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- Title
A NEW SPLIT IN THE ROCK: REFLEXIVE DEFERENCE UNDER STINSON OR CABINED DEFERENCE UNDER KISOR?
- Authors
LESKE, KEVIN O.
- Abstract
In 2019, the Supreme Court of the United States reexamined the Seminole Rock deference doctrine in Kisor v. Wilkie. The venerable doctrine requires federal courts to defer to an administrative agency's interpretation of its own regulation unless the interpretation "is plainly erroneous or inconsistent with the regulation." Yet despite its profound significance in our administrative state, the doctrine had escaped judicial and scholarly examination for over seventy years. In my 2014 article on the Seminole Rock doctrine, I exposed widespread inconsistences among the courts of appeals on many aspects of the doctrine, including the relevant factors to be weighed when applying the doctrine, as well more fundamental questions concerning its scope and applicability. Unsurprisingly, this analysis also revealed that this confusion resulted in numerous circuit splits such that it was just a matter of time before the Court reevaluated the doctrine. In Kisor, in the narrowest of margins, the Court preserved the doctrine despite vociferous calls for its retirement. But in saving the doctrine, the Court also "cabined" its application by constructing a multi-factor framework to help guide the lower courts. As is typical after the Supreme Court introduces a decision, many questions have been left to the lower courts to answer. Although the percolation of such issues by the lower courts generally takes many years, one question has already surfaced in an extremely important area of law: criminal sentencing. More specifically, a new Seminole Rock circuit split has quickly emerged on whether Kisor's newly minted test applies to when courts determine whether to defer to the Commentary that accompanies the U.S. Sentencing Commission Guidelines. In 2021, the Sixth Circuit and the Third Circuit (sitting en banc) held that Kisor's revised framework now governed their analysis. This meant that Kisor implicitly overruled the Supreme Court's 1993 decision in Stinson v. United States. Under Stinson, courts are "reflexively" required to give the Commentary (which is akin to an agency interpretation) controlling deference—even when the underlying Guideline is unambiguous. Then, in January of 2022, the Fourth Circuit found, in contrast to the Sixth and Third Circuits, that Stinson still controls and the Court’s deference analysis of whether to defer to the Commentary was therefore unaffected by Kisor. With this new circuit split now realized, this Article analyzes the key cases including Bowles v. Seminole Rock & Sand Co., Kisor v. Wilkie, Stinson v. United States, and the conflicting decisions by the courts of appeals. While trying not to prejudge the split on the merits, it also provides additional insight on both legal and policy issues that animate these conflicting decisions. This will be especially helpful as courts apply the Kisor framework in related and overlapping areas. The Article concludes that, especially due to the paramount liberty interests involved in criminal sentencing, the Supreme Court should once again revisit the doctrine to bring clarity to this important area of federal law.
- Subjects
JUDICIAL deference; GOVERNMENT regulation; ADMINISTRATIVE procedure; JUDICIAL process; GOVERNMENT agencies; LEGAL judgments; CRIMINAL sentencing; UNITED States. Supreme Court
- Publication
Administrative Law Review, 2022, Vol 74, Issue 4, p761
- ISSN
0001-8368
- Publication type
Article