Loper Bright Surfaces in the Supreme Court’s Opinion in Rutherford v. United States   

Last week, in Rutherford v. United States, the Court held 6-3 that certain nonretroactive changes to federal mandatory minimum sentences effectuated by the First Step Act (FSA) do not qualify as an “extraordinary and compelling reason” that can justify a reduced sentence under the “compassionate release” exception to the general rule against district courts modifying imposed sentences. In plain English: the Court’s ruling means the FSA’s sentencing reforms cannot be used to justify reduced sentences and early release for prisoners already convicted of those same offenses, even though they may have been punished more harshly under the old sentencing regime.  It does not matter how extreme the difference in penalties may be or how unfair that result is as a policy matter. More theoretically, this decision may provide some insight into how the Court goes about identifying and construing statutes that delegate discretion to agencies, as well as police statutory boundaries on that discretion, in the wake of Loper Bright. In fact, the Rutherford decision is the first this Term in which the Court has meaningfully discussed how delegations of discretion to agencies should be analyzed and addressed.

Background

As background, the U.S. Sentencing Commission is an independent federal agency charged by Congress with setting federal sentencing policy by promulgating guidelines and associated commentary for how district courts should decide how to sentence defendants within the statutory range of permissible punishments. Although these guidelines are not technically binding on courts for constitutional reasons, they carry significant weight. The compassionate release provision at issue in Rutherford, 18 U.S.C. § 3582(c)(1), authorizes a district court to impose a reduced sentence if, among other things, it finds “extraordinary and compelling reasons warrant such a reduction . . . and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Elsewhere, 28 U.S.C. § 994(t) provides that the Sentencing Commission “shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples,” with the express limitation that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” The Sentencing Commission has done so on several occasions, most recently in 2023, when it added an “Unusually Long Sentence” as a possible reason for a reduction. It also added a subsection titled “Limitations on Changes in Law,” which provides that, except for those types of unusually long sentences, nonretroactive changes in sentencing law cannot “be considered for purposes of determining whether an extraordinary and compelling reason exists” but may be taken into account in determining the length of a sentence reduction if other requirements are met. Against that backdrop, the question presented in Rutherford was “[w]hether . . . a district court may consider disparities created by the First Step Act’s prospective changes in sentencing law when deciding if ‘extraordinary and compelling reasons’ warrant a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i).”

The Majority’s Application of Loper Bright: the Limits of Delegated Discretion

The majority opinion, authored by Justice Barrett and joined by Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh—the six Justices in the majority in Loper Bright—first concluded, as a matter of straightforward statutory construction using traditional interpretive tools such as dictionary definitions, that nonretroactive changes in sentencing law cannot qualify as “extraordinary and compelling reasons” that may justify early release. In so doing, the Court bounded the Commission’s discretion, noting that “[i]nsofar as the Commission’s amended policy statement maintains otherwise, it conflicts with the statute.” The Court reasoned that, “[w]hile the terms ‘extraordinary’ and ‘compelling’ leave room for judgment, they are not so flexible as to encompass any consideration. Their meaning depends on context[.]”

Next, Justice Barrett turned to the Sentencing Commission’s role. This is where Loper Bright comes in. Justice Barrett reiterated the statutory requirement that sentence reductions must be “consistent with applicable policy statements issued by the Sentencing Commission” and that Congress specifically tasked the Commission with describing “extraordinary and compelling” circumstances that might warrant a sentence reduction. But the majority rejected the suggestion that the Court’s “interpretation of the statute must yield to the policy statement.” It instead explained how Congress set limits on the Commission’s discretion to elucidate the meaning of “extraordinary and compelling” circumstances:

Congress has empowered the Commission to ‘give meaning’ to the compassionate release provision by identifying the circumstances that constitute ‘extraordinary and compelling’ reasons for release. Even so, the Commission’s policy statements must be “consistent with” the governing statute, 28 U.S.C. §994(a), and courts have a duty to “independently interpret the statute and effectuate the will of Congress[.]”

