Discussion of Loper Bright in Stinson Deference Case Highlights Justices’ Skepticism 

Two weeks ago, the Supreme Court heard oral argument in Beaird v. United States, a case in which it will consider whether Stinson v. United States still correctly states the rule for the level of deference owed to the U.S. Sentencing Commission’s commentary on its Sentencing Guidelines.  Most of the justices appeared reticent to upset Stinson, notwithstanding the overruling of Chevron deference two years ago in Loper Bright.  Justice Gorsuch, however, signaled support for the petitioner while raising some deeper questions left unresolved by Loper Bright regarding the continued viability of implied delegation. 

Case Background: Unlawful Gun Possession 

As I previously recounted, Beaird involves an individual—Kendrick Beaird—who pleaded guilty to unlawful gun possession.  During sentencing, Mr. Beaird objected to a sentencing enhancement predicated on the attachment of a seventeen-round magazine to his semiautomatic firearm.  He specifically argued the Commission’s definition of a “large capacity magazine” impermissibly expanded the scope of the Guidelines.  The district court judge overruled that objection, and concluded Mr. Beaird should face up to seventy-eight months of imprisonment.  In a short, unpublished per curiam opinion, the Fifth Circuit affirmed the judgment of the district court. 

Why Stinson Deference is Under Review 

Although Chevron deference no longer exists, federal courts continue to apply other deference doctrines that the Supreme Court has yet to revisit.  Earlier this month, for example, the Court declined to take up PG Publishing Co. v. National Labor Relations Board, which sought review of the “highly deferential” treatment given to the NLRB’s interpretations of its own statutory authority, the National Labor Relations Act.  Beaird is an exception—the Court has expressly agreed to reconsider Stinson deference. 

Again, Stinson deference presently requires courts to defer to the Sentencing Commission’s interpretation of its Guidelines, as reflected in the Commission’s official commentary.  Yet there is significant tension between the reasoning underlying Loper Bright and the notion that courts ought to defer—in the criminal context, no less—to interpretive guidelines developed by an entity neither subject to executive-branch supervision nor directly answerable to Congress.  Additionally, Stinson not only challenges the interpretive role of the judiciary, as instantiated by federal judges in discrete cases, it can also cut against the rule of lenity.   

If judges are supposed to be in the business of exercising independent judgment and articulating the best meaning of the law, especially when individual freedom and criminal penalties are on the line, the Commission’s view about the meaning of the Guidelines should matter little, except perhaps as evidence of the original public meaning of the statutes relevant to a case.  Numerous amici made this argument (e.g., here and here), while highlighting how Kisor v. Wilkie and the displacement of Auer/Seminole Rock has undermined the doctrinal foundations of Stinson deference (e.g., here)—the very position the federal government has taken in the case. 

And Yet the Court Seems Unbothered

Most of the justices who explored the impact of Loper Bright during oral argument doubted it had any real relevance to the viability of Stinson deference moving forward.  Chief Justice Roberts, for example, noted many of the concerns animating Loper Bright were inapposite in the sentencing context precisely because the Guidelines constitute “non-binding advice.”  Here, the Chief was referring to the Court’s 2005 decision in United States v. Booker, in which it determined that mandatory use of the Guidelines was unconstitutional.  Justice Kavanaugh made this same point, describing Booker as “mitigat[ing] the concerns” surrounding the Commission’s commentary somehow binding judges’ hands. 

The court-appointed amicus, Anthony Dick, continued that theme.  While conceding that, per Loper Bright, “[i]t is emphatically the province of the judiciary to say what the law is,” Mr. Dick maintained the Commission’s interpretative commentary was purely “advisory” and not an explanation of “what the law is but, rather, what is the non-binding advice that the Commission is offering[.]”  In other words, while the commentary might be “binding on what the Commission’s advice means,” “[i]t’s not binding in the sense that courts have to follow it.”  Together with the fact the Commission is not subject to the Administrative Procedure Act, Mr. Dick insisted Loper Bright’s holding on the proper standard of review under Section 706 should be entirely irrelevant to the continued viability of Stinson deference. 

Except for Justice Gorsuch 

Justice Gorsuch, by contrast, appeared deeply skeptical of Stinson, both doctrinally and practically.  When questioning petitioner’s counsel, for example, he asked whether the statutory silence in the Sentencing Reform Act that gave rise to the implicit delegation on which Stinson was based could be sustained after Loper Bright.  In a later colloquy with counsel for the government, Justice Gorsuch straightforward queried how, “as an original matter,” “you [can] defend silence . . . as a delegation and ambiguity as a trigger[.]”  Finally, when engaging with the court-appointed amicus, he asked: “[W]here are there any words [in the statute] saying that the Sentencing Commission shall have something binding . . . in policy statements, let alone commentary”? 

Justice Gorsuch relatedly highlighted the potential implications of preserving a sort of implied authority for issuing interpretive guidance based on an express delegation: 

If we found that were enough to commit to the Commission the power to issue . . . binding interpretations [of the Guidelines], what would be left of Loper Bright?  . . .  [D]o[n’t] . . . most agencies have the power to issue interpretive rules and guidance documents? 

Indeed, Justice Gorsuch called it a “topsy-turvy world” where, post-Booker, the Commission’s “commentary is binding” on courts’ reading of the Guidelines, though “the guidelines [themselves] aren’t” mandatory—a situation he further described as “creeping up to a Booker problem again.”  The court-appointed amicus, on this point, suggested that “interpreting a guideline is part and parcel of the power to apply the guideline because, if you don’t interpret the guideline to know what it means, you can’t know how it applies.”  (Justice Jackson would agree, having claimed at the outset of argument that the “guidelines and commentary are “inextricably linked”!) 

Justice Gorsuch’s questions highlight perhaps the strongest objection to Stinson, namely, reliance on presumptions and implied delegation that sit uneasily with the central reasoning of Loper Bright.  Even in the context of an express statutory delegation for the drafting of the Guidelines, it is wrong to require judges to defer also to the Sentencing Commission’s interpretation of those guidelines, which undoubtedly implicate legal (though not necessarily statutory) questions.  Further, there is a sense in which these concerns are conceptually related to objections regarding the danger of “housekeeping” delegations.  Courts will sometimes treat general delegations to issue interpretative or procedural rules as authority for an agency to engage in legislative rulemaking beyond the limits anticipated by Congress.  Yet, as with any species of implied delegation, serious interpretive problems abound.   

The Chief Justice cautioned in Loper Bright that “statutory ambiguity . . . is not a reliable indicator of actual delegations of discretionary authority to agencies,” and the “very point of the traditional tools of statutory construction . . . is to resolve [such] statutory ambiguities,” including “when the ambiguity is about the scope of an agency own power.”  Relying on implied delegation, whether based on textual ambiguity or—worse yet—silence undermines Loper Bright so far as it permits judges to pass the buck on important interpretive questions.  That gets to the heart of the matter—the underlying importance of Article III for framing the judicial role.  And this concern over ownership of interpretation is hardly absent when dealing with the Sentencing Commission, its guidelines, and its commentary. 

Ryan P. Mulvey is senior policy counsel at Americans for Prosperity Foundation.