Hear Auer deference, and you’re unlikely to think of criminal law.  After all, Auer deference is a doctrine of administrative law, and administrative law has traditionally been viewed as separate from criminal law.  And it’s true, Auer deference does not often come up in determining whether a substantive criminal violation has occurred.

But Auer deference does play a significant role in federal sentencing.   The U.S. Sentencing Commission promulgates federal sentencing guidelines that prescribe punishment ranges for criminal defendants.   The Sentencing Reform Act directed that those guidelines be binding, but in United States v. Booker, 543 U.S. 220 (2005), the Court rendered the guidelines advisory to avoid a 6th Amendment problem.  Still, federal law requires courts to consider the guidelines at sentencing, and they are the most important consideration.

The Commission often provides commentary that explains how and when a guideline should be applied.  This commentary appears alongside the guidelines themselves in the Federal Guidelines Manual.  In Stinson v. United States, 508 U.S. 36 (1993), the Court held that this commentary is entitled to Auer deference.  Commentary accordingly is binding on the courts so long as it is consistent with the guidelines and other laws.

It is not surprising that commentary receives Auer deference.  The guidelines are regulations, and commentary constitutes the Commission’s view of how its guidelines should work.  What is surprising is that commentary is the only Commission material that receives Auer deference.

The Commission produces all sorts of documents—including press releases, reports, and   speeches—related to the guidelines.  Courts have not said that these non-commentary statements receive Auer deference.

It is possible that courts have not extended Auer deference to these materials simply because they have had no occasion to do so.    The Commission has generally been careful to avoid proclaiming its position on what the guidelines mean outside the Manual.  For example, although the Commission produces primers that describe how to apply the guidelines, each primer includes a disclaimer stating that the information in the primer does not necessarily represent the views of the Commission and should not be treated as binding.  While some Commission statements offering a gloss on the guidelines do not contain such disclaimers, the government may not have argued that those interpretations should receive deference.

But there is another explanation for why non-commentary interpretations have not received Auer deference. Stinson and subsequent opinions suggest that, when it comes to Auer deference, commentary is special.  Those opinions do not say “Commission interpretations” receive Auer deference.  Instead, they say that “commentary” receives Auer deference, and some opinions highlight that limitation by juxtaposing Commission “commentary” with other “agency interpretation[s] of [their] own regulations.” E.g. Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1214 (2015) (Thomas, concurring in the judgment).

Although limiting Auer deference to commentary is anomalous, there are some justifications for the limitation.  One is that the guidelines result in criminal punishment.  They therefore raise some of the same concerns as substantive criminal law.  For this reason, courts have held that the guidelines must satisfy at least some of the heightened notice requirements applied to criminal laws.  For example, the Supreme Court has held that the ex post facto clause prohibits the retroactive application of new sentencing guidelines that disadvantage defendants, and several circuits have held that overly vague sentencing guidelines are unconstitutional.  Limiting Auer deference to interpretations rendered in the commentary helps protect this notice interest. Instead of having to review everything the Commission says, potential criminals can stick to reviewing the Guidelines Manual, which contains both guidelines and commentary.

Another reason to limit Auer deference to the commentary is that, although they must be the product of notice and comment, the sentencing guidelines are not subject to judicial review when they are promulgated. Not having to justify the guidelines to a court results in the Commission having broader discretion in promulgating the guidelines. Broad Auer deference also increases agency discretion. To the extent that critics complain that agencies have too much discretion, limiting Auer deference to a single source of interpretation—the commentary—responds to that complaint.

Even though these reasons don’t apply to all other types regulations, it still seems like it would be a good practice to limit Auer deference to interpretations from particular sources, just as United States v. Mead Corp., 533 U.S. 218 (2001), limits Chevron deference to interpretations from particular sources. One complaint about Auer deference is that it requires regulated entities to be constantly vigilant for new agency interpretations. Limiting Auer deference to only a few sources would go a good way towards addressing that complaint.

This post is part of an online symposium entitled Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations. You can read the entire series here.