By Shana-Tara O’Toole | Due Process Institute | President
Administrative agencies staffed by policy experts can help inform laws and regulations in ways that a general legislature may not have the capacity to do. For that and other reasons, I recognize the important role administrative agencies serve in our vastly complex globalized world and economy. But the constitutional guarantees of due process of law prohibit the imposition of criminal penalties by executive fiat—even when executed by an administrative agency that serves a legitimate role in American governance. Ultimately, it is Congress who is empowered to write criminal laws and to impose new or longer penalties on persons accused of violating them. Therefore, we recently filed three separate amicus briefs urging the U.S. Supreme Court to stop lower federal courts from relying on non-binding and undemocratic administrative interpretations to impose harsher penalties on criminal defendants.
Agency Deference: A Primer
In 1997, the Supreme Court held in Auer v. Robbins that courts should defer to administrative agencies in interpreting their own rules. Auer applied the principle laid out in Chevron v. Natural Resources Defense Council (1984), in which the Court deferred to administrative agencies to interpret unclear statutory text in their ambit so long as Congress hadn’t explicitly expressed contrary opinion and the interpretation was “reasonable.”
For years, these decisions and their implications—referred to by the case names, Auer and Chevron deference—have been criticized for being too permissive of arbitrary executive action. Although this critique has particular purchase on the political right and among the business community, the constitutional and practical issues that have emerged in the wake of these decisions should concern those on the left as well.
When administrative agencies want to create new regulations under their existing statutory authorities, they must—by law—go through certain procedures to respect the democratic process. In particular, agencies must subject new regulations to a “notice and comment” period, during which any interested members of the public may weigh-in on proposed regulatory changes and raise concerns. While certainly not a perfect system, notice and comment is a public announcement of potential policy changes, provides opportunity for feedback, and potentially leads an agency to further consider their proposed action before those changes impact people’s lives.
However, with increasing frequency, federal agencies are not honoring the modest “notice and comment” procedures required by the Administrative Procedure Act and instead are unilaterally interpreting statutes or regulations. Those unilateral interpretations are then given the force of law [and granted deference by courts] despite the fact that there has been no such opportunity for public input (and therefore no constitutionally adequate “notice”). [1] And if an agency interprets a law or regulation in a way best suited to the agency’s own institutional or even politically motivated prerogatives, I hope everyone can recognize how a closed, one-sided decision-making process by executive branch employees could ultimately work against the public interest.
The Supreme Court has previously recognized the emergent problems from its deference jurisprudence and has taken steps in the past to rein in particular abuses. For example, as the Court wrote in Christiansen v. Harris County (2000), in some instances “[t]o defer to the agency’s position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.” The Court recognized that being overly deferential to agencies can allow agencies to inappropriately bypass democratic processes.
At the same time, the Court has desired to continue to provide regulatory agencies with the authority to carry out their executive missions. To try to find a way to bridge the gap between too much and too little power, the Court has set up various legal standards in an attempt to guide regulatory agencies to prudently exercise their discretion and also to provide tests for courts to use in judging the soundness of the agency’s conduct when it is challenged.
These deference tests have evolved since the first two-pronged test was laid out in Chevron. This continuous evolution, as well as the size and scope of administrative agencies, have caused much consternation on the right, which, when paired with the conservative majority on the Supreme Court, has made some good-government advocates on the left fearful of an all-out assault on the administrative state writ large.
But as our most recent amicus briefs argue, the status quo isn’t working—particularly in the criminal law context in which people’s liberty is at stake. Problems continue to arise because many federal courts continue to reflexively defer to agency interpretation without first considering whether that interpretation is even necessary in the first place and their decision to do so has some very serious consequences.
Agency Deference in the Criminal Sentencing Context
As most readers of this blog will know, sentencing someone convicted of most federal crimes is essentially governed by the Federal Sentencing Guidelines—a set of rules that set out a recommended prison sentence for those convicted of felonies and serious misdemeanors. These Guidelines are the product of an independent federal agency, the United States Sentencing Commission (USSC).
