Notice & Comment

A Sleeper Auer Case

Auer deference — the deference an agency receives when interpreting its own regulations — is one of the most powerful tools for the government in administrative law. But the doctrine has faced increasing criticism. Opponents have argued that the doctrine enables agencies to circumvent procedural safeguards by promulgating vague rules through notice and comment and then later issuing interpretations of those rules. Three justices—Alito, Thomas, and the Chief—have expressed interest in overturning it, and Justice Scalia did as well.

Despite the criticism, the Court recently indicated that it was not prepared to take up the issue when it denied certiorari in United Student Aid Funds, Inc. v. Bible. But there is another case this term in which the Court has granted review that could raise challenges to AuerBeckles v. United States, No. 15-8544. The case involves a challenge to the federal sentencing guidelines, so it might not be on the radar of many who practice administrative law.

Beckles was convicted of possessing a sawed-off shotgun after having been convicted of two serious drug felonies. Section 4B1.1 of the U.S. Sentencing Guidelines prescribes a sentencing enhancement for a criminal defendant if the offense of conviction is a “crime of violence” and if the defendant has two prior convictions for a serious drug offense. Beckles obviously met the two-prior-drug-conviction requirement, but it is less clear whether his illegal possession of a sawed-off shotgun constituted a crime of violence.

At the time of Beckles’s conviction, the guideline did not define “crime of violence” to include illegally possessing a sawed-off shotgun. It listed a number of other offenses that constituted a crime of violence, and it had a residual clause defining a crime of violence to include crimes that present “a serious potential risk of physical injury to another.” But the guideline commentary stated that “crime of violence” includes unlawfully possessing a sawed-off shotgun, presumably by interpreting the residual clause.

The Court held in 1993 that guidelines commentary is given Auer deference; so long as the commentary is consistent with the guidelines, that commentary is binding. But one of the questions before the Court in Beckles is whether the commentary provides an adequate basis for treating illegal possession of a sawed-off shotgun as a crime of violence—in other words, whether the commentary should receive Auer deference.

The deference issue is only a side point in Beckles. The main issues are whether the residual clause is unconstitutionally vague and, if so, whether that holding should apply retroactively. But there are reasons to think that Beckles provides an opportunity to chip away at Auer.

To start, the guideline at issue in Beckles presents the situation about which critics of Auer complain. The Commission issued a vague guideline through notice and comment and then set its meaning through an interpretation not subject to those procedures. (The Commission may choose to subject its commentary to notice and comment, but it’s not required to do so.) Further, although they must be the product of notice and comment, the sentencing guidelines are not subject to judicial review when they are promulgated. That difference provides some cover refusing to defer to the commentary, because the Court can say that the holding applies only to the guidelines. Further still, since its decision in United States v. Booker, the Court has made clear that it will no longer automatically treat decisions of the Sentencing Commission as binding.

At the very least, Beckles provides an opportunity for critics of Auer to speak out again.


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