•  
  •  
 
Emory Law Journal

Abstract

Can one lose something they still have? Apart from this potential brainteaser, a common sense understanding of loss requires an item to actually be removed from its owner. Nevertheless, under the United States Sentencing Commission Guidelines, an interpretive rule automatically punishes convicted defendants for money they never took by including “intended loss” in the definition of loss. This interpretive rule multiplies the number of years a defendant spends in prison due to the doctrine of Auer deference, even though such a rule is not supposed to have the weight of law. Auer deference requires courts to defer to agency interpretations of ambiguous agency regulations—ignoring that the very same agency failed to promulgate a clear regulation. Furthermore, the rule of lenity, an ancient doctrine privileging a criminal defendant if the government fails to be clear in writing rules that affect their liberty, gets consigned to oblivion when a court relies on Auer to resolve an ambiguity. This binding deference harms politically powerless groups, such as criminal defendants, to the greatest degree as they are not likely to mount criticisms to ambiguous rule promulgations at the notice-and-comment phase. When agencies create defining interpretive rules, no outside voices enter the decision-making process, exacerbating these power imbalances.

The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo emphasized how doctrines of binding deference that rely on a finding of ambiguity lead to unpredictability and result in an abandonment of judicial authority to decide matters of law. Auer deference suffers from these ills. After the overturning of Chevron deference, this lingering deference is inconsistent with courts returning as the interpreters of ambiguity. Judicial predictability and fairness require courts to reclaim their proper place as the deciders of the fates of criminal defendants, without disregarding key interpretive tools. This Comment argues that the Court’s reasoning in Loper Bright necessitates overturning Auer deference to restore fairness to the sentencing system and rebalance the separation of powers.

Download

Included in

Law Commons

Share

COinS