In Stinson v. United States (1993), the Supreme Court held that courts must defer to the USSC’s commentary regarding the Federal Sentencing Guidelines unless that commentary “is inconsistent with, or is a plainly erroneous reading of that Guideline.” In our opinion, the Stinson decision was overly deferential to the U.S. Sentencing Commission and expanded its role beyond its proper authority. And that decision has had unfortunate and predictable consequences. For those of you who are getting bored reading this blog post (and I don’t blame you), here’s why all of this matters: this deference to agency commentary has resulted in courts extending the sentences of some defendants by as much as 2,000 days longer than the Guidelines themselves recommended.
As we write in our amicus brief filed in Tabb v. United States: “Following Stinson, the courts of appeal began to give nearly dispositive weight to the Commission’s commentary over the Guidelines’ plain text…. It is no coincidence that several courts of appeals read Stinson as requiring reflexive deference” (citations and quotations omitted).
Had courts properly applied Auer deference in criminal cases after 1997, this particular problem with Stinson may have resolved itself. Auer—borrowing language from Chevron—instructs courts to defer to agency interpretation only after “traditional tools of construction” have been exhausted, which in the present context, should preclude any other comment made by the USSC because the plain text of the Sentencing Guideline would govern. But unfortunately, courts have continued to rely on Stinson rather than Auer deference.
In the 2019 opinion Kisor v. Wilkie, Justice Kagan tried to fix things by making the governing test even more explicit:
First and foremost, a court should not afford Auer deference unless, after exhausting all the “traditional tools” of construction, the regulation is genuinely ambiguous. A court must carefully consider the text, structure, history, and purpose of a regulation before resorting to deference. If genuine ambiguity remains, the agency’s reading must still fall within the bounds of reasonable interpretation (citations omitted).
And even then, not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference. Rather, a court must also make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight.
Unfortunately, in the time since Kisor was decided, most of the federal circuits still have not applied the Kisor test to the Stinson line of cases or not done so correctly. Therefore, in these three amicus briefs, we are urging the Supreme Court to give the proper guidance to the lower courts and to bring relief to a series of defendants whose terms of incarceration are much longer than they should be.
Add to the Mix: The Rule of Lenity
In our briefs, blog posts, and other commentary, Due Process Institute mostly focuses on specific procedural justice issues that due process demands: speedy trial, right to assistance of counsel, protection from unreasonable searches and seizures, to name a few. But in addition to those specific procedural promises, we stand behind the broader principles of fairness and justice from which our due process safeguards come from. One such principle is the “rule of lenity.”
The “rule of lenity” is a legal principle that means when there is confusion about what a criminal law actually means, due process requires that defendants do not suffer from the law’s ambiguity. Put another way: when the criminal law is unclear, judges should ensure that the defendant’s argument is the one that should “get the benefit of the doubt” instead of the government’s interpretation. In the current context, if a particular Sentencing Guideline could be interpreted to mean more than one thing, the rule of lenity requires that the court choose the less harsh interpretation.
To be clear, the rule of lenity isn’t just an aspirational principle. As a component of due process, it is our view that the rule of lenity must be considered among the “traditional tools of [judicial] construction” when a court weighs the legitimacy of agency interpretation. [2] Therefore, when interpreting an unclear law or regulation, courts should ensure they are not deferring to the agency position when its interpretation would punish someone more harshly than Congress has expressly authorized.
In the three recent cases in which we have filed amicus briefs–Broadway v. US, Lovato v. US, and Tabb v. US–we ask the Court to not only hear these cases to give relief to defendants who were given unnecessarily long sentences after lower courts gave improper deference to the USSC, but we also continue to argue in favor of the use of the rule of lenity versus deference to agencies when interpreting ambiguous legal standards. As criminal justice reform advocates, we must support restricting agency deference to prevent unelected, unaccountable regulators from acting unilaterally to impose greater sentences on criminal defendants. Every day spent behind a prison’s walls matters profoundly; regulators should not be able to add decades to a defendant’s sentence without appropriate due process.
[1] For more discussion on the recent interplay between agency guidance and criminal law, please read Brett Tolman, Curing America’s Addiction to Overcriminalization, Bloomberg Law (Oct. 19, 2020).
[2] For more on the rule of lenity, read Shon Hopwood, Restoring the Historical Rule of Lenity as a Canon, New York University Law Review, Vol. 95, No. 4, Pp. 918-95 (2020).