Yesterday, Cato filed two briefs, one in the Tenth Circuit and one in the Third Circuit, in cases that raise the issue of how much deference should be given to an administrative agency’s interpretation of its own regulations. Last term, in Kisor v. Wilkie, the Supreme Court altered what had been known as Auer deference, holding that courts shouldn’t be so quick to defer to agency interpretations of regulations. Lower courts are now working to put that decision into action. Both of these cases deal with the deference given to the commentaries on the criminal sentencing guidelines issued by the U.S. Sentencing Commission.

In the case out of the Tenth Circuit, Daniel Lovato was convicted of two charges of unlawful possession of a weapon and was given an extended sentence based on his prior conviction for attempted second‐​degree assault. In the one out of the Third, Malik Nasir was convicted of three drug charges and unlawful possession of a firearm. Nasir was given an extended sentence based on his designation as a “career criminal” for having two prior drug convictions, one of which was only an attempted possession.

The Sentencing Commission issues guidelines that judges use to determine the sentences of convicted criminals. One of these guidelines requires harsher sentencing for those who have committed previous crimes of violence or previous controlled‐​substances offences. But the guidelines do not include attempts—that interpretation is only in the commentaries to the guidelines.

The guidelines, like regulations issued by federal agencies, are legally binding. Judges have usually deferred to the commentaries on the guidelines, giving almost authoritative weight to the commission’s interpretations. But that type of deference was altered by the decision in Kisor. Lovato and Nasir have challenged their sentences on these grounds. Lovato is asking the Tenth Circuit to rehear the case en banc (meaning every judge on the circuit will hear the case rather than the typical three‐​judge panel) and, in Nasir’s case, the Third Circuit recognized the importance of the issues raised and called for an en banc rehearing after the three‐​judge panel argument.

Deference to the Sentencing Commission’s commentaries is exactly the kind of deference that was rolled back by Kisor. Kisor said that courts should look to agency interpretations (here, the commentaries) only if the regulations (the guidelines) really are ambiguous. Past courts didn’t look for ambiguity in the sentencing guidelines before deferring to the commentaries, so Kisor makes them outdated. Furthermore, the guidelines are not ambiguous as to whether Lovato’s and Nasir’s attempts count for sentence augmentation—they don’t. That, not the commentaries, should decide this case.

Cato filed an amicus briefs in both cases. Whether or not Lovato and Nasir deserve stiffer sentences, the commentaries to the guidelines are not law in any meaningful sense and judges shouldn’t be deferring to them. Otherwise, American citizens will continue to spend additional years in prison on the basis of interpretations that are not law. The circuits should take this opportunity to make clear that the protections which the Supreme Court has outlined against this kind excessive deference will be respected by the lower courts.