Matthew Cavedon
The US government operates on a division of labor: the legislature makes law, the executive implements law, and the judiciary interprets law. Two years ago, in Loper Bright Enters. v. Raimondo, the Supreme Court definitively rejected agencies’ appropriation of the power to interpret ambiguous statutes. Here, the Cato Institute filed an amicus brief asking the Court to reject agencies’ appropriation of the power to interpret ambiguous regulations. Allowing agencies to wield both the power to make law and the power to interpret it violates the separation of powers, encourages agencies to make bad rules, and displaces traditional legal rules.
Petitioner Kendrick Jarrell Beaird entered a guilty plea to a single count of felon-in-possession of a firearm. He faced an enhanced sentence for possessing a “large capacity magazine.” This finding was based on the district court’s deference to US Sentencing Guidelines commentary, which defined “large capacity magazine” as any magazine that accepts more than 15 bullets of ammunition.
The Supreme Court has held that because the US Sentencing Commission “drafts the guidelines as well as the commentary interpreting them,” the latter should receive the deference afforded to an agency when interpreting its own regulations. This means an agency’s interpretation becomes the “ultimate criterion” for what an agency’s own regulation means.
Such deference gives agencies both the power to make the law and to determine what the law means, collapsing the Constitution’s careful division of powers. It also encourages them to write regulations poorly and then come up with convenient post hoc interpretations. This deference is uniquely dangerous in the hands of the Sentencing Commission, given how insulated it is from public pressure and political accountability.
Damage to the coherence of the law as a whole has come as deference to agencies replaces core legal principles—such as the rule of lenity—with regulators’ own glosses. The Court should end agency deference and send Mr. Beaird’s case back for further proceedings.
