Three Judges, Four Opinions, and a Debate on Auer Deference

What more could you want from a sentencing guideline decision out of a U.S. Court of Appeals?

Yesterday, in United States v. Havis, a divided panel of the U.S. Court of Appeals for the Sixth Circuit rejected Jeffrey Havis' challenge to his criminal sentence. Havis objected to the District Court's conclusion that his base sentence for being a felon in possession of a firearm should be increased due to a twenty-year-old conviction for delivering cocaine. A majority of the panel, in an opinion by Judge Thapar, found his argumet precluded by controlling circuit precedent. His opinion for the court begins:

What we do is sometimes less important than how we do it. The United States Sentencing Commission has the power to promulgate the Sentencing Guidelines. But Congress has limited how it may exercise that power. Those limits are important—not only because Congress thinks so, but because they define the Commission's identity in our constitutional structure.

Jeffery Havis claims that the Commission has disregarded those limits. And he may have a point. But a prior published decision of our court requires that we reject this part of his argument. Following that precedent and finding Havis's other arguments unavailing, we affirm his sentence

Judge Stranch concurred. Judge Daughtrey dissented.

Each judge wrote a separate opinion, and it appears that all three have concerns that the relevant circuit precedent (United States v. Evans, 699 F.3d 858 (6th Cir. 2012)) may have been wrongly decided. The judges were not in agreement, however, on the propriety of deferring to the U.S. Sentencing Commission's interpretation of the sentencing guidelines under Auer v. Robbins and its close relative, Stinson v United States (which applies Auer/Seminole Rock deference to the guidelines).

Writing a separate concurrence, Judge Thapar offered a critique of Auer.

In this case, the government asks us to defer to Sentencing Commission commentary. And that commentary expands what is in the Sentencing Guidelines—completed controlled substance offenses—to include something not in the Guidelines—attempts of those offenses. . . . Under Auer, courts must defer to agencies' interpretations of their own rules—including the Commission's interpretation of the Guidelines. . . . But one does not "interpret" a text by adding to it. Interpreting a menu of "hot dogs, hamburgers, and bratwursts" to include pizza is nonsense. Nevertheless, that is effectively what the government argues here when it says that we must apply deference to a comment adding to rather than interpreting the Guidelines.

The government's argument shows how far Auer has come and will go if left unchecked by the courts. Under Auer, agencies possess immense power. Rather than simply enacting rules with the force of law, agencies get to decide what those rules mean, too. But just as a pitcher cannot call his own balls and strikes, an agency cannot trespass upon the court's province to "say what the law is." . . . Auer nevertheless invites agencies into that province, with courts standing by as agencies "say what the law is" for themselves. . . . Not only that, but Auer incentivizes agencies to regulate "broadly and vaguely" and later interpret those regulations self-servingly, all at the expense of the regulated. . . . Auer thus encourages agencies to change the rules of the game with the benefit of hindsight, "unhampered by notice-and-comment procedures."

Were this a civil case, these problems with Auer deference would merit close attention. But as this is a criminal case, and applying Auer would extend Havis's time in prison, alarm bells should be going off. . . . It is one thing to let the Commission, despite its "unusual" character, promulgate Guidelines that influence how long defendants remain in prison. . . . It is entirely another to let the Commission interpret the Guidelines on the fly and without notice and comment—one of the limits that the Supreme Court relied on in finding the Commission constitutional in the first place. . . .

Also, in criminal cases, ambiguity typically favors the defendant. If there is reasonable doubt, no conviction. . . . And if a statute is ambiguous, courts construe the statute in the criminal defendant's favor. . . . But not here. Auer would mean that rather than benefiting from any ambiguity in the Guidelines, Havis would face the possibility of more time in prison than he otherwise would. So in this context, Auer not only threatens the separation of powers but also endangers fundamental legal precepts as well. . . .

The fact that the Sentencing Commission includes thoughtful and respected lawyers, scholars, and judges does not change the court's obligation to exercise its independent judgment when determining what a law (or regulation) means. . . . The government cannot be faulted for arguing for deference. But judges should be faulted for accepting the government's argument. How is it fair in a court of justice for judges to defer to one of the litigants? In essence, the argument boils down to this—the government is populated by experts and when they speak we should tip the scales of justice in their favor. Such deference is found nowhere in the Constitution—the document to which judges take an oath. And allowing such deference would allow the same agency to make the rules and interpret the rules. As noted above, this is contrary to any notion the founders had of separation of powers. . . . Even Lord Edward Coke rejected such overtures from King James I. . . . Judges should similarly reject such overtures today.

And while it is true that Congress can provide checks on the agencies, this does not relieve the judiciary from also performing its role. Indeed, the founders envisioned a combined system of checks and balances. . . . But if the judiciary checks out, so to speak, then the system the founders envisioned crumbles.

Fortunately, even under current precedent, this court is not obligated to check out of its constitutional role: the Sentencing Commission's "interpretation" in this case is just an addition and receives no deference. But this case shows how far Auer and Stinson deference could go if left unchecked. Both precedents deserve renewed and much-needed scrutiny.

