Auer Deference: He Who Writes the Law Must Not Adjudge its Violation

Authors

William G. KennedyFollow

Publication Date

Winter 12-1-2025

Abstract

This Comment explores Auer deference and its application to the Sentencing Guidelines, the Sentencing Commission, and its commentary. Auer deference, in its simplest form, requires courts to give controlling weight to an agency’s interpretation of its own regulations unless it is plainly erroneous or inconsistent with the regulation. Following the Court’s decision in Kisor—expressly limiting Auer’s application, the circuit courts have disagreed on the applicability of Auer to the Sentencing Commission’s commentary regarding career offender designation. This disagreement begs for an appearance before the Court of Last Resort, but until that day, the courts must rigidly apply Kisor to deference cases. A stricter application will prevent administrative agencies from circumventing notice-and-comment procedures, conforming to the traditional canons of construction, and promoting clarity in rulemaking for the benefit of the public.

Recommended Citation

Kennedy, William G. (2025) "Auer Deference: He Who Writes the Law Must Not Adjudge its Violation," Mississippi College Law Review: Vol. 43: Iss. 1, Article 10.
Available at: https://dc.law.mc.edu/lawreview/vol43/iss1/10