Washington, D.C. — Today, the New Civil Liberties Alliance filed an amicus brief in support of the petitioners’ Writ of Certiorari to the U.S. Supreme Court in Damien Guedes, et al. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, et al. The case challenges the U.S. Court of Appeals for the D.C. Circuit’s new and unusually broad version of Chevron deference. In the case below, the D.C. Circuit deferred to ATF’s interpretation of the statute at issue, even though the agency sought to waive deference. The lower court also refused to apply the rule of lenity to the criminal statute at issue, choosing instead to treat Chevron deference as superseding it. The (constitutionally required) rule of lenity typically instructs courts to interpret ambiguous criminal statutes in favor of the accused. Both aspects of the decision below deepened a split with other circuit courts on these key issues.

NCLA’s amicus brief seconds the call for a review of the D.C. Circuit’s decision, because that ruling created an aggressive new version of Chevron deference, i.e., the deference that the Supreme Court has instructed federal courts to give federal agencies when interpreting statutes under those agencies’ auspices. Regardless of one’s position on standard-issue Chevron deference—and NCLA continues to believe deference is unconstitutional—the D.C. Circuit’s new brand of it defies even the typical justifications for Chevron deference, like agency expertise or accountability.

The three questions presented to the Court are: 1) Whether Chevron deference, rather than the rule of lenity, takes precedence in the interpretation of statutory language defining an element of various crimes where such language also has administrative applications? 2) Whether, if Chevron deference applies and takes priority over the rule of lenity, such deference can be waived in the course of litigation and on appeal? and 3) Whether, if Chevron deference applies and cannot be waived, Chevron should be overruled?

NCLA asked the Court to grant at least the first two of these questions. Assuming the Court overturns the D.C. Circuit’s aggressive version of Chevron deference, it will not be necessary to address the third question presented.

NCLA released the following statements:

An agency must be able to reject unlawful interpretive deference. The D.C. Circuit’s insistence otherwise needs to be corrected by the Supreme Court.” – Caleb Kruckenberg, NCLA Litigation Counsel

“Chevron deference is already bad enough in the first place. Creating a version of it that is unwaivable by agencies and that abandons lenity for criminal defendants is downright scary—and unconstitutional.”
– Mark Chenoweth, NCLA Executive Director and General Counsel


NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.