An Unstable Equilibrium: Evaluating the “Third Way” Between Chevron Deference and The Rule of Lenity
During the 2016 term, the Supreme Court faced a consequence of the collision of two dominant historical trends: the expansion of the administrative state and the growth of federal criminal law. In Esquivel-Quintana v. Sessions, 1 the Court reviewed an agency interpretation of a federal statute that triggers both criminal and noncriminal penalties. Because of the unique character of the statute and the posture in which the dispute arose, both Chevron deference and the rule of lenity arguably applied—each dictating opposite outcomes.
This Note will evaluate Justice Kagan’s proposed “third way” between a strict application of Chevron deference on one hand and the rule of lenity on the other.2 It will argue that the “third way” is a workable short-term solution that would allow the Court to preserve, at least in part, important values undergirding both lenity and Chevron. The “third way” would also afford many advantages over the approach taken by the Court in Esquivel-Quintana. Yet, despite its short-term virtues, the “third way” represents no more than a highly unstable equilibrium. In the pages that follow, this Note shows how the “third way” can operate only under today’s specific prevailing understandings of Chevron and lenity. What is more, given the inextricable link between these two doctrines and fundamental debates about statutory interpretation and delegation, the “third way” provides no realistic long-term solution. The “third way” is vulnerable to destabilizing changes in doctrine, particularly in light of the fundamental nature of the underlying questions and the shifting ideological currents animating the Court.
