Amicus Curiae Brief — Damien Guedes, et al., Petitioners v. Bureau of Alcohol, Tobacco, Firearms and Explosives, et al.

Supreme Court briefOct 3, 2019

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No. 19-296

In the

Supreme Court of the United States

DAMIEN GUEDES; ET AL.,

Petitioners,

BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND

EXPLOSIVES; ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF AMICUS CURIAE CENTER

FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONERS

JOHN C. EASTMAN

Counsel of Record

ANTHONY T. CASO

Center for Constitutional

Jurisprudence

c/o Fowler School of Law

Chapman University

One University Drive

Orange, CA 92866

(877) 855-3330

jeastman@chapman.edu

Counsel for Amicus Curiae

QUESTION PRESENTED

Petitioners herein seek a determination that a rule

redefining legal bump-stock-type devices as illegal

“machineguns” is invalid where the lower courts have

reached the conclusion by granting Chevron deference

to the interpretation of a criminal statute in the face

of ambiguity. In December 2018, the Bureau of Alcohol, Tobacco, Firearms, and Explosives expanded its

interpretation of the statutory term “machinegun” to

include guns with a bump-stock-type device attached.

Petitioners immediately sought a preliminary injuction.

By a divided vote, the District of Columbia Circuit

affirmed, deferring to the Bureau of Alcohol, Tobacco,

Firearms, and Explosives, determining that guns with

bump-stock-type devices can be classified as

“machinceguns” under a reasonable interpretation of

the statutory term.

The question presented is:

1. Whether Chevron deference is constitutionally permissible in the context of criminal

law?

TABLE OF CONTENTS

QUESTION PRESENTED ............................................ i

TABLE OF AUTHORITIES ........................................ iii

INTEREST OF AMICUS CURIAE ..............................1

SUMMARY OF ARGUMENT.......................................1

Basic Principles of Due Process and

Separation of Powers Require That

Federal Criminal Law Be Drafted With

Clarity, By Congress ...................................... 2

II. The Rule Of Lenity Resolves Ambiguity

In Favor Of The Defendant ........................... 3

III. Particularly In The Context of Criminal

Law, Chevron Deference Violates

Separation of Powers. .................................... 5

IV. Certiorari Is Warranted To Correct The

Violation of These Core Due Process and

Separation of Powers Principles. .................. 9

CONCLUSION ............................................................ 10

iii

TABLE OF AUTHORITIES

Cases

Abramski v. United States,

573 U.S. 169 (2014) ....................................................9

Albernaz v. United States,

450 U.S. 333 (1981) ....................................................4

Babbitt v. Sweet Home Chapter, Communities for

Great Ore.,

515 U.S. 687 (1995) ..................................................10

Bifulco v. United States,

447 U.S. 381 (1980) ....................................................3

Callanan v. United States,

364 U.S. 587 (1961) ....................................................4

Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc.,

467 U.S. 837 (1984) ..........................................passim

Crandon v. United States,

494 U.S. 152 (1990) ....................................................9

Department of Transportation v. Association of

American Railroads,

135 S.Ct. 1225 (2015) .................................................1

Gundy v. United States,

139 S.Ct. 2116 (2019) .................................................1

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) .................................9

Kisor v. Wilkes,

139 S.Ct. 2400 (2019) .............................................1, 6

Leocal v. Ashcroft,

543 U.S. 1 (2004) ........................................................3

Loving v. United States,

517 U.S. 748 (1996) ....................................................7

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .....................................6

Merrill v. Yeomans,

94 U.S. 568 (1876) ......................................................8

Michigan v. EPA,

135 S.Ct. 2699 (2015) .................................................6

Moskal v. United States,

498 U.S. 103 (1990) ....................................................4

Perez v. Mortgage Bankers Ass’n,

135 S.Ct. 1199 (2015) .............................................1, 6

TransAm Trucking, Inc. v. Admin. Review Bd.,

United States Dep’t of Labor,

833 F.3d 1206 (10th Cir. 2016) .................................6

United States v. Apel,

571 U.S. 359 (2014) ....................................................9

United States v. Bass,

404 U.S. 336 (1971) ................................................7, 8

United States v. Davis,

139 S.Ct. 2319 (2019) .......................................passim

United States v. Santos,

553 U.S. 507 (2008) ....................................................5

United States v. Thompson/Center Arms Co.,

504 U.S. 505 (1992) ....................................................3

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) .....................................3