Quoting Batterton v. Francis, which Loper Bright cited as an example of an express delegation to an agency, the majority further explained that the Court is “not bound to follow the Commission’s guidance when it ‘exceed[s its] statutory authority’ by adopting a definition of a term that is inconsistent with the statute. Put differently, the Commission’s interpretation must land within the statutory goalposts, no matter how wide they might be.”  Although the Court declined to “nail down the precise boundaries of the phrase ‘extraordinary and compelling,’” it found that, in this context, the statute’s meaning was plain: “The statutory text and structure make clear that Congress’s nonretroactive change to §924(c)—considered by itself or in combination with other factors—cannot make a prisoner eligible for compassionate release. To the extent that it counsels otherwise, the Commission’s policy statement is invalid.” 

The Dissent’s Take: Flexibility and Batterton

Justice Sotomayor, joined by Justices Kagan and Jackson, dissented, taking a different view of Loper Bright’s import and application to this statutory interpretation dispute. In the dissent’s view, the Commission’s 2023 changes to the Sentencing Guidelines to authorize consideration of nonretroactive sentencing law was a valid exercise of its discretion: “Properly framed, the question presented by these cases is whether the Commission acted unreasonably when it issued that guidance. It did not.” Justice Sotomayor wrote: 

Congress’s express delegation of authority to the Commission limits this Court’s role in these cases. Congress often “authorize[s]” agencies “to exercise a degree of discretion.” . . . “For example, some statutes ‘expressly delegat[e]’ to an agency the authority to give meaning to a particular statutory term.” . . . “Others empower an agency to prescribe rules to ‘fill up the details’ of a statutory scheme.” . . . Others still authorize agencies to “regulate subject to the limits imposed by a term or phrase that ‘leaves agencies with flexibility,’ . . . such as ‘appropriate’ or ‘reasonable.’”

The Sentencing Reform Act does all those things.

When a statute expressly delegates authority to an agency in this way, “[a] reviewing court is not free to set aside” the agency’s actions “simply because it would have interpreted the statute in a different manner.” . . . Instead, the Court must determine “‘the boundaries of [the agency’s] delegated authority’” and “ensur[e] the agency has engaged in ‘reasoned decisionmaking’ within those boundaries.”

The dissent also parted ways with the majority on the proper scope of “extraordinary and compelling,” writing that “the Court should have upheld the Commission’s policy statement because the Commission acted reasonably when it construed the terms ‘extraordinary and compelling’ to permit courts to consider sentencing disparities caused by changes in law only in narrow circumstances and only as part of a holistic inquiry.” Looking to Batterton, Justice Sotomayor suggested the majority had “forgett[en] that th[e] Court ‘is not free to set aside’ the Commission’s policy statement ‘simply because it would have interpreted the statute in a different manner[.]’”

Conclusion

The dissent’s framing of Batterton is arguably in tension with Loper Bright’s core teaching that statutes have a single best reading fixed at enactment, which—subject to constitutional limits—may delegate discretion to agencies. As Loper Bright itself described the relationship between courts and agencies:

When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, “fix[ing] the boundaries of [the] delegated authority,” . . . and ensuring the agency has engaged in “‘reasoned decisionmaking’” within those boundaries[.]”

Courts are thus tasked with independently interpreting the meaning of words in a statute to fix the goalposts within which the agency may exercise discretion. Justice Kavanaugh did this, for example, last Term in Seven County Infrastructure Coalition v. Eagle County, Colorado. The context there was a dispute over the proper scope of “detail” included in environmental reports required under NEPA. (I analyzed the Seven County decision here.) Rutherford should be no different. The meaning of the words “extraordinary and compelling,” in this context, is likewise a question for the courts to decide de novo, at least in the sense of setting outer limits within which the Sentencing Commission may exercise certain discretionary judgment to flesh out that meaning.

Michael Pepson is regulatory counsel at Americans for Prosperity Foundation.