Tim Steininger


Under Kisor v. Wilkie, courts must defer to agencies’ interpretations of regulations when certain conditions are met. Lower courts continue to diverge, however, when it comes to the deference due the United States Sentencing Commission’s commentary. The Supreme Court has declined to come to the circuits’ aid. Commission commentary interprets its Guidelines. Guidelines are necessarily subject to the Administrative Procedure Act’s notice-and-comment requirements and congressional control; commentary is not. Given the heightened stakes inherent in sentencing, some argue that the rule of lenity should apply when a court considers deferring to commentary. This Note argues that such an approach should not be adopted. Kisor adequately protects the constitutional concerns underlying the rule of lenity. Judges should not use lenity to undercut policy judgments that Congress entrusted to the Commission. When there are legitimate reasons beyond those accounted for by Kisor to withhold deference in a given case, courts should instead carefully scrutinize whether an advisory note interprets or expands the relevant Guideline. This is an inquiry that the APA requires judges to make, and it preserves a meaningful role for judges in the Kisor framework.

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