Whitman v. United States,

135 S.Ct. 352 (2014) .................................... 3, 8, 9, 10

Statutes

42 U.S.C. § 7413(c)(1) ....................................................7

42 U.S.C. § 7502(a)(1) ....................................................7

42 U.S.C. § 7502(b)(6) ....................................................7

Other Authorities

Barnett & Walker, Chevron in the Circuit Courts,

116 MICH. L. REV. 1 (2017) ........................................6

Friendly, Henry J., Mr. Justice Frankfurter and the

Reading of Statutes, in Benchmarks 196, 209

(1967) ...........................................................................4

Hamburger, Philip, Chevron Bias, 84 GEO. WASH.

L.R. 1187 (2016)..........................................................8

Madison, James, Federalist 48, THE FEDERALIST

PAPERS 305 (Charles R. Kesler & Clint Rossiter,

eds., 2003)....................................................................8

Rules

Rule 37.2(a), ....................................................................1

Rule 37.6..........................................................................1

Constitutional Provisions

U.S. Const. art. I, § 1 .....................................................2

INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute,

whose stated mission is to restore the principles of the

American founding to their rightful and preeminent

authority in our national life, including the principle

that the authority to “declare what the law is” is

vested in the judicial branch of government and the

law making power is vested in the legislative branch.

The Center has previously appeared before this Court

as amicus curiae in several cases addressing these issues, including Kisor v. Wilkes, 139 S.Ct. 2400 (2019);

Gundy v. United States, 139 S.Ct. 2116 (2019); Perez

v. Mortgage Bankers Ass’n, 135 S.Ct. 1199 (2015); Department of Transportation v. Association of American

Railroads, 135 S.Ct. 1225 (2015).

SUMMARY OF ARGUMENT

Criminal law is distinct. Because personal liberties

and freedoms are at stake, the line between criminal

and non-criminal behavior must always be drawn

clearly such that the reasonable person is on notice as

to where his or her actions fall with respect to that

line. Moreover, the Framers by design placed the

power to construct criminal statutes with the legislative branch comprised of the people’s representatives.

The judicial and executive branches do not wield that

1 Pursuant to Rule 37.2(a), all parties were notified of and have

consented to the filing of this brief. In accordance with Rule 37.6,

counsel affirms that no counsel for any party authored this brief

in whole or in part and that no person or entity other than amicus made made a monetary contribution to fund the preparation

and submission of this brief.

power, nor should they attempt to infringe on the

right of the legislature to do so. The requisite supporting pillars of criminal law are therefore due process

and separation of powers.

The Court should grant review to clarify that true

ambiguity in criminal statutes must be cured by the

lawmaking power itself, not by the Courts and not by

executive or independent agencies.

REASONS FOR GRANTING THE WRIT

I. Basic Principles of Due Process and Separation of Powers Require That Federal Criminal Law Be Drafted With Clarity, By Congress

Our country’s approach to criminal law is based on

“twin constitutional pillars of due process and separation of powers,” such that the mere possibility that a

man’s conduct has violated the law will never be

enough to “justify taking his liberty.” United States v.

Davis, 139 S.Ct. 2319, 2335 (2019). Due Process requires that the criminal law be framed with sufficient

clarity that reasonable people are put on notice of its

commands, because “[i]n our constitutional order, a

vague law is no law at all.” Id. at 2323. But separation of powers requires that the necessary clarity be

provided the legislative authority itself, in accord with

the very first command of the Constitution that the

“legislative powers herein granted are vested in a

Congress of the United States.” U.S. Const. art. I, § 1.

When dealing with statutory ambiguity, the longstanding Rule of Lenity is consistent with these principles; deference under Chevron to enforcement agencies is not.