In a footnote, Judge Thapar references Philip Hamburger's argument that Chevron deference (and, by extension, Auer deference) induces judges to violate the Canons of judicial ethics. While I am quite sympathetic to many arguments against Auer deference, I find this particular argument against Auer and Chevron to be wholly unpersuasive. Insofar as an agency is making policy choices when resolving ambiguities or filling gaps, there is no "bias" problem of the sort Hamburger identifies, so long as the agency is exercising properly delegated power. The problem is Auer is that (unlike with Chevron) there is no such delegation.

Judge Daughtrey dissented, but did not engage the debate over Auer. Rather, she argued that the Sixth Circuit's Evans decision did not control the outcome of this case.

Judge Stranch joins Judge Thapar's opinion for the court, but writes separately to (among other things) express a different view of Auer.

I write separately to explain why Auer deference presents no constitutional problem. . . . As we note here, Mistretta made clear that the Sentencing Commission is not at odds with the principle of separation of powers because Congress may delegate complex matters to coordinate Branches as long as it "clearly delineates the general policy," the agency to apply it, and sets "the boundaries of this delegated authority." . . . We also reference Stinson v. United States, . . . which established that commentary promulgated by the Sentencing Commission is authoritative "unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." . . . Supreme Court authority thus established the boundaries of deference. . . .

It is true that the Government asked us to defer to Commission commentary instead, but its request is not evidence that Auer, Mistretta, and Stinson create some irreparable problem. We can hardly fault the Government for advancing an argument that seeks to enhance its position. That is the job of attorneys who represent parties in litigation. Instead of creating a constitutional problem, the Government's argument mobilized a constitutional principle that Auer deference anticipates: regardless of what interpretation the Government proposes, "it is the court that ultimately decides whether a given regulation means what the agency says." . . .

Nor does it appear to me that immense power has been granted to agencies pursuant to Auer. Agencies do not get to decide within a vacuum: they operate within a complex system of checks and balances. To begin with, agency power is derivative of the statutory grant that creates the entity and defines the scope of its power. Our deference doctrines are thus an application of the authority that the legislature chose to grant in particular circumstances. And while the scope of the granted authority may be broad, it operates within specified limits. An agency's rulemaking must comply with the statute, and the agency's interpretation must comply with the rule. It is the courts that ultimately determine whether the agency has acted within the scope of its statutory grant. . . .

Finally, I am perplexed by the argument that Auer has led agencies to regulate in a way that is broad and vague with, apparently, the goal of creating maximum leeway to define the meaning of a regulation somewhere down the road. That claim assumes a world of political continuity and agency longevity that we would be hard pressed to find today. It also ignores multiple incentives and constraints. Consider the internal pressures within the agency and throughout the governing executive branch to implement the agency's program and the external pressures from those regulated and their lobbyists to obtain predictability, both of which encourage clear regulations. These stakeholders are focused on bringing their own expertise to bear on highly complex, policy-driven issues that play out on a very practical level. This argument relies on one more dubious assumption—that agency action is driven by the views of the courts on Auer deference. It seems to me that the immediate pressures listed above are far more salient. Research supports this conclusion. One recent study showed that barely half of agency drafters responding to a survey even knew what Auer was, and even fewer considered it when drafting rules. Christopher J. Walker, Inside Agency Statutory Interpretation, 67 Stan. L. Rev. 999, 1062 (2015).

Since the 1930s, courts have recognized "that in our increasingly complex society, replete with ever changing and more technical problems," Congress must be able to delegate power "according to common sense and the inherent necessities of the government co-ordination." . . . The Supreme Court has long recognized the need for some level of judicial deference to the agencies that, guided by empirical research and experience, focus on mastery of a particular set of complex issues. . . . The current arguments for curtailing agency deference risk dismissing a system that Congress created out of a need to employ the significant expertise held by agencies and their stakeholders in complex areas of the law and instead substituting courts that are ill-equipped for the task. Our carefully developed doctrines of deference strike the proper balance among our three branches by respecting both the exercise of legislative authority and the judiciary's right to make the ultimate decision "whether a given regulation means what the agency says."

Returning to this case. Though we write separately, the judges on this panel agree that the Sentencing Commission exceeded its rulemaking power by seeking to add offenses to the Guidelines through commentary rather than through the procedures for amendment. And we agree that our prior published decision in Evans was incorrect on that issue. The dissent makes a fair argument that we may put aside Evans and take up the issue in the first instance. That is a close call, but I end up with the analysis in the lead opinion.

The lesson here is that the existing system works. This case provides no reason to question the wisdom of our longstanding deference to agencies' interpretations of their own rules. . . .

It seems to me that some of Judge Stranch's arguments are well taken, insofar as they apply to Chevron. It is fair to argue that Chevron deference is, at its core (and if properly limited), "an application of the authority that the legislature chose to grant in particular circumstances." As the Supreme Court has made clear in Mead and other decisions, Chevron deference is premised upon the legisature's delegation of authority to an agency to implement a given statutory regime. However much this argument works for Chevron, however, it does not work for Auer and Seminole Rock. It may be so that when Congress leaves a gap or ambiguity within a statutory regime, it has delegated authority to the implementing agency to work such things out. Yet when it is the agency itself that has left the gap or ambiguity, no such argument can be made. This is but one reason why the arguments for Chevron do not extend to Auer, a point I have made in recent symposium essays discussing Chevron and Auer.