Controversial Chevron Doctrine May Revive Federal Executions

The U.S. Supreme Court has temporarily upheld stays by district court judge Tanya S. Chutkan of the federal execution of several convicted murders based upon her interpretation of the Federal Death Penalty Act of 1994 [FDPA, 18 U.S. Code Sec. 3596(a)] which requires executions to be carried out “in the MANNER prescribed by the law of the state in which the sentence is imposed,” but her interpretation could be rejected under the controversial Chevron doctrine, suggests public interest law professor John Banzhaf.  [emphasis added]

Private Prisons Chevron Doctrine

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As Justices Alito, Gorsuch, and Kavanaugh wrote in criticizing Judge Chutkan decision, “this [statute] means, the Government contends, that the MODE of execution (i.e., by lethal injection, electrocution, etc.) must be the same as that called for under the law of the State in question, but the District Court held instead that a federal execution must follow all the procedures [the ‘manner’] that would be used in an execution in that State- down to the selection of the way a catheter is inserted.” [emphasis added]

In short, Judge Chutkan rejected the interpretation of the FDPA adopted by the agency charged with its implementation, and instead substituted her own understanding, based upon traditional techniques of judicial interpretation of statutory terms.  Thus federal executions, at least for now, will not continue after a 16-year hiatus.

But, notes Banzhaf, under the Chevron doctrine, judges cannot substitute their own views as to the meaning of a statute for those of the agency.  Instead, the doctrine provides that, if Congress has spoken clearly on the precise issue of the meaning of the statutory term, the court will announce its understanding of Congress’ meaning of the term, and apply it in issuing its own decision.

Chevron Doctrine explained

However, if Congress hasn’t spoken clearly on the precise meaning of a statutory term, Chevron deference requires that a court must accept the agency’s own interpretation, provided that it is not unreasonable; in other words, judges must by law defer to an agency’s interpretation of its own statute provided that it is not arbitrary or capricious, or obviously contrary to the statute.

Here, both the language of the FDPA, and the fact that the judge had to use tools of judicial interpretation, suggests that Congress has not spoken clearly with regard to the precise question of the meaning of the word “manner.”

Therefore, if the Supreme Court applies Chevron deference in this case, it would have to accept the government’s interpretation of the word “manner,” and permit the long-delayed executions to move forward, unless it found the agency’s own interpretation to be arbitrary and capricious.

It is by no means certain that the Supreme Court will apply Chevron in this case because several justices have expressed a desire to abandon the doctrine – which greatly restricted the power of judges to interpret statutes, and instead transferred that power to agencies – or to at least substantially limit its applicability.

Ironically, the same justices who were critical of the Chevron doctrine may also be those likely to support the death penalty, or at least the ability of the federal government to carry out executions of those murderers sentenced to the death penalty, says Banzhaf, who teaches Administrative Law, and the Supreme Court’s uneven application of Chevron since it was first announced.



About the Author

JOHN F. BANZHAF
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW, Wash, DC 20052, USA (202) 994-7229 // (703) 527-8418 http://banzhaf.net/ jbanzhaf@law.gwu.edu