II. The Rule Of Lenity Resolves Ambiguity In

Favor Of The Defendant

The Rule of Lenity requires that “ambiguities

about the breadth of a criminal statute should be resolved in the defendant’s favor.” Davis, 139 S.Ct. at

2333. This is true even if the statute has both criminal and non-criminal applications. Leocal v. Ashcroft,

543 U.S. 1, 11 n.8 (2004); see also Whitman v. United

States, 135 S.Ct. 352, 353–54 (2014) (Scalia &

Thomas, JJ., statement respecting denial of certiorari) (“[I]f a law has both criminal and civil applications, the rule of lenity governs its interpretation in

both settings.”); United States v. Thompson/Center

Arms Co., 504 U.S. 505, 517–16 (1992) (applying the

lenity to a tax statute in a civil setting because it carries criminal sanctions).

The Rule of Lenity has a rich history, predating the

Founding, and has been suggested to be “perhaps not

much less old than” statutory construction itself.

United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95

(1820) (Marshall, C.J.). The “touchstone” of the rule

is statutory ambiguity (though such ambiguity must

be genuine, not contrived). Bifulco v. United States,

447 U.S. 381, 387 (1980). This is because the lenity

doctrine is based on the law’s “tenderness” for individual rights given by fair notice. Davis, 139 S.Ct. at

2333. That is, special care is taken in criminal law to

ensure that criminal behavior is well-defined. Where

such definition lacks clarity, the tie goes to the defendant because he must know where the line has been

drawn between criminal and non-criminal behavior

before he is to be held accountable for stepping over

that line. As Judge Henry Friendly once noted, we

have an “instinctive distaste against men languishing

in prison unless the lawmaker has clearly said they

should.” Henry J. Friendly, Mr. Justice Frankfurter

and the Reading of Statutes, in Benchmarks 196, 209

(1967).

To be sure, the ambiguity must be genuine. This

Court has cautioned that a statute is not ambiguous

“merely because it was possible to articulate a construction more narrow,” or because there exists a “division of judicial authority.” Moskal v. United States,

498 U.S. 103, 108 (1990) (emphasis in original). See

Albernaz v. United States, 450 U.S. 333, 342 (1981)

(“Lenity thus serves only as an aid for resolving ambiguity; it is not to be used to beget one.”). Rather, “reasonable doubt” must persist “even after resort to ‘the

language and structure, legislative history, and motivating policies’.” Moskal, 498 U.S. at 108 (emphasis in

original). See also Callanan v. United States, 364 U.S.

587, 596 (1961) (“The rule [of lenity] comes into operation at the end of the process of construing what Congress has expressed.”).

But when a law is determined to be truly ambiguous, such as the court below determined here,

Pet.App. A52, it is the legislative branch that must

cure the ambiguity, for it is the legislative branch that

has “the power of punishment.” Davis, 139 S.Ct. at

2333. In Davis, this Court held that the courts are not

“in the business” of writing new laws or correcting existing criminal statutes. Id. at 2336. Because of this

judicial limitation, when a genuine ambiguity arises,

the courts must treats the law “as a nullity and invite

Congress to try again.” Id. at 2323 (emphasis added.

Even if “statutory ambiguity ‘effectively’ licenses [the

courts] to write a brand-new law, [the courts] cannot

accept that power in a criminal case, where the law

must be written by Congress.” United States v. Santos, 553 U.S. 507, 523 (2008). In other words, it is not

the judiciary’s role to take any additional steps to “fix”

a statute which has failed under the rule of lenity.

What is true for the judiciary is (or should be) at

least equally true for the executive, for the latter has

no more lawmaking power under our Constitution

than the former, and it does not even have the interpretive power assigned to the Judiciary under Article

III.

III. Particularly In The Context of Criminal

Law, Chevron Deference Violates Separation of Powers.

As is well known, in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984) , this Court set out a two-step process for judicial review of statutory construction by a federal agencies charged with the statute’s enforcement. In Step

One, a court determines if “Congress has spoken directly to the precise question at issue.” Id. at 842. If

Congress has been clear, “that is the end of the matter.” Id.

