Neil Gorsuch's 'Law's Irony' Makes High Court Appearance

Supreme Court nominee Judge Neil Gorsuch, left, walks down the hallway inside the Russell Senate Office Building to meet with Senator Jeff Flake (R-AZ) on Wednesday, February 8, 2017. (Photo: Diego M. Radzinschi/ALM)

U.S. Supreme Court nominee Neil Gorsuch’s thinking on deference to federal agencies and the ever-increasing number of federal criminal statutes could make an appearance next week in the U.S. Supreme Court.

Gorsuch, who sits on the U.S. Court of Appeals for the Tenth Circuit, is cited in an amicus brief by the National Association of Criminal Defense Lawyers in a case that addresses the meaning of “sexual abuse of a minor.” Oral arguments in Esquivel-Quintana v. Sessions are scheduled for Feb. 27.

The case concerns a defendant named Juan Esquivel-Quintana, a 21-year-old legal permanent resident who had consensual sex with a 17-year-old. His conviction under a section of California law did not constitute sexual abuse of a minor in the Ninth Circuit. After he moved to Michigan to be closer to his family, the government began removal proceedings on the ground that his California conviction constituted sexual abuse of a minor, a felony that triggers mandatory removal under federal immigration law.

The Sixth Circuit, which oversees Michigan, deepened a circuit split when it ruled Esquivel-Quintana’s conviction ranked as an “aggravated felony,” according to the NACDL. The appeals court upheld an immigration judge’s determination that Esquivel-Quintana’s conviction under California law constituted “sexual abuse of a minor.”

One of the questions for the justices, and the one that most concerns the NACDL, is whether a court—examining an ambiguous federal statute that has civil and criminal applications—should apply the “rule of lenity,” which favors a defendant, or instead defer to how an agency interprets the law.

The Sixth Circuit, divided, afforded so-called “Chevron deference” to how the federal Board of Immigration Appeals interpreted “sexual abuse of a minor.” Writing in dissent, Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit said: “Chevron has no role to play in construing criminal statutes.”

The NACDL, which filed its brief on Aug. 10, months before Gorsuch was nominated, turned to Gorsuch to bolster the group’s argument that judicial deference to an agency’s interpretations of “hybrid” civil-criminal statutes is wrong and should be viewed in light of recent developments in criminal law.

Gorsuch, as a judge, has expressed concern about how much deference the courts should give to how agencies interpret ambiguity in civil statutes. In a ruling in August in the immigration case Gutierrez-Brizuela v. Lynch, Gorsuch decried that deference, saying that it allowed agencies “to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”

In their amicus brief, the criminal defense lawyers group pointed to a development in criminal law that should counter any rush to defer to federal agencies: unclear and diminishing requirements for proving a defendant acted with intent. That development, the NACDL argued, has created uncertainty and unpredictability over exactly what acts are criminal. Layering Chevron deference on top of that, they argued, would exacerbate that trend and raise “serious equal protection problems.”

Turning to Gorsuch’s “Law’s Irony,” remarks he delivered in Washington in 2014, the NACDL quoted the judge: “[W]hen the criminal code comes to cover so many facets of daily life … prosecutors can almost choose their targets with impunity.”

That problem, the criminal defense advocates said, is compounded by Chevron deference. “Individuals disfavored by the government for one reason or another could well become the target of prosecutions based on ambiguous statutes,” they wrote in their friend of the court brief.

Benjamin Horwich of Munger, Tolles & Olson was counsel of record on the NACDL brief. A former Gorsuch clerk, David Feder, was on the brief.

Feder, who contributes to the blog Yale Journal on Regulation, recently described the Esquivel-Quintana case as “potentially the dark horse” of the term.

“Judge Gorsuch’s recent concurrence in Gutierrez-Brizuela v. Lynch questioned the soundness of the Chevron doctrine itself—and in doing so kicked the hornet’s nest of administrative law scholars,” Feder wrote. “Yet Esquivel-Quintana threatens to take a big bite out of Chevron—and has gone almost entirely under the radar.”

If the justices reject Chevron deference, the “big bite” comes because there are so many hybrid civil-criminal statutes.

“Though there does not yet appear to be a definitive empirical study, anecdotal evidence suggests that there are a good number of these sorts of statutes—and they’re very familiar ones,” Feder wrote. “Leading examples include the Clean Water Act, the Racketeer Influenced and Corrupt Organizations Act, the Truth in Lending Act and the Securities Exchange Act of 1934.”

Gorsuch’s “Law’s Irony” hasn’t made many—if any—other appearance in the Supreme Court. The Texas Supreme Court this month cited Gorsuch’s speech in a ruling about the state’s public-information law. The Texas court’s majority, pointing to Gorsuch, said it was not “overstepping the bounds of our authority merely because our colleagues disagree with our analysis or conclusions.”

Gorsuch said disagreements about the law are not the “products of personal will or politics” but instead reflect the “honest efforts by all involved to make sense of the legal materials at hand.”

Gorsuch’s confirmation hearing is set for March 20.