(a)(2)(A)(iii), a federal offense that results in automatic deportation of an alien perpetrator.

Chevron comes into the case because the Board of Immigration Appeals ruled that any conviction for statutory rape automatically constituted "sexual abuse of a minor" if the underlying statute required a "meaningful difference" between the ages of victim and perpetrator. Three years, apparently, was meaningful enough. Against this view, Esquivel-Quintana argued that "minor" under section 1227(a) should be construed in pari materia with 18 U.S.C. § 2243(a), titled “sexual abuse of a minor or ward,” which makes it a federal crime to have sex with a person who is less than sixteen years old.

There is, in short, sufficient ambiguity in the text to justify application of some sort of tie-breaking canon. The question is: which canon fires first? Lenity or Chevron?

I will leave it to whoever wants to comment to explore arguments for one or the other canon. My only suggestion is that, if one wants to induce Congress to write a plainer law, then lenity is the way to go. A certain political prudery induces Congress to use hazy language when defining sex crimes. Letting a few defendants escape the scope of the law is a good way to mobilize prosecutors to prod Congress into clarifying the language, if there is any political will at all for clarity. As a statutory penalty default (in Einer Elhauge's sense), therefore, lenity was a lot of merit.

Posted by Rick Hills on May 30, 2017 at 11:25 AM in 2018 End of Term | Permalink


Chevron undoubtedly should trump lenity. You can think of Chevron and lenity as ambiguity-resolving canons, but I don't think that's quite right; Chevron is an ambiguity-dissolving canon or an ambiguity-delegating canon. The claim that Chevron makes is that when you see an ambiguity, Congress wished (or "wished") to have the agency reasonably decide what, within the realm of permissible possibilities, the statute should mean. Lenity says that if Congress hasn't clearly criminalized x or made x deportable, then it hasn't criminalized x or made x deportable, for notice reasons. Given Chevron, though, when one encounters an ambiguity in a deportation statute, Congress hasn't actually been unclear on the matter; it's clearly said, or said as a matter of law, that the agency has delegated authority to decide what the ambiguity covers. The fact that the delegation is triggered by ambiguity on the underlying question is something of a red herring. So I really can't understand the theory on which lenity interposes itself between ambiguity and delegation. Put another way, Chevron is a claim about congressional intent or statutory meaning, while lenity is a rule about what courts do in the absence of clear intent or statutory meaning. If we know that Congress intended the agency to resolve the meaning of this almost laughably vague term, or that the statute means that it shall, there's no place for a rule about what we do when Congress hasn't been clear; Congress has clearly left the matter to the agency for further precisification. Of course, this argument may appear to beg the question, but I don't actually think it does.

Posted by: Asher Steinberg | May 30, 2017 1:07:04 PM

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