Of course, determining whether a statute has the

requisite clarity requires “employing traditional tools

of statutory construction.” Chevron, 467 U.S. at 84243, 843 n.9). In the Kisor case last term, this Court

saw fit to narrow the scope of Auer deference (agency

deference given when ambiguity exists in the meaning

of agency regulations) by instructing that courts

“must carefully consider the text, structure, history,

and purpose” of an agency’s regulations since “[d]oing

so will resolve many seeming ambiguities out of the

box.” Kisor v. Wilkie, 139 S.Ct. 2400, 2415 (2019). The

Court’s call for an “all tools exhausted” standard is

equally necessary in the context of statutory construction at issue in Chevron Step One, not only because

lower courts have been inconsistent in rigorous application of a uniform standard, but also because the

original wording of the Chevron decision itself calls for

such an exacting standard. See, e.g., TransAm Trucking, Inc. v. Admin. Review Bd., United States Dep’t of

Labor, 833 F.3d 1206, 1211 (10th Cir. 2016) (Gorsuch,

J., dissenting) (then-Judge Gorsuch noting that simple use of a dictionary can resolve ambiguity); Barnett

& Walker, Chevron in the Circuit Courts, 116 MICH.

L. REV. 1 (2017) (summarizing case opinions at the

court of appeals level from 2003-2013 and finding “circuit-by-circuit disparity in . . . invocation of Chevron”);

Chevron, 467 U.S. at 843 n.9.

Only if a statute is determined to be truly ambiguous, after “employing traditional tools of statutory

construction,” id., is Chevron Step Two triggered, in

which deference is given to an agency’s reasonable interpretation. That deference has recently been called

into question by several members of this Court, both

on non-delegation grounds (as contravening Article I’s

assignment of lawmaking powers to Congress) and judicial review grounds (as contravening Article III’s assignment of the interpretive power to the courts to

“say what the law is,” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 177 (1803)). See, e.g., Michigan v. EPA,

135 S.Ct. 2699, 2712-14 (2015) (Thomas, J., concurring); Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199,

1211-13 (2015) (Scalia, J., concurring); see also Loving

v. United States, 517 U.S. 748, 758 (1996) (“The fundamental precept of the delegation doctrine is that the

lawmaking function belongs to Congress … and may

not be conveyed to another branch”).

Moreover, Chevron itself was a civil case, not a

criminal one.2 In the latter context, which is presented here, the concerns about Chevron deference are

even more pronounced. Criminal penalties and punishments are weighty, representing the “moral condemnation of the community,” and therefore the decision whether and when to impose such penalties has

been assigned to the legislative branch. United States

v. Bass, 404 U.S. 336, 348 (1971); Davis, 139 S.Ct. at

2333. As this Court held just last term, the courts

must respect this assignment of power to the legislature and not undertake to rewrite laws “in order to

save Congress the trouble.” Davis, 139 S. Ct. at 2333.

But neither should the courts sanction a delegation of

that lawmaking power to the executive. Id. at 2323.

The Constitution vests specific types of government power in each branch of government; power

vested in one branch cannot be exercised by another.

James Madison, Federalist 48, THE FEDERALIST PAPERS 305 (Charles R. Kesler & Clint Rossiter, eds.,

2 Chevron addressed the interpretation of the term “stationary

source” in the Clean Air Act. 467 U.S. at 840 (citing 42 U.S.C. §

7502(a)(1), (b)(6) (1982)). The court below noted that another

provision of the Clean Air Act, 42 U.S.C. § 7413(c)(1), imposed

criminal penalties, Pet.App. A41-A42, but acknowledged that

this Court in Chevron “did not specifically address whether the

criminal context should have afforded a basis for denying deference to the agency’s interpretation,” Pet.App. A42-A43.

2003). This system makes the exercise of government

more difficult — but it does so by design. Dept. of

Trans. v. Ass’n of Am. Railroads, 135 S.Ct. 1225

(2015) (Alito, J., concurring). But just as one branch

may not usurp the power of the others, neither can

any of the branches delegate away their vested powers. Id. See also Philip Hamburger, Chevron Bias, 84

GEO. WASH. L.R. 1187, 1193 (2016) (quoting commentaries by Justices Breyer and Scalia).

It is for Congress to make the laws. And, especially

in criminal law, “it is appropriate . . . to require that

Congress should have spoken in language that is clear

and definite.” Bass, 404 U.S. at 347 (emphasis added).

Again, “a vague law is no law at all”; it is not an excuse

for judicial deference to the executive. Davis, 139

S.Ct. at 2323. Prosecutorial deference under Chevron

permits the executive to exercise lawmaking power.

This should not be. “Only the people’s elected representatives in Congress have the power to write . . .

statutes that give ordinary people fair warning about

what the law demands of them.” Davis, 139 S.Ct. at

2323. In law, there is “no excuse for ambiguous language or vague descriptions,” and a finding of vagueness or ambiguity is no excuse for the executive to assume the lawmaking power of the legislative, no matter how slight the usurpation. Merrill v. Yeomans, 94

U.S. 568, 573 (1876).

As Justices Scalia and Thomas noted in their separate opinion respecting denial of certiorari in Whitman, “a court owes no deference to the prosecution’s

interpretation of a criminal law.” Whitman, 135 S.Ct.

at 352. This Court specified five years ago that it has

“never held that the Government’s reading of a criminal statute is entitled to any deference.” United States

v. Apel, 571 U.S. 359, 369 (2014). That same term,

this Court noted that “criminal laws are for courts, not

for the Government, to construe.” Abramski v. United

States, 573 U.S. 169, 191 (2014). A few years later,

then-Judge Gorsuch, in his concurrence in GutierrezBrizuela v. Lynch, stated “The Supreme Court has expressly instructed us not to apply Chevron deference

when an agency seeks to interpret a criminal statute.”

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1155

(10th Cir. 2016) (emphasis in original). Although the

Justice Department has the “specific responsibility” to

determine what a statute means, that determination

is merely an exercise in understanding when the executive believes prosecution is warranted. Crandon v.

United States, 494 U.S. 152, 177 (1990) (Scalia, J.,

concurring). As Justice Scalia noted, this Court has

“never thought that the interpretation of those

charged with prosecuting criminal statutes is entitled

to deference.” Id. That is, federal administrators

should not be allowed to “create (and uncreate) new

crimes at will” in contravention of properly separated

powers. Whitman, 135 S.Ct. at 353.

IV. Certiorari Is Warranted To Correct The Violation of These Core Due Process and Separation of Powers Principles.

After determining that the statutory phrase, “machine gun,” was ambiguous as to whether it included

guns equipped with a “bump stock,” the court below

deferred to the recent regulation of the Bureau of Alcohol, Tobacco, Firearms, and Explosives extending

the statutory ban on fully automatic machine guns to

semi-automatic weapons equipped with bump stocks.

It did so based on Babbitt v. Sweet Home Chapter,

Communities for Great Ore., 515 U.S. 687, 704 n.18

(1995), in which this Court deferred to an agency’s interpretation on a statute with criminal implications

and rejected a Rule of Lenity argument in a footnote.

And it did so over the Government’s own contention

that if the court deemed the statutory language to be

ambiguous, its bump stock rule should “be set aside

rather than upheld under Chevron” Step Two deference, because Chevron deference is not appropriate in

the criminal context. Pet.App. A36, A41.

In their separate statement respecting denial of

certiorari in Whitman, Justices Thomas and Scalia

correctly noted that the Babbitt footnote “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.”

Whitman, 135 S.Ct. at 353. They further commented

that although Whitman did not seek review on Babbitt-based deference, they would be receptive to granting a petition when the matter was properly brought

before the Court. Id. at 354. This is that case, and

this Court should grant the petition to address the important question of whether Chevron deference is appropriate in a criminal matter.

CONCLUSION

Criminal law and its power to constrain the liberties and freedoms of individuals is too important to

approach in a casual manner. It is founded on the

well-established pillars of due process and separation

of powers and serious attention is warranted whenever a threat to undermine these pillars arises. The

application of Chevron deference to ambiguity in criminal statutes is one such threat. The Court should

grant review in this case to clarify, reiterate, and emphasize that no deference is owed to the executive’s

interpretations of criminal statutes.

October 2019

Respectfully submitted,